From the Executive to Administration

In an article entitled "Our Schmittian Administrative Law," recently posted on SSRN and forthcoming in HLR, Adrian Vermeule makes an extremely intriguing argument about the inevitability of so-called "black" and "grey holes" in administrative law. Whereas a black hole entails the complete exclusion of certain kinds of administrative action from the application of the Administrative Procedure Act, grey holes allow for retention of the facade of the rule of law while simultaneously permitting agencies great latitude in exercising discretion. Although these black and grey holes are of particular relevance in times of emergency, Vermeule contends that emergency situations persist on a continuum with normal times, and that grey holes, in particular, permit the judiciary to employ a sliding scale of standards of review depending on the surrounding circumstances. While Vermeule's deployment of the work of Carl Schmitt in service of explaining certain features of administrative law is quite insightful, there are a few questions that his piece leaves un- or under-answered.

Much of the work of Schmitt himself is fairly insistent on emphasizing the singularity of the sovereign; when Schmitt writes in Political Theology that "Sovereign is he who decides on the [state of] exception" ("Souveran ist, wer uber den Ausnahmezustand entscheidet"), the sovereign is, crucially, an individual. Translating the singular executive of Schmitt into the collectivity of the administrative state is a significant alteration. The individualization of the sovereign in Schmitt corresponds to the exceptional quality of his decision, by contrast with the paradigmatic kind of action in which an administrative agency engages--that of promulgating rules. Here Vermeule could find some of the development of Schmitt's conceptions in the context of continental philosophy and literary theory instructive. For the past ten years, since the English translation of Italian philosopher Giorgio Agamben's book Homo Sacer: Sovereign Power and Bare Life--a work that emerges out of the intersection of Schmitt and Michel Foucault--appeared, scholars of English and Comparative Literature have been engaged in research on both sovereignty and emergency situations (see, e.g., the Cornell conference on "Taking Exception with the Exception," and Julia Lupton's Political Theology blog). In Agamben's hands, Schmitt's assertions about sovereignty become converted--via Foucault's conceptions of discipline and governmentality--into general claims about the modern state's sovereign power over life and death, exemplified by the figure of the camp. This form of the Schmittian paradigm could perhaps illuminate the administrative version of the exception better than Schmitt's own work.

In addition, Vermeule notes early on that he will be focusing upon "emergencies implicating national security, rather than on economic emergencies or emergencies arising from natural disaster." At the same time, however, he adduces some examples pertaining to environmental rule making. As I have discussed in "Economic Emergency and the Rule of Law," there may be some reasons to distinguish among varieties of emergency; in particular, the invocation of a natural--and putatively uncontrollable--emergency may lead courts reviewing action taken during the emergency to adopt a more permissive viewpoint than they might otherwise be inclined to do. Furthermore, the inclusion of environmental examples suggests a potential application for Vermeule's theory beyond its current incarnation. To the extent that the Environmental Protection Agency is willing to consider climate change an imminent natural emergency, could it promulgate rules to deal with this situation based on lesser fact finding than usual and in the absence of conventional notice and comment procedure? Considering the extension of Vermeule's thesis to this and other situations outside the national security context might well be revealing.