The Moral Turn in Administrative Law

A Recent Trend in Administrative Law Theory

The New Digest is delighted to feature this guest essay by Professor Jodi L. Short. Professor Short is the Mary Kay Kane Professor of Law at UC Law, San Francisco. 

My new article, The Moral Turn in Administrative Law, observes and analyzes a burgeoning trend in U.S. administrative law scholarship and jurisprudence that foregrounds the moral dimensions of administrative decision making—a trend that is particularly striking in a field notorious for its tendencies toward proceduralism, institutionalism and technocracy. Perhaps this observation will surprise no one in this forum, whose contributors are on the leading edge of the moral turn and are quite explicit about their project. My article’s main contribution is to identify others engaged in a similar project—even if they do not quite know it yet or have not overtly embraced it as their own—and to set the terms for a broader dialogue across disparate theories of moral administration. 

To identify a contemporary moral turn in administrative law is not to suggest a clean break with a past devoid of moral content. Broadly speaking, the project of administration has always been a moral one. But the moral turn I identify is different, with potentially wide-ranging implications. First, it entails a distinctive approach to legal reasoning that is expressly informed by public values. It is unabashedly substantivist, meaning that it seeks to embed some explicitly articulated, substantive moral lens into the practice of administering law. This raises difficult questions about the relationship between moral administration and the concept of legality. Second, it envisions administration as a site for cultivating a sense of shared collective understanding. This raises normative questions about the desirability of such a project as well as empirical questions about its feasibility. 

I describe six bodies of scholarship that comprise—self-consciously or not—a common project to develop a theory of moral administration. The first is common good constitutionalism, particularly as extended by Adrian Vermeule to administrative law and the practice of executive administration, explaining that “by acting through reasoned law, our executive-centered order can be ordered to the common good.” The second is built around the value of public care, theorized by Blake Emerson as a legal duty governing the conduct of administrative officials implementing statutory law. The third is vulnerability theory and its contention that the administrative state has a responsibility to support individual and social resilience in the face of the inevitable reality of bodily vulnerability and dependency. The fourth category encompasses anti-domination theories arising out of various fields, including law and political economy, critical race theory, and social justice. These theories articulate a thick conception of political equality as a fundamental value guiding administration. What is noteworthy about some recent scholarship in these domains is that it articulates anti-domination principles in explicitly moral terms rather than exclusively in terms of power. Fifth, I suggest that scholarship on the law of networks, platforms and utilities (NPU law) is, at least in part, a moral project grounded in the late nineteenth and early twentieth century law of public utilities, which infused a core set of substantive public interest value commitments into the regulation of industries providing essential services. Finally, I point to a stream of scholarship that approaches questions of morality in administration and administrative law from the perspective of virtue ethics, theorizing the values and characteristics of individual officials that promote quality public service. 

These theories of moral administration arise in different scholarly fields, they are motivated by different ideological priors, and they propose different defining moral values, but they converge in at least four important respects. First, they all envision a robust role for the state in realizing moral aims. They are all corrections to the neoliberal minimalist state. Second, and relatedly, they share a concern with private coercion and concentrations of private power. As Vermeule puts it, “[t]he state, narrowly understood as the official organs of government, is hardly the only source of abuses. Actors empowered directly or indirectly by law—including the property entitlements of corporate law and common law—may abuse their power throughout the society and economy.” Third, theories of moral administration articulate collective conceptions of the good, in contrast to economic approaches to welfare maximization that aggregate atomistic individual interests. Fourth, while these theories differ in their substantive particulars, they all embrace the high-level construct of human flourishing as a moral lodestar.  

Despite important points of convergence, these theories diverge in fundamental areas. First, theories of moral administration disagree on the source of the guiding moral principles they espouse and the relationship between those principles and positive law. Vermeule and Emerson represent opposite ends of a spectrum, with Vermeule emphatic that the common good exists independent of positive law and Emerson grounding the duty of public care squarely in positive statutory and constitutional law. Few others have attempted to address vexing questions about the relationship between moral administration and concepts of legality.  

Second, theories of moral administration diverge in their acceptance of hierarchy and their bottom-line commitment to democracy. At the core of progressive theories of moral administration is a strenuous rejection of hierarchy and a reimagining of administrative institutions as the locus of robust and equitable democratic deliberation. This stands in stark contrast to some common good constitutionalists’ acceptance of hierarchy and willingness to entertain the possibility of moral administration within non-democratic regime-types. While I find this stance terrifying and contrary to my personal moral sensibilities, I believe that it provokes important conversations about democracy as a shared assumption and about its role in administration—beginning with the question of whether democracy as we know it is up to the task of delivering the substantive values that moral theories center.  I worry that progressive theories of moral administration have not sufficiently grappled with the lures and dangers of administrative authority and the limitations, as well as the promise, of democratic administration. 

Third, while theories of moral administration agree at a high level of generality that the aim of government is human flourishing, they differ substantially in the particulars and in the level of specificity at which they articulate those particulars. Finally, the various theories differ on the role of courts in moral administration: some resist a role for courts, others envision highly deferential judicial review, and others see judicial review as an opportunity to nudge agencies toward greater attention to moral considerations. Dialogue across these divides can further develop theories of moral administration.  

In the end, I contend that a viable theory of moral administration must go further in giving an account of itself—one that can be contested and vetted against other understandings of the good. I propose several considerations that should inform how we assess these accounts. First, the theory should convey the potential dangers presented by its state-sponsored morality project and explain how it addresses those dangers. Second, I would want to know how the theory situates itself in relation to liberalism. While some discussed above explicitly identify as “post-liberal,” most have not joined this conversation. It would be useful to more explicitly classify theories as post-liberal, as efforts to reinvigorate a moral vision of liberalism, or as something else entirely. Third, theories of moral administration should more clearly articulate the relationship between morality and power. On the one hand, a focus on moral discourse and reasoning risks masking power relations or demobilizing the collective political action necessary to achieve ambitious social goals in practice; on the other hand, moral discourse could be a vehicle for mobilizing political action. Fourth, theories of moral administration need to address problems of moral conflict, which they may exacerbate: how will administrators resolve conflicts among incommensurable moral positions in a value-laden policymaking process? Fifth, legal theories of moral administration would benefit from deeper engagement with literature in the social sciences and humanities on how institutions and social relations construct individuals as certain types of moral subjects. How do these theories of administration contribute to—and potentially alter—the self-formation of governmental subjects? Sixth, a theory of moral administration should have the capacity to inspire political imagination even as it is grounded in the practical realities of governing. Finally, if theories of moral administration aspire to complement, compete with, or displace other theories of administration, they must explain how they would produce different outcomes on legal or policy questions and elaborate what they can add to debates on foundational administrative law concerns such as legitimacy, rationality, and reason-giving. 

Notably, the academic conversation about moral administration is building as the U.S. Supreme Court systematically dismantles the existing foundations of administrative law, and as the Court tentatively pilots a moral case for its anti-administrativist project. In recent cases challenging the Department of Education’s student debt relief program, Justices pressed the Solicitor General at oral argument on the fairness of forgiving debt for some individuals and not for others. Chief Justice Roberts spun this parable expressing his moral qualms: 

You know, you have two situations, both two kids come out of high school, they can't afford college, one takes a loan, and the other says, well, I'm going to, you know, try my hand at setting up a lawn care service, and he takes out a bank loan for that. At the end of four years, we know statistically that the person with the college degree is going to do significantly financially better over the course of life than the person without. And then along comes the government and tells that person: You don’t have to pay your loan. Nobody’s telling the person who is trying to set up the lawn service business that he doesn’t have to pay his loan. He still does, even though his tax dollars are going to support the forgiveness of the loan for the – the college graduate, who’s now going to make a lot more than him over the course of his lifetime.  

Seminal decisions from last term undoing foundational administrative law doctrines and sharply curtailing agency powers bristle with moral outrage at administrative agencies. In their concurring opinion in Securities and Exchange Commission v. Jarkesy, Justices Gorsuch and Thomas excoriate the SEC for usurping the jury trial rights of enforcement targets. In Loper Bright v. Raimondo, which overturned Chevron’s command that courts to defer to reasonable agency statutory interpretations, Justice Gorsuch’s concurrence observes that the interpretive flip-flopping Chevron deference encouraged imposes disproportionate harms on the most vulnerable citizens. Justice Gorsuch elaborates these arguments in his new book, Over Ruled: The Human Toll of So Much Law, through stories about the morally virtuous struggles of “real people” to “make their way in a world awash with law.” 

Theories of moral administration have the potential to make important contributions to theoretical and doctrinal debates emerging in the newly unsettled landscape of U.S. administrative law. My article clears the brush to help find a path forward.