by Scott Soames
His example is the FTC.
The Commission promulgates substantive rules of conduct. The Commission then considers whether to authorize investigations into whether the Commission’s rules have been violated. If the Commission authorizes an investigation, the investigation is conducted by the Commission, which reports its findings to the Commission. If the Commission thinks that the Commission’s findings warrant an enforcement action, the Commission issues a complaint. The Commission’s complaint that a Commission rule has been violated is then prosecuted by the Commission and adjudicated by the Commission. The Commission’s adjudication can either take place before the full Commission or before a semi-autonomous administrative law judge [employed by the Commission]. If the Commission chooses to adjudicate before an administrative law judge rather than before the Commission and the decision is adverse to the Commission, the Commission can appeal to the Commission.23
In these agencies, a single body legislates, investigates, charges, and prosecutes accused violators. It also adjudicates, often convicting and passing sentence without giving the accused his or her constitutional rights to a trial by an independent judge or jury, to immunity from self-incrimination, or to challenge the constitutionality of the administrative process. Only after conviction and often payment of a fine is the accused allowed to challenge in federal court.
As Philip Hamburger of Columbia Law School shows in Is Administrative Law Unlawful?, today’s administrative law is a greatly expanded version of earlier undemocratic rule, arising from the British Crown’s attempt to escape limitations on royal power arising from the Magna Carta in 1215 and the Petition of Right in 1628.24 The framers of the U.S. Constitution were aware of the Crown’s use of the Star Chamber and High Commission to achieve results outside the legal structure of Parliament and common law. Wishing to avoid this end-run around the law, the framers separated legislative, judicial, and executive power. As Hamburger explains, the rise of the administrative state is a return to what they took to be an evil they were determined to avoid.
The Fourth Amendment to the U.S. Constitution was one means of doing so. It outlawed general warrants allowing search and seizure without convincing an independent judge there was probable cause for thinking an individual had committed a crime.
The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no Warrants shall issue, but on probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
General warrants were ruled unconstitutional in England in 1763. But the Crown continued to use certain versions of them, called writs of assistance, in some settings. In 1761 this type of general warrant became an issue in the Superior Court of Massachusetts. An American lawyer, James Otis, challenged the writs, likening them to the Crown’s use of special prerogative warrants that bypassed Parliament and common-law courts. Otis argued that the law in colonial Massachusetts had long required writs that could be granted only “on oath and probable suspicion.” He concluded, “It is the business of this court to demolish this monster of oppression, and tear into rags this remnant of Star Chamber tyranny.”25 Though Otis didn’t win in court, he won in the press, helping fuel the drive for independence and the elimination of search and seizure without a judicial finding of probable cause. Hamburger argues that when administrative agencies today compel people to disclose all personal or business material relevant to agency investigations, they are eviscerating the Fourth Amendment, while reviving an ancient system of government outside the law that was known and rejected at the American founding.
The Fifth Amendment is also threatened.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on presentment or indictment of a Grand Jury … nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.
By the late eighteenth century, due process of law was a legal term of art deriving ultimately from clause 39 of the Magna Carta:
No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.
The Seventh Amendment to the U.S. Constitution extends the right to trial by jury to civil cases and protects facts in a civil case from being reversed by another court. Nevertheless, today federal agencies make rules, conduct investigations into possible violations, demand private records without a warrant, compel one to testify against oneself, and impose fines, wielding executive, legislative, and judicial power, without constitutional limitations.
This state of affairs is largely due to questionable congressional delegations of power. Does the Constitution give Congress the legal authority to so delegate? Hamburger and Lawson say no. The Constitution separates legislative, executive, and judicial power into different branches of government, ensuring that no institution combines them. Since Congress doesn’t have executive or judicial power, it can’t delegate them. Its legislative powers are enumerated in the Constitution, along with those that are necessary and proper for executing those powers. Since there is no delegation clause in the Constitution, the power to delegate its legislative power is not an enumerated power.
Is it an implied power that is necessary and proper for the execution of its enumerated powers? It is, only if Congress couldn’t produce the legislation it is empowered to enact without further delegating some of its power to other agencies. An argument can be made that administrative expertise is sometimes needed to achieve wise, or even only moderately tolerable, results. The question then becomes, Could these results be gotten in another way—e.g., by asking agencies for a range of possible rules and advice on how to evaluate them? The burden of proof to show this wouldn’t work is on proponents of the administrative state.
In addition to being necessary, implied powers must also be proper. Is it proper for Congress to sub-delegate part of its legislative power? Hamburger thinks not. The argument begins with Section 1 of Article I: “All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a House of Representatives and a Senate.” Can an agent, Congress, which has been vested with powers by others, then sub-delegate some of those powers to others? For Hamburger and a growing number of legal theorists, the entire Constitution is a delegation of specific powers from those in whom the powers originate—we the people—to specific branches of the government, which are our agents. We authorize them to manage specific portions of our business.26
Next we ask, How were legal instruments authorizing some to have the power to act on behalf of others understood in the late eighteenth century? According to Lawson, guardians, executors, and others acting under power of attorney functioned as fiduciaries authorized by agency instruments. Hamburger and others maintain that the Constitution is a grand agency instrument. The American founding father James Iredell, who was first a member of the North Carolina convention ratifying the Constitution and later a justice of the Supreme Court of the United States, called the Constitution “a great power of attorney.”27
A recent book by that title develops the argument in more detail.28 It finds a rich set of legal rules for interpreting agency instruments in Britain and the colonial United States. According to these rules, agents exercising delegated powers generally could not sub-delegate without an explicit authorization in the agency instrument itself. Robert Natelson puts it this way:
When not authorized in the instrument creating the relationship, fiduciary duties were nondelegable. The applicable rule was delegatus non potest d
elegare—the delegate cannot delegate. As Mathew Bacon phrased it in his A New Abridgment of the Law, “One who has an Authority to do an Act for another, must execute it himself, and cannot transfer it to another, for this being a Trust and Confidence reposed in the Party, cannot be assigned to a Stranger.”29
If the U.S. Constitution was understood to be an agency instrument, it would have been assumed that powers delegated to one institution of government cannot be sub-delegated to another institution.
Hamburger makes a similar argument, tracing the prohibition of legislative sub-delegation from Locke through Whig and Tory history, into pre-constitutional America.
If the principal selects his agent for her knowledge, skill, trustworthiness, or other personal qualities, he presumably gave the power to her, not anyone else. Of course, a principal could expressly authorize subdelegation, but he could not otherwise be understood to have intended this.… On such reasoning the principle of delegation bars any subdelegation of legislative power. In the Constitution, the people delegate legislative powers to Congress. The people, moreover, specify that they grant the legislative powers to a Congress, “consisting of a Senate and House of Representatives,” with members chosen in specified ways. The delegation to Congress thus is to a body chosen for its institutional qualities, including members chosen by their constituents for their personal qualities. Congress and its members therefore cannot sub delegate their power.30
Given all this, one does well to note the many clauses in the Constitution dealing with the selection, structure, and operation of Congress. As Lawson remarks, “No agency instrument would contain such detailed selection procedures and then implicitly allow an end-run around them.”31 In short, it would have been clear in 1788 that Congress can’t sub-delegate its legislative authority to others.
What should we think about this today? When Congress passes a law, it is unrealistic to suppose that every concept employed in it can be rigorously defined there. Nor is every detail for implementing the law spelled out. Some of these tasks must be left for administrative departments or agencies. How, then, are we to distinguish between true legislative content and the practical details of implementation? The answer must, it seems, come by extending the distinction between interpretation and rectification, needed by any plausible theory of the interpretation of legal texts.32
Consider a judge applying a statute to facts of a case. The first task is to determine what the lawmakers said or stipulated in adopting the statute. This is interpretation proper. As we have seen, sometimes, but not always, that is the end of the story. More must be done when the asserted content is vague in a way that fails to decide between relevant alternatives. The same is true if it conflicts with other assertions, or if it transparently doesn’t advance the communicative purposes at hand. When analogs of such vagueness, inconsistency, or evident impracticality occur in a court case, the judges or justices must sometimes rectify the law the legislators enacted in adopting the legal text. Their legal duty in doing so is not to strike out on their own, but to make the minimal change in the law’s content that maximizes fulfillment of the lawmakers’ rationale (legislative purpose) in passing it.
Being prescribed in judicial review, this process can be expanded to implementation by administrative agencies. When an administrative agency is tasked with implementing an act of Congress, it should articulate both the asserted content of the law and the intended purpose of Congress in making that assertion. Confronted with different means of implementation, the agency should select, from those that are fully consistent with the asserted content of the law, the one that best satisfies Congress’s intended purpose, to the extent to which those can be discerned with reasonable specificity. When they can’t be so discerned, the agency should take no action on the matter without further clarifying legislation. When relevant asserted content and intended purpose are sufficiently specific, deviations from them are authorized only when no system of implementation consistent with asserted content minimally satisfies that purpose. In such cases the system of implementation that deviates least from asserted content while maximally satisfying intended purpose should be adopted. The agency should then be required to submit its results to Congress for final approval.
Finally, this new conception of agency-Congress interaction must be subject to judicial review, without the now customary extreme deference to the agencies. This will require existing doctrines of judicial deference to the presumed legality of agency rules and the agency’s factual record of enforcement to be revised. For the court to accept the agency’s factual record is, in effect, to deprive the individual or institution targeted by the agency to a trial by jury, because in such trials a jury is the judge of fact. While in a normal trial the judge is the arbiter of legal questions, in appeals of administrative penalties federal courts typically treat earlier actions of an agency as if they were the actions of a lower court. Federal district courts can, of course, rule that the agency acted improperly, but in practice they typically defer to its legal interpretations. Even when an appeal is successful, the federal court often merely sends the case back to the agency for reconsideration. None of this conforms to the Constitution.
This abandonment of the Constitution raises a troubling question. Has administrative power become so central to modern government that there is no practical way of doing without it? Hamburger thinks not. He reports that outside of the Social Security Administration, agencies employ only 257 special administrative law judges. These could, in principle, be replaced by new federal district judges, independent of the agencies. What about administrative rule making? Since the agencies fall under the executive branch, the president could order them to send major rules that impose binding legal obligations on citizens to Congress for approval, thereby injecting political accountability into the process. Other agency rules, merely defining benefit levels for programs and implementing the delivery of benefits, could be left with the agencies.
These actions could bring the administrative state more in line with the Constitution, to which earlier philosophers—e.g., Locke, Hume, and Witherspoon—indirectly contributed by insisting on strict separation of powers, political accountability of major policy makers, and enforcement of natural rights (see chapter 4). Today the challenge is for philosophers, historians, legal theorists, and social scientists to spotlight the issue and articulate alternatives to current practices, thereby shaping the future of free societies.
CHAPTER 13
THE OBJECTIVITY OF MORALITY
The challenge to autonomous (nonreligious) ethics inherited from Hume and Kant; deriving moral and nonmoral ought from factual is; the empirical search for factual, morally relevant premises; the social and psychobiological content of the moral sense in human nature; the biological basis of social affiliation; the limits of the moral sense versus its historically expanding reach; the role of socioeconomic institutions in expanding our biologically based morality.
THE CHALLENGE
For much of the twentieth century moral philosophy remained in the shadow of David Hume and Immanuel Kant. Although Hume argued that the source of morality is a sentiment of benevolence toward others embedded in our common human nature, he also announced an unbridgeable chasm between fact and value, famously expressed in the slogan that one cannot derive ought from is. Kant agreed that morality is rooted in human nature, but denied it sprang from desire, sentiment, or any human passion. Since the demands of morality are unconditional, he reasoned, moral imperatives must be categorical, rather than hypothetical. When one says to a student “You ought to study,” one presumes that the student has an interest in learning, or at least in passing the course. Because of this, the prudential ought has the force of a hypothetical imperative—if you want to learn, or pass the course, you ought to study. By contrast, the moral ought—You ought never lie—is, Kant thought, never conditioned on any contingent desire or aim of the agent. Since all our aims—including our desire to continue to live—seem, in principle, to be
renounceable, it might appear that no moral obligation—You ought to do X—can be grounded in any desire or aim of ours. In short, no such ought can be derived from any such is.
That wasn’t the end of Kant’s story. Agreeing that human nature is the source of morality, he took the crucial element to be our rationality, which, he thought, directs us to act only on rules we can rationally will to be universally followed. Noting that universal lying and promise-breaking would destroy the trust that makes them possible, he rightly concluded that one cannot rationally will them to be universally performed. However, he wrongly concluded that this showed it to be irrational to lie or break a promise. It didn’t; moreover, sometimes it’s not wrong to lie. Even when it is wrong, there need be nothing irrational about it. One cannot prove that one ought not lie, or break a promise, by deriving that conclusion from the premise that the agent is rational.
These results challenge the integrity of moral inquiry. If one cannot establish claims about what we ought to do by deriving them from claims about any aspects—rational or nonrational—of human nature, then it is tempting to conclude that there is no moral knowledge, and perhaps no objective moral facts. That was the burden under which much of the moral philosophy of the twentieth century labored, and from which it has only recently begun to extricate itself.
DERIVING NONMORAL OUGHT FROM FACTUAL IS
The first step in doing so is to look more closely at the slogan “One cannot derive ought from is.” Although it is standardly taken to mean that no evaluative conclusion is a logical consequence of a factual conclusion, that can’t be right. In formal logic, whether or not one sentence is a logical consequence of another never depends on the specific meanings, or interpretations, of any nonlogical words—words other than ‘all’, ‘some’, ‘and’, ‘or’, ‘not’, ‘if, then’, and ‘=’. Thus ‘Mary ought to study ’ fails to be a logical consequence of ‘Mary promised to study’ for the same trivial reason that ‘The ball is red’ fails to be a logical consequence of ‘The ball is crimson’ and that ‘John won’t win’ fails to be a logical consequence of ‘John doesn’t realize that he won’t win’. In each case, the inference is, arguably, valid, even though it doesn’t count as logical because it depends on the interpretation of nonlogical words in the premise or the conclusion.