Is Our Modern Administrative State Unmoored from the Morality of Law?

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The Federalist Society
by Richard A. Epstein
Apr 24 2020

As we approach the seventy-fifth anniversary of the 1946 enactment of the Administrative Procedure Act (APA),[1] judges, practitioners, and academics continue a vigorous debate on the current state of administrative law.[2] How should Congress and the federal courts respond to criticisms of administrative agency overreach? In The Dubious Morality of Modern Administrative Law, Professor Richard A. Epstein joins this debate, addressing fundamental questions on the legitimacy of modern administrative law.[3]

Epstein brings to this task impressive credentials. He is the Laurence A. Tisch Professor of Law at the New York University School Law, the Peter and Kirsten Bedford Senior Fellow at the Hoover Institution, and the James Parker Hall Distinguished Service Professor of Law Emeritus at the University of Chicago Law School, where he is a Senior Lecturer. He has written over 20 books and numerous articles on law and other subjects. Epstein applies decades of expertise in both law and economics to his careful dissection of administrative law issues.

In his classic work, The Morality of Law, the late Professor Lon L. Fuller argued that “the moral framework for evaluating the rule of law should be independent of any assessment of the substance of the rules in question.”[4] Fuller explained that adherence to such a moral framework creates reciprocity between the citizen and the government as to the observance of such rules.[5] In their 2018 article, The Morality of Administrative Law, Professors Cass Sunstein and Adrian Vermeule recognize that many critics of the modern administrative state have relied on Fuller’s principles in expressing concern about abuses of agency power.[6] The authors explain that various judge-made doctrines enable the courts to monitor and correct agency deviations from Fuller’s principles.[7] They argue that in the “real world” of modern American administrative law, the problem is not the failure of the rule of law, but an insufficiency in agency application of the principles.[8] They also caution that Fuller’s principles must be balanced against an agency’s “institutional role and capacities, resource limitations, and programmatic objectives,” which means that agencies may need to use “open-ended standards,” proceed on an ad hoc basis, or apply managerial judgment and make difficult economic allocations in resolving issues.[9]

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https://fedsoc.org/commentary/publications/is-our-modern-administrative-state-unmoored-from-the-morality-of-law?fbclid=IwAR2bQQxmMB_LGvtYgkDWqDVCyqvPefe_t9urkTyYZjs5hbXmxfycJIgoay4

[EdinVA]

Great philosophical diatribe, but worthless.
Rules/Laws are interpreted to meet political agendas and to grow the agency, hence bring in more revenue, there is nothing altruistic about it.
Couple that with the incompetence of the congressional oversight, inspector general oversight and the corrupt legal system, the agencies can do just about anything they want.

[Bigun]

Great philosophical diatribe, but worthless.
Rules/Laws are interpreted to meet political agendas and to grow the agency, hence bring in more revenue, there is nothing altruistic about it.
Couple that with the incompetence of the congressional oversight, inspector general oversight and the corrupt legal system, the agencies can do just about anything they want.

When plunder becomes a way of life for a group of men living together in society, they create for themselves in the course of time a legal system that authorizes it and a moral code that glorifies it.

Frederic Bastiat

[Fishrrman]

There are so many laws and regulations, so complex, that they now exist in a world unto themselves.

"Morality" has no application to this tower of paper.

[Smokin Joe]

“Did you really think we want those laws observed?" said Dr. Ferris. "We want them to be broken. You'd better get it straight that it's not a bunch of boy scouts you're up against... We're after power and we mean it... There's no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren't enough criminals one makes them. One declares so many things to be a crime that it becomes impossible for men to live without breaking laws. Who wants a nation of law-abiding citizens? What's there in that for anyone? But just pass the kind of laws that can neither be observed nor enforced or objectively interpreted – and you create a nation of law-breakers – and then you cash in on guilt. Now that's the system, Mr. Reardon, that's the game, and once you understand it, you'll be much easier to deal with.”

Ayn Rand

[Bigun]

Ayn Rand

One of my all-time favorite quotes!   

[Smokin Joe]

One of my all-time favorite quotes!   

And so true!