Jeffrey Pojanowski’s new article, published in January, makes three contributions to administrative law scholarship: (1) he surveys the current landscape of administrative law theory, identifying three distinct approaches; (2) he identifies a fourth, “neoclassical,” approach, emerging out of the recent jurisprudence of the Supreme Court’s moderate conservative wing; and (3) he defends the neoclassical approach as normatively superior to the alternatives. I find (1) to be wholly convincing and immensely helpful as a way of understanding contemporary administrative law, (2) to be a useful description of what judges like Chief Justice Roberts and Justice Kavanaugh think they’re doing, but (3) to be fundamentally unpersuasive.
(1): Three schools of administrative law theory
Re (1), more legal scholarship should do what Pojanowski has done: synthesize and categorize the current horizon of scholarship in a field. It’s a very useful way of orienting oneself, especially in a field as large as administrative law. Pojanowski groups theories of administrative law into three groups:
The first group are the “administrative supremacists,” like Adrian Vermeule, Gillian Metzger, or Jon Michaels, for whom the administrative state is unproblematically constitutional and who are skeptical of judicial review of agency action, whether it comes to fact-finding, legal interpretation, or policy rationality. Because of their lack of technical expertise, courts can’t do much to improve administrative decisionmaking; and because they are the least democratic branch of government, they should defer to agency interpretations of law (which are ultimately policy judgments). For supremacists, improving administrative government is best achieved through more administrative government.
The second group are the “administrative skeptics,” like Philip Hamburger in the academy or Justices Thomas and Gorsuch on the Court, who view whole swaths of the modern administrative state as unconstitutional because in conflict with the separation of powers. Skeptics would get rid of Chevron deference and have courts, not agencies, interpret statutes. They would also (as they threatened to do in Gundy) reinvigorate the non-delegation doctrine, which would invalidate much federal regulatory legislation, and thus much of the administrative state. (The remaining regulatory activity, it should be noted, would be subject to substantial judicial deference, as it would reflect Congress’s clear policy intent.)
The third group are the “administrative pragmatists,” who, like the supremacists, recognize the need for a large administrative state and judicial deference to agency interpretations of law; but, like the skeptics, pragmatists think that courts have an important role to play in ensuring that agencies live up to constitutional values of democratic accountability. At the same time, pragmatists differ from both supremacists and skeptics in advocating for searching judicial examination of agency policy decisions (under “hard look” review).
(Relatedly, Ben Heath has independently come up with a similar categorization of administrative law approaches:
Supremacy maps to Heath’s “Progressive Left / Statist Theories” category, skepticism to “Libertarian / Originalist Right,” and pragmatism to “Mainstream Administrative Law.” And the absence of the “Critical Left” from mainstream administrative thought is accurate.)
One of the most useful features of Pojanowski’s taxonomy is that for each one he identifies its jurisprudential assumptions. The supremacists and pragmatists take a legal realist view of legal interpretation, under which most complex issues of statutory interpretation are fundamentally indeterminate using traditional legal tools and thus resolvable only through an exercise of policy discretion. Since agencies are, for both reasons of expertise and democratic accountability, better situated than courts are to exercise this discretion, courts should defer to agency legal interpretations.
Skeptics, by contrast, tend to be formalists when it comes to statutory interpretation, believing there to be clear right (or at least best) answers, derivable using traditional legal tools. Because agencies are no better than courts in doing such interpretation, and because the Constitution vests the judicial power in courts (and, as Marshall pointed out in Marbury, “[i]t is emphatically the duty of the Judicial Department to say what the law is”), there’s no reason for courts to defer to agencies.
(2): “Neoclassical” administrative law
Beyond categorizing the scholars that have come before him, Pojanowski claims to have identified a new, emerging school of administrative-law thought: “neoclassicism.” Like the supremacists, neoclassicists recognize that the modern, expansive administrative state is here to stay. But like the skeptics, neoclassicists take a formalist view of statutory interpretation, viewing it as a fundamentally legal analysis that does not collapse into policy discretion. Thus, neoclassicists are skeptical of judicial deference to agency interpretations of law or their own regulations.
Pojanowski sometimes characterizes neoclassicism as most akin to pragmatism, in that it accepts the need for the modern administrative state while recognizing that the administrative poses serious threats to constitutional values and the rule of law. The main difference is that, while the pragmatist thinks the best way for courts to intervene is by scrutinizing administrative procedure and policymaking, the neoclassicist thinks that better judicial intervention comes from policing agency interpretations of law and that, when it comes to agency procedure, courts should generally limit themselves to enforcing the plain text of the Administrative Procedure Act.
But I’m skeptical that neoclassicism is closest to pragmatism. To me neoclassicism is basically just skepticism but with what Pojanowski calls “constitutional modesty”: an unwillingness to bring back the non-delegation doctrine and thereby make an avulsive constitutional break.
In its practical effects, neoclassicism is thus obviously very different than skepticism. But conceptually they rest on similar foundations, because what unites neoclassicism and skepticism on the one hand, and supremacy and pragmatism on the other hand, is the fundamental jurisprudential question about the nature of statutory interpretation—i.e., the legal realist vs. formalist question of whether “faith in the autonomy and determinacy of legal craft” (857) is warranted. Whether one is a believer or nonbeliever on this fundamental question is the most important issue. By making this jurisprudential debate salient, Pojanowski has done a lot to clarify the deeper structure of debates in administrative law.
(3): The normative justification for neoclassicism
Ultimately, though, it’s this debate that dooms Pojanowski’s projects of justifying neoclassicism as the best approach to administrative law (rather than simply as a coherent statement of certain moderate conservative views, which I agree it is). The reason is that, while the debate between the realists and formalists is still ongoing, the realists have a fundamentally more accurate explanation of how legal interpretation actually works, especially in the highly political domain of legislative activity.
Pojanowski doesn’t so much dispute this as tries to argue that the realist position is self-defeating, since Chevron, the main practical effect of realism about statutory interpretation, itself “rests on pre-legal realist assumptions . . . . To stipulate that a question can be clear or not presupposes a stable measure with which to judge clarity.” But realists have never denied that many, if not most, legal questions have clear-enough answers. The point is not that statutes are never clear—many are, most of the time—but rather that, in those cases that reach the appellate courts and where there is reasonable disagreement among good-faith interpreters, the legal materials are fundamentally indeterminate and only policy considerations can resolve the issue. And as long as this holds true, the future of administrative law theory will belong to the administrative supremacists and pragmatists.