Adrian Vermeule (Harvard University - Harvard Law School) has posted Our Schmittian Administrative Law (Harvard Law Review, 2009) on SSRN. Here is the abstract:
Our administrative law contains, built right into its structure, a series of legal "black holes" and "grey holes" - domains in which statutes, judicial decisions and institutional practice either explicitly or implicitly exempt the executive from legal constraints. Legal black holes and grey holes are best understood by drawing upon the thought of Carl Schmitt, in particular his account of the relationship between legality and emergencies. In this sense, American administrative law is Schmittian. Moreover, it is inevitably so. Extending legality to eliminate these black and grey holes is impracticable; any aspiration to eliminate the Schmittian elements of our administrative law is utopian.
And from the text:
In the modest version, once the layers of interpretive dross and continental conceptualisms are cleaned off of Schmitt’s thinking, what remains are several important mid-sized and largely institutional or empirical insights: emergencies cannot realistically be governed by ex ante, highly-specified rules, but at most by vague ex post standards; it is beyond the institutional capacity of lawmakers to specify and allocate emergency powers in all future contingencies; practically speaking, legislators in particular will feel enormous pressure to create vague standards and escape hatches – for emergencies and otherwise -- in the code of legal procedure that governs the mine-run of ordinary cases in the administrative state, because legislators know they cannot subject the massively diverse body of administrative entities to tightly-specified rules, and because they fear the consequences of lashing the executive too tightly to the mast in future emergencies. As we will see, all of these institutional features are central to our administrative law, and they create the preconditions for the emergence of the legal black holes and legal grey holes that are integral to its structure.
One more excerpts:
[H]ere is a thought experiment. Imagine a legal rule – embodied in a constitution or in a framework statute like the APA -- specifying that executive action will always be reviewable in court for conformity with law, except when the legislators or the judges decide that an exception is warranted (the action is “committed to agency discretion by law,” where “law” is understood in a loose sense). Or, alternatively, that executive action is always reviewable for failure to conform to the dictates of reason (“arbitrariness”). Or, the statute might specify an elaborate set of procedures, but specify that agencies can dispense with those procedures when they have reason (“good cause”) to do so.
This legal scheme itself sets up black holes and grey holes, at least potentially. The rules it specifies seem lawlike, and in the thin sense are lawlike; but in the thick sense they are not lawlike at all, or need not be anyway. They are just a delegation to legislators and judges to decide, in the future, whether to follow and enforce the underlying legal rules against the executive, and there are no specified standards for making that decision. The relevant actors might apply the rules in relatively thick ways in one period – dialing the adjustable parameters of review upwards – but in thin or even façade-like ways in other periods. Such a “law” comports entirely with Schmitt’s idea that the liberal lawmaker might specify, in advance, who is to exercise judgment over the exception, but that one cannot specify what will count as an exception itself; everything is left to the judgment of future actors in future circumstances. At the heart of the system of administrative rules are law-free zones and open-ended standards; and when the intensity of review under these standards becomes sufficiently low, grey holes arise.
I want to call a legal scheme like the one I have imagined a “Schmittian law,” and to say that a lawmaker who would create it is usefully described as a “Schmittian lawmaker.” And then my claim is that American administrative law quite closely resembles this law, and that the legislators, presidents, judges and other actors who created the structure of American administrative law acted (jointly) as Schmittian lawmakers. Of course they did not know they were doing so as such; doubtless none or few of them had every heard of Schmitt. But that is what they did nonetheless.
Another brilliant piece from Vermeule. Deeply interesting and highly recommended. As I always seem to be saying about Vermeule's work, I'm not sure I agree with the bottom line.
Here is one way of expressing my discomfort. Schmitt's deep insight about law is essentially Hobbesian. Some institution must have the final say (authority, or the ability to provide content-independent peremptory reasons for action) on any given issue. Vermeule's inisght is that black holes arise when authority rests outside the courts, and he argues that this is inevitable:
[T]the main point I want to suggest is not that black and grey holes are desirable; it is that they are inevitable. Black holes arise because legislators and executive officials will never agree to subject all executive action to thick legal standards, because the inevitability of changing circumstances and unforeseen circumstances means they could not do so even if they tried – one of Schmitt’s points -- and because the judges would not want them to do so in any event. There are too many domains affecting national security in which official opinion holds unanimously, across institutions and partisan lines and throughout the modern era, that executive action must proceed untrammeled by even the threat of legal regulation and judicial review, no matter how deferential that review might be on the merits.
The APA’s black holes – its general exclusion of uniquely presidential functions and its exceptions for military authorities and functions – are rough attempts to capture this longstanding consensus. Their content changes over time, but only within certain margins of adjustment; the black holes will never be entirely eliminated. Nor do judges of any party or ideological bent want to extend legality so far, partly because they fear the responsibility of doing so, partly because they understand the limits of their own competence and fear that uninformed judicial meddling with the executive will have harmful consequences where national security is at stake, and partly because it is simply never been done before.
My quibble is that as Vermeule has described them, these holes are not truly black--because their shape and status is not "content independent." When a court decides to defer for content-sensitive reasons the resultant whole may look "black," but it is actually "charcoal gray," with ultimate authority reserved to the Court to reimpose full-blooded judicial review or to convert some portion of the hole from charcoal grey to dove gray or even a whiter shade of pale. I would want to reserve the phrase "black hole" for the rare (or perhaps nonexistent) situation where the rule of recognition creates a zone of administrative or executive authority that cannot be penetrated by judicial review. A true "black hole" is problemantic, because ulitmate authority would require the power to define the boundaries of the black hole, and if this power is ultimate and authoritative, it creates the possibility of the black hole beginning to swallow up adjacent areas.
Of course, the possibility that "black holes" of ultimate executive authority might swallow up the rule of law is a familiar one. The worry is especially salient in the case of emergency powers, war powers, and deference on issues of national security. Notice that Vermeule's understanding of "black holes" is not subject to this objection--because he does not take the position that "black holes" are defined by ultimate authority. On that score, I agree with Vermeule as a normative matter. My point is modest and conceptual. Vermeule's analysis elides a different kind of black hole--which like that black holes of physics is not opaque. True black holes in physics swallow up all light. True legal black holes swallow up all judicial power.