Administrative Law’s Empire I

Many have weighed in on Justice Breyer’s recent book, Making Our Democracy Work: A Judge’s View.  They understandably focus on the sexy topics—constitutional interpretation, Brown v. Board of Education, and judicial review generally; the topics most relevant to today’s political battles—statutory interpretation and the culture wars; and Breyer’s own big, nagging question—why does the public respect the Court’s judgments.  I understand all that, find their reactions interesting, and think that they further the conversation Breyer himself wants to promote.  By that last standard, the book has proven at least a near-term success.

No one seems to read the book, however, as autobiography.  Perhaps this is equally understandable.  Although Breyer has an active public presence, he’s no fire-breather.  Unlike one of his colleagues, he defends his positions while throwing as little red meat to his opponents as possible.  If his writing is a little less entertaining or engaging for that, I imagine he’s content.

At bottom, though, the reluctance to talk of the book as autobiography may stem from Breyer’s intellectual identity.  Breyer’s an administrative lawyer—indeed, long one of the country’s best.  (Full disclosure: I worked for Breyer for a year—long before he was eyed for the Court—and, as an administrative lawyer myself, owe him a great intellectual debt.)  But we administrative lawyers get no respect.  We aren’t known as colorful characters, unless you think beige counts as a color.  And however much we insist, as Breyer himself does, that “government administration is everywhere” (107), no one seems to believe us or, worse yet, care.  No matter how often I tell my students that the United States Code, let alone our glorious Constitution, is a pygmy compared to the Code of Federal Regulations, they just snore.  Only when I tease up a case like Chevron as the anti-Marbury, as close as a law prof can get to inviting the anti-Christ himself into the classroom, do their eyes open up.

Perhaps I’m just at an age where I see myself everywhere I look, but I think the autobiographical reading is a powerful and interesting one.  It helps explain many of the concerns, the proposals, and the animating spirit of the book.  Who but an administrative lawyer would seemingly obsesses about notions of “workability,” “pragmatism,” “effectiveness,” and “consequences”—variants of which Breyer uses no less than eight times in the final half-page of his introduction (xiv)?  This is strong stuff for an administrative lawyer—the kind of thing that gets the blood pumping, when anyone can detect a pulse.  And it’s no accident, as its title announces, that the book aims to make democracy work.  Indeed, to Breyer’s mind, making democracy work is what ultimately leads the people to respect the Court’s judgments.

First, a thumbnail professional biography.  Shortly after finishing his clerkship with Justice Goldberg, Breyer worked in the Antitrust Division of Justice and, after two years, left to start teaching at Harvard Law, where he specialized in administrative law and antitrust.  Over the years, he co-authored one of the leading administrative law casebooks, wrote two very influential books on the theory and problems of regulation, was very active in the ABA’s Section of Administrative Law and Regulatory Practice, and acted as counsel and chief counsel to the Senate Judiciary Committee at the time when the government decided to deregulate the airlines, among other industries.  We tend now to think of deregulation as a product of the Reagan administration but Breyer was leading the cause in a careful form before.  In other words, if not there at the beginning of the administrative state, he was a major player in its sharpest inflection and administrative law has made up a significant part of his intellectual development.

Where does the autobiographical reading lead us?  I want to start here with the obvious: his reflections in the book on administrative law itself.  (In a later piece or two, I hope to show how deeply administrative law has shaped his thinking on individual rights and other issues.) While comprising a relatively small section of the book, his reflections on administrative law show an intellectual disposition shaped strongly by the field itself.   That disposition contrasts sharply with that, say, of Justice Scalia, another administrative lawyer, but one whose ideas about administrative law seem derivative of his views in other areas.  In other words, while both Justices Breyer and Scalia are leaders in the same field, Justice Breyer uses the lenses of administrative law to view much of the wider legal landscape while Justice Scalia uses the lenses of other areas to view much of administrative law.  Each has his center.  They’re just different.  One is a perspective developed internally from administrative law; the other is a perspective on administrative law developed externally from more general constitutional and political commitments. That isn’t to say that one is necessarily less “political” than the other.  Just differently so.

Not surprisingly, the main focus of Breyer’s discussion of administrative law is Chevron v. NRDC, in which the Supreme Court held that courts should defer to an agency’s interpretation of its own statute so long as the statute itself did not clearly indicate that the agency was wrong and so long as the agency’s interpretation was reasonable.  This is an important issue and one that a general reader can understand.  It is interesting to legal readers for a different reason: it seemingly takes back Marbury’s memorable admonition that “it is emphatically the province and duty of the judicial department to say what the law is.” At least at first glance, Chevron seems to emphatically give that power to another branch of government and one that is often a party before the Court in the very case reviewing the agency’s interpretation.  In a deep sense, this is odd.  We don’t, after all, give the plaintiff or defendant in a negligence action the power to say whether the defendant acted with reasonable care, a standard about as open-ended as one can imagine.

The traditional way of reconciling Chevron with Marbury is delegation.  There’s no problem in courts deferring to agencies’ interpretations of their governing laws if Congress delegated that law-interpreting function to them.  Justice Steven’s majority opinion in Chevron took this approach and Breyer seemingly adopts it himself (114-15, 116-17).

As quickly as he adopts this rationale, however, Breyer drops it.  He notes that “