Joseph Postell’s timely call for reconsideration of the proper judicial role in overseeing the administrative state[1] deserves serious attention. He is right that rule-of-law advocates (a term that I prefer to “conservatives”) often have so much suspicion of courts that they do not think carefully about the possibility that there is too little rather than too much judicial intervention in administrative law.[2] I believe, however, that Professor Postell may be focusing on the right issues for the wrong reasons. His main points – that judicial deference to agencies is a product of the last century rather than of original understanding of the judicial role and that simple equation of the President with the administration hides the complexity of real-world agency governance – are both correct, but neither is the real reason why rule-of-law advocates should be contemplating increased judicial involvement in administrative law.

Professor Postell’s historical point may be of limited value because the eighteenth and nineteenth century administrative state simply was not comparable to the modern leviathan. Administrative law as an integrated discipline is really a product of the last century, so it is not surprising to find relatively little serious attention paid to problems of deference before that time. As for the complexities of agency control: I am skeptical that any sound jurisprudence will give much weight to those kinds of empirical questions of political science. To be sure, Professor Postell is aiming his comments at an audience that he believes (no doubt rightly) is basing some of its jurisprudential conclusions on mistaken assumptions about political science, and there is nothing wrong with error-correction of that sort. But a case against extreme judicial deference to agencies should focus on law rather than political science.

The key step in that legal focus is to distinguish deference to agencies from deference to Congress. To a large extent, judicial deference to administrative agencies is a product of legislative command. Courts are almost always limited by statute to overturning agency factual findings only when those findings are patently unreasonable, meaning that Congress has ordered courts to uphold a great many objectively wrong agency factual determinations. The Administrative Procedure Act (“APA”), for example, authorizes courts to overturn agency factual findings in formal proceedings only when they are “unsupported by substantial evidence,” [3] where “substantial evidence” approximates the kind of evidence needed to sustain a jury verdict.[4] In non-technical terms, that means essentially enough evidence to pass a laugh test. The APA in 1946 contemplated even more deferential review of agency factual findings in non-formal proceedings,[5] but modern law has generally (though not universally) merged those two provisions into the modestly stricter “substantial evidence” standard. Numerous organic statutes prescribe similar deferential review for agency factual determinations.

Agency determinations of policy are also ordered by statute to stand unless they are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”[6] In 1946, this was understood to be equivalent to “rational basis” review in constitutional law, which is tantamount to pro forma review in which agencies will almost never lose.[7] Over the past four and half decades, courts have actually ramped up that review a bit so that it often carries considerable bite: agencies must now (as was manifestly not true in 1946) explain their processes of reasoning in a way that makes them comprehensible to courts and show that they seriously considered all of the relevant aspects of the problems that they were addressing.[8] But this scheme of review is cast as the interpretation of a congressional statute that prescribes the appropriate judicial role in overseeing agency policymaking.

In sum, modern review of agency factfinding and policymaking is generally prescribed by Congress – and is somewhat more vigorous than a correct interpretation of the governing statutes would mandate. To argue for more vigorous judicial involvement in either area thus requires either (1) deliberate misinterpretation of governing statutes, (2) legislative enactment of new statutes, or (3) dismissal of the governing statutes as unconstitutional.

Rule-of-law advocates will understandably be reluctant to engage in deliberate misinterpretation of statutes, though the strategy should not necessarily be dismissed out of hand. If one believes, as rule-of-law advocates surely do, that the entire apparatus of the modern administrative state is built on constitutional error,[9] a bit of statutory misinterpretation might actually push outcomes closer to the objectively correct baseline. As economists familiar with second-best theory can attest, when you are not in general equilibrium, two wrongs can sometimes make a right (or at least cannot definitively be pronounced worse than a single wrong).[10] Nonetheless, such acts of deliberate misconstruction may weaken rule-of-law values that are difficult to identify but even more difficult to reclaim when lost[11] and accordingly should be taken only with the greatest possible caution.

Strategies for legislative amendment are fine by any standard, but without significant changes in the political climate, including a new president who is not a far-left ideologue, there is little prospect of significant reform in that area.

The notion that congressional statutes prescribing deferential standards of review for courts might be unconstitutional seems to most observers at best quixotic and at worst bizarre. Nonetheless, as someone who shirks from neither label, I think that such statutes are quite likely unconstitutional, on the ground that Congress cannot tell the courts what process of reasoning to employ in deciding cases but can only prescribe applicable substantive law.[12] The likelihood of any real-world court reaching that conclusion, however, asymptotically approaches zero.

Thus, with respect to the large universe of deference to agencies that is currently commanded by statute: If Professor Postell wants reconsideration of those doctrines, he needs to spell out the mechanism(s) by which that reconsideration will take place.

Of course, there is a great deal of judicial deference to administrative action that is not commanded by statute, and perhaps Professor Postell is talking exclusively about that body of doctrine. Courts actually began deferring to agency factual conclusions well before Congress codified that deference by statute, and there is an equally long tradition of self-imposed judicial deference to a wide range of agency legal conclusions. In particular, deference to at least some broad categories of agency legal conclusions long pre-dates the Chevron doctrine that has dominated the field for the past quarter century,[13] though Chevron somewhat expands that deference (albeit probably less than its critics maintain).

I suspect that Chevron is Professor Postell’s chief target. If so, he stands on very solid ground when he urges rule-of-law advocates to rethink any kind thoughts they may have towards the doctrine. But one need not invoke history or political science to reach that conclusion: straightforward legal analysis provides ample grounds for questioning Chevron. The legal origins of the Chevron doctrine are actually quite convoluted and (for lack of a better word) unlovely;[14] deference to agency legal conclusions is not mandated by statute (and some scholars argue, with considerable force, that it is even foreclosed by statute[15]); and the originalist jurisprudential presumption should always be in favor of independent judicial review as the best understanding of the constitutionally vested “judicial Power.”[16]

Rule-of-law advocates have long been divided about the merits of Chevron. Justice Scalia was an early and consistent defender,[17] but on the other hand “it would be difficult to find a D.C. Circuit judge whose opinions showed less enthusiasm for Chevron than Robert Bork.”[18] I do not believe that this divide has much to do with either history or positive theories of the unitary executive. Rather, I believe that it represents a difference of opinion about lesser evils that cannot be resolved through the tools that either Professor Postell or I have thus far brought to the table.

If everything that passes for statutory interpretation in the modern world was really the interpretation of statutes, I suspect that deference doctrines in that area would be considerably more modest. The problem is that much of what passes for statutory interpretation in the administrative world is not really statutory interpretation. In a world in which the nondelegation doctrine is dead (and that is essentially our world), many collections of words in the United States Code are treated as though they are statutes when in fact they are simply collections of words that do not actually single out some set of things or relations in the world as referents. Rather, they are authorizations to agencies to single out sets of things or relations – in other words, authorizations to agencies to make law.[19]

Sometimes the delegations are so blatant that nobody even pretends that statutory interpretation is involved; instead, judicial review proceeds, under the “arbitrary or capricious” banner, with the recognition that the agency is making policy.[20] But on many occasions the delegations are far subtler. A great many faux statutes that would not survive an originalist-oriented delegation challenge nonetheless look enough like real statutes to create the illusion that the promulgation of norms in the name of these faux statutes is actually “statutory interpretation.”[21] But what is really going on in these situations is policymaking – or, more straightforwardly, lawmaking. In these circumstances, once the decision has been made to treat the statutes as constitutionally valid, then one must choose either courts or agencies as the second-order lawmakers. It is not at all obvious, from a rule-of-law perspective, how one would make that choice, or even what the appropriate criteria for choice might be. If political science enters the picture, it will likely be some kind of comparative institutional competence analysis between courts and agencies; I suspect that unitary executive theory will have little relevance to that determination. Thus, if Professor Postell wants rule-of-law advocates to favor courts over agencies in the lawmaking task that masquerades as statutory interpretation in the modern administrative state, he needs to make a different set of arguments than he has thus far made.

One final note: Professor Postell’s (to me) most intriguing suggestion is the revival of private damages actions against government officials. For most of the nation’s history, common-law damages actions against officials were the usual way in which both statutory and constitutional issues were raised in the federal courts; direct suit under statutory causes of action is a relatively recent development. Furthermore, government officials had no immunity from such lawsuits simply by virtue of being government officials; if their actions were unauthorized by valid laws, they were personally liable as ordinary tortfeasors.[22]

All of that changed in the past half-century with the rise of “official immunity” doctrines that shield government officials from liability for all but the most egregious instances of lawbreaking.[23] Those immunity doctrines effectively remove common-law tort suits as an effective vehicle for judicial oversight of administration. For those who believe that the law applies to everyone, even those who draw a government paycheck, official immunity ought to be a flashing red target. One very good lesson that rule-of-law advocates can take from Professor Postell’s fine article is that official immunity may be the most anti-rule-of-law doctrine of all.

* Philip S. Beck Professor, Boston University School of Law.

[1] Joseph Postell, Should Courts Tame Our Administrative State?, — (2013).

[2] It is important to note that Professor Postell is talking primarily about administrative law rather than constitutional law. That is, he is discussing the judicial role in policing the day-to-day activities of administrative agencies rather than in policing the constitutionality of the congressional legislation that creates and empowers those agencies. The latter topic also divides rule-of-law advocates; just compare, for example, Justice Scalia’s and Justice Thomas’s views in Whitman v. American Trucking Assn’s, Inc., 531 U.S. 457 (2001), on reviving the nondelegation doctrine. As the rest of this comment will illustrate, the line between administrative law and constitutional law cannot be kept entirely clear, but the focus for this exchange is on the (less glamorous but probably more important) former.

[3] 5 U.S.C. § 706(2)(E).

[4] For the range of views on exactly what this standard means, see Gary Lawson, Federal Administrative Law 474 (6th ed. 2012).

[5]See 5 U.S.C. § 706(2)(A) (authorizing overturning of agency decisions that are “arbitrary, capricious, [or] an abuse of discretion”).

[6]Id.

[7]See Lawson, supra note 4, at 700.

[8]See, e.g., Judulang v. Holder, 132 S.Ct. 476, 483-84 (2011) ( noting that “[t]he scope of our review under this standard is ‘narrow’ ” but that “courts retain a role, and an important one, in ensuring that agencies have engaged in reasoned decisionmaking”). See also FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (confirming “the requirement that an agency provide reasoned explanation for its action”).

[9] If they do not believe that, they should (with all due modesty) read Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231 (1994).

[10] For an engaging discussion of how second-best theory might apply to law, see Peter B. McCutchen, Mistakes, Precedent, and the Rise of the Administrative State: Toward a Constitutional Theory of the Second Best, 80 Cornell L. Rev. 1 (1994).

[11]See Steven G. Calabresi & Gary Lawson, Introduction: Prospects for the Rule of Law, 21 Cumberland L. Rev. 427 (1990 91).

[12]See Gary Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision-Making, 18 Const. Commentary 191 (2001).

[13] The Chevron doctrine is named for Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.¸ 467 U.S. 837 (1984). The doctrine, however, has little to do with the decision for which it is named; the doctrine was generated by lower courts, primarily the D.C. Circuit, and did not really take form in either the lower courts or the Supreme Court until many years after 1984. See Gary Lawson & Stephen Kam, Making Law Out of Nothing at All: The Origins of the Chevron Doctrine, 65 Admin. L. Rev. 1 (2013).

[14] The whole sordid saga is related in detail in Lawson & Kam, supra note 13.

[15]See, e.g., John F. Duffy, Administrative Common Law in Judicial Review, 77 Tex. L. Rev. 113, 193-99 (1998).

[16] For an argument to this effect in the context of constitutional interpretation, see Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267, 1274-79 (1996). For an extension of the argument to nonconstitutional contexts (for which Mr. Moore has absolute plausible deniability), see Lawson, supra note 12.

[17]See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 Duke L.J. 511. As it happens, however, Judge Scalia on the D.C. Circuit had very little to do with the emergence of the Chevron doctrine in that court, but that is a story for another day.

[18] Lawson & Kam, supra note 13, at 61. I do not recall Alex Kozinski being a great fan of Chevron either.

[19] For a compendium of such statutes, see Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327 (2002).

[20] No one, for example, would treat as a question of statutory interpretation calling for Chevron deference an FCC rule prescribing criteria for issuing broadcast licenses, where the statute tells the agency to grant licenses “if public convenience, interest, or necessity will be served thereby.” 47 U.S.C. § 307 (2006). Everybody understands that there is nothing to interpret; there is no there there.

[21] For example, a statute authorizing the President to set tariff rates that “equalize the . . . costs of production” between the United States and exporting nations seems to provide something to interpret – at least more than does a statute making “public convenience, interest, or necessity” the standard – but on closer analysis may not do so unless the statute itself somehow prescribes appropriate accounting methods.

[22] For a classic and dramatic example, see Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804).

[23]See Lawson, supra note –, at 947-50.