Our Schmittian Administrative Law

Abstract

TABLE OF CONTENTS I. CARL SCHMITT VERSUS THE RULE OF LAW 1098 A. Schmitt's Account of Emergencies 1098 B. The Rule of (Administrative) 1101 C. Two Claims 1103 1. Schmittian Administrative 1103 2. Schmittianism As a Matter of Degree 1105 3. Emergencies and Exemptions 1105 4. Standards Versus Grey Holes 1106 II. THE BLACK AND GREY HOLES OF ADMINISTRATIVE LAW 1106 A. Black Holes 1107 1. The Definition of 1107 2. What Is Action? 1109 3. Exception(s) for Military or Foreign Affairs Functions 1112 4. Committed to Agency Discretion by Law 1113 5. Other Statutes, Nonstatutory Review, and Constitution 1115 B. Grey Holes 1118 1. Review 1119 2. Substantial Evidence Review and Rule of Prejudicial Error 1121 3. The Good Cause Exception 1122 4. Statutory Interpretation: Chevron and Chevron Avoidance 1125 (a) Chevron: Issues and Applications 1125 (b) Chevron Avoidance 1127 (c) Chevron and Constitutional Questions 1130 (d) Interpretation As an Adjustable Parameter 1131 III. WHY SCHMITTIAN ADMINISTRATIVE LAW IS INEVITABLE 1131 A. The Inevitability of Black and Grey Holes 1132 B. Of Legislators and Aspirations 1137 C. The Convergence of Ordinary and Extraordinary 1139 D. Statutory Authorization and Emergency Powers 1140 IV. EXTENSIONS AND SPECULATIONS 1142 A. Emergencies and New Legal Realism 1143 B. Soft Look Review: Emergencies and Ossification 1144 C. Reverse Vermont Yankee? The Supreme Court and Lower Courts 1146 CONCLUSION 1149 How do Administrative Procedure Act (1) (APA) and larger body of administrative law respond to real or perceived emergencies? I suggest that our administrative law contains, built right into its structure, a series of legal and holes. (2) Legal black holes arise when statutes or legal rules either explicitly exempt[] executive from requirements of rule of law or explicitly exclude[] judicial review of executive action. (3) Grey which are disguised black holes, (4) arise when there are some legal constraints on executive action--it is not lawless void--but constraints are so insubstantial that they pretty well permit government to do as it pleases. (5) Grey holes thus present the facade or form of rule of law rather than any substantive protections. (6) David Dyzenhaus and other theorists of rule of law show that black holes and grey holes are best understood by drawing upon thought of Carl Schmitt, in particular his account of relationship between legality and emergencies. If this is so, and in this sense, my claim is that administrative law of emergencies just is Schmittian. (7) Moreover, existence of these black and grey holes is inevitable. …