This is the second piece Ius & Iustitium is presenting in its symposium on Adrian Vermeule’s new book Common Good Constitutionalism. A general introduction to the symposium may be found here. Conor Casey is a Lecturer in Law, University of Liverpool School of Law & Social Justice.
1. Common Good Constitutionalism and Bureaucracy
In a symposium hosted by Ius & Iustitium last year I noted that a core part of the intellectual project classical lawyers are engaged in has involved probing foundational questions about law and political authority: their purpose, justification, and how we should conceive of the proper relationship between the precepts of natural law and posited law. I went on to say that while these foundational questions remain of critical importance, if the revival of the classical tradition is to have any vibrancy or longevity, it must also probe how the basic precepts of the tradition are best made concrete under contemporary social, economic, and political conditions.
Professor Vermeule’s Common Good Constitutionalism is a work that masterfully tackles both tasks. The book has two main components. First comes the theoretical element—where Vermeule gives a rigorous but accessible articulation of the core precepts of the classical tradition: its emphasis on the common good as the lodestar of the constitutional order, the appropriate and rich relationship between lex and ius, and the inevitability of recourse to moral reasoning in hard cases.[1] The latter parts of the book take these precepts and use them as a matrix through which to examine several areas of United States public law, including the place of the administrative state.
Executive departments and independent agencies acting under broad grants of statutory authority, notes Vermeule, play a critical role in setting and implementing consequential policies for the general welfare. The apparatus of the administrative state is key to the successful adaptation and adjustment of broad positive instruments to changing social, economic, and technological circumstances.[2] For this reason the executive-led administrative state is, says Vermeule, in an important sense the living voice of a community’s law.[3]
Vermeule notes on several occasions that the classical legal tradition is emphatic that questions of institutional design within a polity are within the scope of reasonable determination—provided they are oriented toward the basic charge of upholding the common good. But Vermeule is also not shy in arguing that executive-centered government is particularly conducive to this task under the kinds of socio-economic conditions typical to modern complex societies. In a co-authored essay, Vermeule and I argued that the reason for prudentially preferring this mode of governance in similar systems was that:
unlike diffuse and procedurally cumbersome legislative assemblies, or low-capacity judicial bodies—hierarchical bureaucracies with very wide regulatory reach, when commanded by an energetic and motivated political executive, are better suited to promoting the integration of substantive and valuable moral precepts into legal ordinances.[4]
In other words, the political executive is the actor best placed to steer the potent capacity of contemporary administrative states—their welter of adjudicative, advisory, rulemaking, and investigative powers—toward valuable ends. Behind this proposition is the idea that the specialization and technocratic competence of contemporary bureaucracy can be regarded as a powerful but ultimately “intrinsically neutral institutional technology” that must inevitably be entrusted, explicitly or implicitly, with a mission of “substantive content.”[5] Impersonal bureaucracies are, on this account, a potent and useful institutional technology for political actors precisely as they can be ‘easily made to work for anybody who knows how to gain control over it’.[6]
What I want to do in this contribution is to dig deeper into this argument by offering a stylized picture of how political executives can act to promote the conditions constitutive of the common good through the kind of administrative state apparatus’ common to countless constitutional systems. I will speak at a high level of generality, and work with an ideal-type constitutional system in mind, with a basic tripartite separation of powers, a civil service with robust tenure protections for rank-and-file officials but whose upper tier is subject to executive§ appointment and removal, and several agencies designed to be statutorily independent in their regulatory tasks. I therefore write with awareness what I say may miss the particularities of a given constitutional order or other. But I will have achieved my purpose if I can encourage more of those interested in the ongoing revival of the classical tradition to grasp the juridical significance of the executive-led administrative state in contemporary constitutional systems, and the bewildering array of tools it has at its disposal that can be turned to worthy ends.
Classical lawyers must remain mindful that all “that has a positive value can be turned into a negative”[7] and accept the true burning question for those concerned about the relationship between the administrative state and the common good is what kind of moral vision—positive or negative—the former’s different components will be animated by. It is simply not a useful stance to wish bureaucracy was not the core means through which governance occurs or to bemoan that the current personnel of the administrative state in this or that country are generally not animated by a sound moral vision.
In anticipation of a situation where the political executive will be guided by a sound moral vision, classical lawyers should devote more attention to the diverse array of tools at its disposal it can use to inject that vision into the administrative state’s extensive regulatory outputs. These tools can be used to combat several risks of excessive bureaucratic autonomy, including mission myopia, ensnarement by old-fashioned or defunct socioeconomic paradigms, capture by vested private interests, resistance sparked by ideological disagreement, or general bureaucratic torpor. In offering this picture, I take inspiration from a brilliant – if not frustratingly short – account of how bureaucracy can be oriented to the common good offered by Vermeule himself in Bureaucracy and Mystery as well as Smith’s deft treatment of the untapped potential of executive orders for common good conservative ends.
2. Legal and Political Tools
Appointment and removal
There are good reasons why, in many countries, civil servants are appointed based on the premise that they are not mere tools of an incumbent political executive but have an overriding duty to serve the State. In contemporary constitutional systems, concepts like merit, technocratic competence, security of tenure, and insulation from partisan politics have all largely displaced political patronage and loyalty as the basic principles guiding bureaucracies. In many constitutional systems, legislatures and executives have increased the bureaucratic autonomy of some civil servants over administration and policymaking even further, by creating so-called ‘independent agencies’—administrative bodies designed to regulate socio-economic activity in a manner often insulated from direct political executive direction; think here Central Banks, Ombudsmen, and the like.
But this Weberian account of bureaucratic appointment frequently exists alongside the enduring politicization of senior bureaucratic appointments and removals. That is, a commitment to appointing or removing senior officials based on their sharing of, or sympathy toward, a particular normative worldview held by the executive. For the classical lawyer, appointment and removal powers—whether constitutional or statutory—can serve as an essential mechanism ensuring the upper echelons of the administrative firmament is staffed with personnel dedicated to aligning the work of their regulatory subject-matter to human flourishing and the common good. It might be helpful to make things more concrete by sketching some hypothetical scenarios of what political executive action on this front might look like.
Imagine a government broadly dedicated to common good conservatism has just assumed power. Near the top of legislative agenda is tackling child poverty and inequality by increasing borrowing, spending, aiming for full employment, and introducing a wealth tax on major corporations. The government is aware that experts in the State’s influential and statutorily independent Fiscal Advisory Council (all appointed during the prior neoliberal administration) are likely to publish a damning report on their proposed budget and recommend immediate course reversal. Anticipating this, the political executive uses its constitutionally granted removal powers to dismiss the current crop of experts and appoint an entirely new panel of ideologically sympathetic—but non-party member—Keynesian and Leonine economic experts.
Imagine that the same administration seeks to take robust steps to protect unborn life (by restricting abortion services) and implement a pro-family agenda of promoting marriage and easing financial burdens on current and would-be parents (through tax subsidies and enhanced child benefit payments and the like). The incumbent board of the State’s statutorily independent Human Rights Commission (appointed by a previous liberal government) take a diametrically different philosophical stance on the nature and content of human rights and issue a scathing public communique about the government’s agenda being “illiberal” and “dangerously backwards.” In response, the executive uses its legal powers to dismiss the board and appoint a new one with personnel drawn from the academy, NGOs, and a range of religious organizations, all of whom broadly work within a natural law grounded human rights framework respectful of the inviolability of life and centrality of the family. This new board issues a new raft of best practice guidelines and interpretive rules for how public bodies should understand their various human rights obligations when discharging their statutory tasks and how they can best respect them.
Each example involves, from the classical lawyer’s perspective, a valuable infusion of the institutional technology of the bureaucracy with a more compelling normative vision than what came before; and not allowing the orienting view of the relevant parts of the administrative state to be based on a harmful understanding of political economy or human rights.
Synoptic Mechanisms
Another way to marry technocratic features of governance with a sound moral vision is to create synoptic mechanisms that monitor the work of administrative actors, either by reviewing their agendas or preclearing their work before promulgation. For example, in the United States successive Presidents have mandated that significant regulations must be subject to centralized preclearance and feedback from the Office of Management Bureau and Office of Information and Regulatory Affairs based on qualitative criteria contained in executive orders. Executive Order No. 12,291—amended and expanded by several presidents—determined that tailored regulatory impact assessments would be applied to all major rules and regulations proposed by administrative bodies, a review infused with the ideological principles of presidential incumbents. For example, President Barack Obama added a requirement that proposed regulations be consistent with non-quantitative criteria such as equity, human dignity, and distributive impact. In contrast, Republican Presidents have used these mechanisms for aggressive deregulatory purposes. President Trump issued a supplementary executive order requiring administrative bodies to repeal two regulations for every newly proposed regulation, in addition to carrying out a cost-benefit analysis. President Trump’s order was repealed by President Biden in January 2021, who, in turn, issued a new order instructing the OMB to come up with recommendations about how to reform the regulatory process to better ensure proposed regulations “appropriately benefit and do not inappropriately burden disadvantaged, vulnerable, or marginalized communities.”
In Ireland, the Department of Taoiseach has relied on inherent executive power to spearhead use of regulatory impact analysis (RIA) across government departments and administrative bodies. RIA requires that before proposals for primary legislation or significant secondary regulations are brought to Cabinet, they must be assessed for whether it will meet its desired policy objectives, as well as possible side-effects and costs of pursuing it in the manner proposed. Currently, an RIA must assess the impact of a proposal across several policy dimensions determined by the Taoiseach of the day as of great significance. The current policy criteria include: Northern Ireland relations, employment, gender equality, the environment, persons at risk of social exclusion, people with disabilities, industry costs, national economic competitiveness, exchequer costs, and impact on rural communities. These objectives can be tailored and changed depending on the incumbents political commitments, offering the Taoiseach a useful coordinating mechanism through which they can better ensure issues of political-moral sensitivity and importance are factored into policymaking, across the entire span of the administrative state.
Note that some of these configurations of impact assessments go beyond the myopic quest for greater economic efficiency and deregulation beloved of neoliberal “conservatism” but also implicate thicker substantive values. A sufficiently motivated common good conservative administration could deploy similar mechanisms to embed concern for ends like religious liberty, economic justice, environmental stewardship, labour rights, protection of the marital family, promotion of stable family life and child-rearing, subsidiarity and localism, and vindication of human life and dignity at all stages of development, in the bureaucratic policymaking process at all stages; helping bed them down to become the default moral vision for officials.
Guardians of the Constitution
In cases involving questions of constitutional interpretation, the political executive is typically one of the relevant parties. Where a case implicating constitutional interpretation concerns two private parties, the political executive often has an entitlement to advance its views on the proper interpretation of the Constitution before the Court. In practice, the executive de facto delegates primary responsibility for formulating its position on constitutional interpretation to an appointed official—typically an Attorney General or Solicitor General (usually aided by a coterie of elite lawyers)—considered the authoritative voice of the executive branch in Court.
Here too the political executive can ensure this highly specialised part of government is oriented to the common good, by instructing or encouraging its legal officials to stake out positions on matters of constitutional interpretation that align posited lex with background principles of ius (where at all possible) to ensure constitutional text remains an ordinance of reason as it develops and unfolds in light of new challenges and circumstances.
The Irish case of Sinnott v Minister for Education[8] provides a useful example of the kinds of consequential choices the executive and its law officers make in this domain, and how they can be harmful or helpful to human flourishing. The case concerned the scope of Article 42.4 of the Irish Constitution, which provided that:
The State shall provide for free primary education and shall endeavour to supplement and give reasonable aid to private and corporate educational initiative, and, when the public good requires it, provide other educational facilities or institutions with due regard, however, for the rights of parents, especially in the matter of religious and moral formation.
Proceedings in Sinnott arose due to the State manifestly failing to provide basic educational services to children with special needs over many years. This failure eventually prompted litigation on behalf of the profoundly disabled plaintiff and raised the question of both the scope, and duration of, free primary education. The High Court found that the scope of primary education encompassed the provision of basic education that would enable persons like the plaintiff to make the “best possible use of his inherent and potential capacities, physical, mental and moral” regardless of his physical and mental ability. In terms of duration, the High Court found the obligation to provide primary education applied to children with special needs for as long as they continued to benefit from it and would otherwise regress without it. The Court found that to withdraw educational facilities from persons with special needs after the age of majority, would constitute an abdication of an express constitutional duty if it led to regression in their basic functioning.
The Attorney General, acting on instruction from the Government, appealed to the Supreme Court on the basis that the Constitution ought to be interpreted in a very different way to mean that, regardless of special needs or risk of regression, the constitutional obligation to provide primary education ceased once a child reached the age of majority. The Attorney General argued the lower court ought to have adopted a historical approach to what the framers in 1937 would, in fact, have understood to constitute primary education, and suggested that none would have considered the guarantee would apply to persons above the age of majority, still less that it would encompass the kind of specialized education required by children like the profoundly disabled plaintiff. In a highly controversial judgment, the Supreme Court basically agreed with the Government’s submissions.
What is important for the purposes of this post is the fact the executive deliberately chose to instruct the Attorney General to advance a historically focused interpretation in a highly under-determinate area of law, when it knew full well this interpretation would exclude many vulnerable persons from the constitutional entitlement to very basic educational provision. Indeed, this appeared to be the precise reason they advanced the interpretation. In this kind of case—and countless others—executives can equally choose to advance interpretations more infused with background principles of the natural law which cash out in concern for basic human dignity, equality, and solidarity with vulnerable persons and their families.
Carrots, Sticks, and Purse Strings
Finally, it cannot be overlooked that political executive’s position as lead policymaker in both presidential and parliamentary systems typically encompasses a central role over preparation of the annual budget. This close control over budgetary powers gives political executives a very potent tool to shape the policy direction of administrative bodies and the way in which they discharge their mandate. Political executive control over agencies’ financial resources can undoubtedly create an incentive for the latter to adapt and alter their regulatory outputs under the implied or explicit threat of budget reductions. Agencies who adopt policy positions inimical to the common good can be reined in through the carrot and stick of potential budget adjustments.
The extensive budgetary powers enjoyed by government can also be exercised to ensure suitable conditions are attached to receipt of public funds. This could involve refusing to out-source or contract government work with firms who adopt dubious labour practices or have a record of bad public stances on moral questions, making grant funding to charities or NGO’s conditional on their work and mission statements being genuinely consistent with human dignity and the common good, ensuring subsidisation of artistic and culture projects is done with due regard for beauty, truth, and desire to avoid the prurient and pointless, and making economic support for universities and colleges conditional on deep respect for things like religious exercise and the rigorous academic pursuit of truth.
3. Conclusion
One sometimes sees a crude Schmittian approach to executive-bureaucratic relations attributed to post-liberal thinkers; a picture where a charismatic leader treats the bureaucracy in a free-wheeling manner, channelling the ‘popular will’ and using the administrative state as a cudgel to give effect to it, all the while being disdainful of claims to technocratic competence, expertise, and the rule of law. Simply put, it is an account that valorises the triumph of sheer will over the claims of reason.
Vermeule’s book is a masterclass demonstration in how nothing could be further from the truth for the classical lawyer, who maintains all mechanisms expressive of governmental will must be oriented to reason to be legitimate, putting the tradition completely at odds with a politics motivated by majoritarian head-counting or swayed by passing moral trends and the whims of passion. Reason involves adhering to the precepts of the natural law—the rule and measure of government—and pursuing the complex demands of the common good and human flourishing which constitute the purpose and point of political authority.
To bring this union of will and reason about in a deeply complex society requires rulers to take full advantage of expertise and technocratic competence where relevant but concurrent with the energetic use of legal tools—like those I have outlined above—to align the administrative state’s institutional stock of know-how behind moral policies aimed at peace, justice, and abundance, with due regard for principles of subsidiarity and solidarity.
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Adrian Vermeule, Common Good Constitutionalism (Polity 2022). ↑
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Id., 137. ↑
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Id., 138. ↑
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Conor Casey and Adrian Vermeule, “Myths of Common Good Constitutionalism” 45 Harvard Journal of Law & Public Policy (2022) 103, 135. ↑
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Adrian Vermeule, Bureaucracy and Mystery, MIRROR OF JUST. (Mar. 22, 2019), https://mirrorofjustice.blogs.com/mirrorofjustice/2019/03/bureaucracy-and-mystery-.html. ↑
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Max Weber, Essays in Sociology: Bureaucracy in (ed) Mortimer Adler, Great Books of the Western World Volume 58 (Encyclopaedia Britannica, 1990) 162. ↑
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Jean Daniélou, S.J., Prayer as a Political Problem (Cluny Media, 2020) 108. ↑
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[2001] 2 IR 545. ↑