To those asserting that administrative agencies should simply do what they are told and no more, you have missed the point completely. The issue at play is How they are to do what they are told to do. Background morality must come in to make such determinations. Just as background morality must come into play in determining all written law. This doesn't mean that agencies can do whatever they think is good, just as judges cannot replace the written law for their own assertions about morality. But it does mean that at the point of application, background principles are Required to make a rational determination.
If an agency is tasked with making requirements for nutrition labels on food, the scope of the task is pretty well defined. If they are tasked with ensuring our food is wholesome and fit for consumption, the scope is much broader. While both tasks limit the scope of the agency to their area of competency, the generality of the tasks set before it are very different. Morality is required in considerations of such tasks, and the broader the task, the more background principles are needed. No amount of procedural investigation can reveal what is meant by "wholesome" food. It's a value-laden moral principle.
I would also ask that those opposed to agencies at the federal level consider state or local governing bodies instead. Are you against power being delegated to agencies at the federal level, or at all levels ever, and even in principle? If the latter, I wonder how you think governments are supposed to function. Why should our lawmakers not be able to delegate certain responsibilities to the experts in their domains?
The notion that administrative scholars, administrative lawyers, administrative law judges, administrative rule writers, and agency administrators are, for even a moment, considering the moral framework of their “governing” is abhorrent. Perhaps you should simply do what the elected representatives of the people tell you to do.
I know this is hard for you to hear as you seek to shape what you choose to call the “post-liberal” world order (but strangely cannot define). It is still the case that our existing constitutional order, as written and interpreted, is the master of our law making. The power to legislate continues to reside in our elected representatives, who are bound as representatives to consider and apply a moral framework supplied to them by the unwashed flabby black-hearted people (among whom I count myself, especially the flabby part.) Figuring out that moral framework is their domain, not yours or your law school’s.
Sounds like you want to govern. Servants don’t govern. They are given their orders and use their intelligence to carry them out efficiently and effectively. I know you want more - but you should govern only yourself and learn to accept your place, or, enter the arena of politics and take your ideas for change to your masters for their consideration.
I find your response curiously paradoxical in that you use moral language (abhorrent) to protest against the use of moral language. The inevitability of moral language in law seems to be the issue that the precis is trying to raise
Let me solve the paradox: I am not writing a rule or an administrative law decision but a response to a, frankly, vague article you say is about the inevitability of moral language in law. It seems to me the writer is trying to justify moral reasoning in an arena that should take the law being administered as if there is no open moral question. I fully understand this is impossible as a practical matter. I am with one of the other commenters here who said - don't give administrative law people any ideas. The administrative state (aka the blob in the swamp) has been given airs by our representative politicians through the delegation of their authority. I bless the Supreme Court effort to keep the administrative state in its constitutional lane.
I am aware that there is a vacuum in the space between what a politician understands in passing a law and the grounded reality of agency administration. That is down to us unwashed flabby black-hearted voters failing to demand an education system that teaches the constitution properly (ie, what it says, not oppressed/oppressor theology) to new unwashed flabby black-hearted voters. I also understand that the voters (like the heart) want what the voters want. How to get them to want less impossible things is a different question. The proper role of those employed in the administrative state (including law professors) is to exercise humility.
I am not suggesting, nor does the article, progressive judicial judgment. I stand entirely with you against ‘liberationist’ judicial interventionalism. It seems to me that judicial restraint is a good of a judge or a refulator. It is a good, a moral category. Perhaps we just differ over whether the ‘vacuum’ is morally neutral and not a ‘space’ fraught with morality to greater or lesser degrees.
It is my understanding that the article does not answer questions but tries to show that the questions are there. It is, after all, a précis of a reviewed article that I have not read.
I admit that I find positivistic accounts of law as sole expressions of a constitutionally-driven social contract profoundly problematic and dangerous morally. But please don’t mistake me for a progressive. I just don’t occupy its textualist inversion
Haha - so I just followed you back - but when I had quickly read this comment yesterday I unconsciously dismissed what you had written because you wrote the word “refulator”. I looked at what you wrote again today more carefully after you followed me and I realized you meant “regulator”! When I had rejiggered by response frame I then read your comment more carefully and realized that was just a honest typo.
So I thought about what you wrote and - ok, that’s fine, I guess you don’t like “positivist” accounts of law. I would agree with that - I don’t find the U.S. Constitution compelling because it is such a structurally well-made and properly adopted compact among free individuals. It is that, but it is, in my view, compelling because it further reflects a compelling (if religious) truth of human nature and how they can react to and guard against the unfairness of state compulsion. That is why it has endured so long, I believe. Its truthy, to adopt a memetic view of why people believe anything.
But, like the Roman Republic’s constitution, which more or less was in place to address that same truth, our constitution is slowly being undermined by the corruption of that truth by the overweening pride of the administrative state - by which I mean that, like in Rome prior to the Empire, the agreed upon structures of government became so distorted and corrupted by private fancy that an overthrow of the Republic became imaginable. Gradually, then suddenly - kind of like what is going to happen with our US Treasury debt burden.
So, funnily (in light of my misreading noted above), your statement about “judges and regulators” strikes me as inapt. They aren’t the same thing procedurally or substantively - a judge is very unlikely to be captured by those they regulate, because mostly they judge everybody - an exception that proves the point, I think, is family law courts who are, let us say, captured by feminist groupthink (note - I am not saying that generalist division judges can’t be captured, they can, but good old bribery is a rather different kind of corruption from the adherence to various feminist family law priors of most everyone involved in such disputes (except the fathers, of course)).
This has gotten long, so I will stop with this: the administrative state is, I think, the ultimate expression of the positivist position you and I both dislike. And THAT, gradually, and then suddenly, is gonna put our eyes out. Therefore, when I read someone calmly talking about morality vis a vis administration, I hit the wall as if someone just tried to put my eye out.
I don't want ALJs weighing moral issues. I want ALJs deciding things like whether an employee meets the statutory/regulatory checklists for 1) injured 2) on the job and 3) by how much. Likewise I want USCIS employees deciding asylum claims by a strict regulatory framework, which puts the BOP squarely on the "refugee" to show a legit claim for asylum by statute and regulatory criteria versus living in a bad neighborhood. And I don't want any reference to morality, decency, common good or "seeking a better life" anywhere in the process.
In sum, I want an executive branch that executes the laws, period full stop. The moral touchstone for ALJs is whether they are following the mundane words on paper we give them.
Apologies for talking an overly cribbed view. To expand a bit, I think the moral function of an ALJ, as with any bureaucrat, is good governance based on what the lawgiver has tasked them with administering. I am skeptical how far a moral dimension extends into administrative law adjudication. IOW they're mandarins, not philosopher-kings, and please don't give them any ideas.
Do you notice that you had to use moral language (“good governance”) in your reaponse? That seems like a moral judgement to me. Shouldn’t we admit it so that we can enter a rational discussion about what is good rather than impose your view on others?
The moral heavy lifting has been done in the structure of government and the legislative determination of what is e.g. a compensable workplace injury. We need bureaucrats who do their jobs well, not frustrated social engineers decreeing "morality."
There's room for this in the lofty heights of constitutional and inter-branch jurisprudence, but I really don't see it at the ALJ level.
I agree with your assuming of where the ‘moral heavy lifting at least should occur. Judicial and regulatory restraint and deferral are goods that need established with the hierarchy of goods (and you have a very strong hierarchy). We do not need social engineers’ and no doubt, issues of morality will occur to greater or lesser degrees dependent on the situation. Nonetheless to posit a ‘moral free zone’ reminds me of people who justify their involvement in torture, for instance, as ‘I was just obeying orders like a good bureaucrat.’ It has some truth but ultimately begs the issue of what a ‘good’ bureaucrat is.
… found increasingly problematic. As the fact/value distinction and accompaning institutionalism and proceduralism and pragmatism fade, it seem that language demands framing the issue in terms of a good that is common, at least if one wants to keep law tied to reason rather than a rational values
The moral policy choices have been made by the legislature: if you are injured on the job you get compensation for the necessary medical treatments and disability payments at scheduled rates (to disincentivize fraud). The ALJ doesn't get to substitute his moral judgment for the legislature. He's just supposed to apply the law to the facts. He can't decide the scheduled amounts are perverse incentives and need to be lower, or that they're too stingy and need to be higher. Same for asylum claims, SEC disclosures, SSDI eligibility etc. If Judge Marcus Aurelius thinks otherwise, he can run for the legislature. Otherwise he discharges his moral obligation by putting in a full day's work, ruling fairly and impartially without bias, prejudice or deceit, and staying in his governmental lane.
Morality is not a mere matter of choices. It is in practices that become habitual to produce a certain type of ALJ-one who would justly apply the law to the case. I'm not disagreeing with your examples, only your use of language to describe them. A good judge will defer to legislation and justly discern the relevant data for the case-a thoroughly moral exercise. ‘Facts' are never self-apparent but require a form of life within a whole network of humans and non-humans. By reducing morality to choices based on facts, you limit the ability to give a thick account of what goes on in the legal ‘application' of the law.
Your thoughtful and important summary deserves and extensive response. Perhaps one could frame these issues if one commits to the fact/value distinction-which is deeply culturally and politically ingrained but
To those asserting that administrative agencies should simply do what they are told and no more, you have missed the point completely. The issue at play is How they are to do what they are told to do. Background morality must come in to make such determinations. Just as background morality must come into play in determining all written law. This doesn't mean that agencies can do whatever they think is good, just as judges cannot replace the written law for their own assertions about morality. But it does mean that at the point of application, background principles are Required to make a rational determination.
If an agency is tasked with making requirements for nutrition labels on food, the scope of the task is pretty well defined. If they are tasked with ensuring our food is wholesome and fit for consumption, the scope is much broader. While both tasks limit the scope of the agency to their area of competency, the generality of the tasks set before it are very different. Morality is required in considerations of such tasks, and the broader the task, the more background principles are needed. No amount of procedural investigation can reveal what is meant by "wholesome" food. It's a value-laden moral principle.
I would also ask that those opposed to agencies at the federal level consider state or local governing bodies instead. Are you against power being delegated to agencies at the federal level, or at all levels ever, and even in principle? If the latter, I wonder how you think governments are supposed to function. Why should our lawmakers not be able to delegate certain responsibilities to the experts in their domains?
How about we put the burden of proof on the proponents. What is the moral methodology to be applied in determining a compensable workplace claim?
The notion that administrative scholars, administrative lawyers, administrative law judges, administrative rule writers, and agency administrators are, for even a moment, considering the moral framework of their “governing” is abhorrent. Perhaps you should simply do what the elected representatives of the people tell you to do.
I know this is hard for you to hear as you seek to shape what you choose to call the “post-liberal” world order (but strangely cannot define). It is still the case that our existing constitutional order, as written and interpreted, is the master of our law making. The power to legislate continues to reside in our elected representatives, who are bound as representatives to consider and apply a moral framework supplied to them by the unwashed flabby black-hearted people (among whom I count myself, especially the flabby part.) Figuring out that moral framework is their domain, not yours or your law school’s.
Sounds like you want to govern. Servants don’t govern. They are given their orders and use their intelligence to carry them out efficiently and effectively. I know you want more - but you should govern only yourself and learn to accept your place, or, enter the arena of politics and take your ideas for change to your masters for their consideration.
I find your response curiously paradoxical in that you use moral language (abhorrent) to protest against the use of moral language. The inevitability of moral language in law seems to be the issue that the precis is trying to raise
Let me solve the paradox: I am not writing a rule or an administrative law decision but a response to a, frankly, vague article you say is about the inevitability of moral language in law. It seems to me the writer is trying to justify moral reasoning in an arena that should take the law being administered as if there is no open moral question. I fully understand this is impossible as a practical matter. I am with one of the other commenters here who said - don't give administrative law people any ideas. The administrative state (aka the blob in the swamp) has been given airs by our representative politicians through the delegation of their authority. I bless the Supreme Court effort to keep the administrative state in its constitutional lane.
I am aware that there is a vacuum in the space between what a politician understands in passing a law and the grounded reality of agency administration. That is down to us unwashed flabby black-hearted voters failing to demand an education system that teaches the constitution properly (ie, what it says, not oppressed/oppressor theology) to new unwashed flabby black-hearted voters. I also understand that the voters (like the heart) want what the voters want. How to get them to want less impossible things is a different question. The proper role of those employed in the administrative state (including law professors) is to exercise humility.
I am not suggesting, nor does the article, progressive judicial judgment. I stand entirely with you against ‘liberationist’ judicial interventionalism. It seems to me that judicial restraint is a good of a judge or a refulator. It is a good, a moral category. Perhaps we just differ over whether the ‘vacuum’ is morally neutral and not a ‘space’ fraught with morality to greater or lesser degrees.
It is my understanding that the article does not answer questions but tries to show that the questions are there. It is, after all, a précis of a reviewed article that I have not read.
I admit that I find positivistic accounts of law as sole expressions of a constitutionally-driven social contract profoundly problematic and dangerous morally. But please don’t mistake me for a progressive. I just don’t occupy its textualist inversion
Haha - so I just followed you back - but when I had quickly read this comment yesterday I unconsciously dismissed what you had written because you wrote the word “refulator”. I looked at what you wrote again today more carefully after you followed me and I realized you meant “regulator”! When I had rejiggered by response frame I then read your comment more carefully and realized that was just a honest typo.
So I thought about what you wrote and - ok, that’s fine, I guess you don’t like “positivist” accounts of law. I would agree with that - I don’t find the U.S. Constitution compelling because it is such a structurally well-made and properly adopted compact among free individuals. It is that, but it is, in my view, compelling because it further reflects a compelling (if religious) truth of human nature and how they can react to and guard against the unfairness of state compulsion. That is why it has endured so long, I believe. Its truthy, to adopt a memetic view of why people believe anything.
But, like the Roman Republic’s constitution, which more or less was in place to address that same truth, our constitution is slowly being undermined by the corruption of that truth by the overweening pride of the administrative state - by which I mean that, like in Rome prior to the Empire, the agreed upon structures of government became so distorted and corrupted by private fancy that an overthrow of the Republic became imaginable. Gradually, then suddenly - kind of like what is going to happen with our US Treasury debt burden.
So, funnily (in light of my misreading noted above), your statement about “judges and regulators” strikes me as inapt. They aren’t the same thing procedurally or substantively - a judge is very unlikely to be captured by those they regulate, because mostly they judge everybody - an exception that proves the point, I think, is family law courts who are, let us say, captured by feminist groupthink (note - I am not saying that generalist division judges can’t be captured, they can, but good old bribery is a rather different kind of corruption from the adherence to various feminist family law priors of most everyone involved in such disputes (except the fathers, of course)).
This has gotten long, so I will stop with this: the administrative state is, I think, the ultimate expression of the positivist position you and I both dislike. And THAT, gradually, and then suddenly, is gonna put our eyes out. Therefore, when I read someone calmly talking about morality vis a vis administration, I hit the wall as if someone just tried to put my eye out.
Cheers!
I don't want ALJs weighing moral issues. I want ALJs deciding things like whether an employee meets the statutory/regulatory checklists for 1) injured 2) on the job and 3) by how much. Likewise I want USCIS employees deciding asylum claims by a strict regulatory framework, which puts the BOP squarely on the "refugee" to show a legit claim for asylum by statute and regulatory criteria versus living in a bad neighborhood. And I don't want any reference to morality, decency, common good or "seeking a better life" anywhere in the process.
In sum, I want an executive branch that executes the laws, period full stop. The moral touchstone for ALJs is whether they are following the mundane words on paper we give them.
Apologies for talking an overly cribbed view. To expand a bit, I think the moral function of an ALJ, as with any bureaucrat, is good governance based on what the lawgiver has tasked them with administering. I am skeptical how far a moral dimension extends into administrative law adjudication. IOW they're mandarins, not philosopher-kings, and please don't give them any ideas.
Do you notice that you had to use moral language (“good governance”) in your reaponse? That seems like a moral judgement to me. Shouldn’t we admit it so that we can enter a rational discussion about what is good rather than impose your view on others?
The moral heavy lifting has been done in the structure of government and the legislative determination of what is e.g. a compensable workplace injury. We need bureaucrats who do their jobs well, not frustrated social engineers decreeing "morality."
There's room for this in the lofty heights of constitutional and inter-branch jurisprudence, but I really don't see it at the ALJ level.
I agree with your assuming of where the ‘moral heavy lifting at least should occur. Judicial and regulatory restraint and deferral are goods that need established with the hierarchy of goods (and you have a very strong hierarchy). We do not need social engineers’ and no doubt, issues of morality will occur to greater or lesser degrees dependent on the situation. Nonetheless to posit a ‘moral free zone’ reminds me of people who justify their involvement in torture, for instance, as ‘I was just obeying orders like a good bureaucrat.’ It has some truth but ultimately begs the issue of what a ‘good’ bureaucrat is.
Sorry. Didn’t mean to post yet.
.,
… found increasingly problematic. As the fact/value distinction and accompaning institutionalism and proceduralism and pragmatism fade, it seem that language demands framing the issue in terms of a good that is common, at least if one wants to keep law tied to reason rather than a rational values
The moral policy choices have been made by the legislature: if you are injured on the job you get compensation for the necessary medical treatments and disability payments at scheduled rates (to disincentivize fraud). The ALJ doesn't get to substitute his moral judgment for the legislature. He's just supposed to apply the law to the facts. He can't decide the scheduled amounts are perverse incentives and need to be lower, or that they're too stingy and need to be higher. Same for asylum claims, SEC disclosures, SSDI eligibility etc. If Judge Marcus Aurelius thinks otherwise, he can run for the legislature. Otherwise he discharges his moral obligation by putting in a full day's work, ruling fairly and impartially without bias, prejudice or deceit, and staying in his governmental lane.
Morality is not a mere matter of choices. It is in practices that become habitual to produce a certain type of ALJ-one who would justly apply the law to the case. I'm not disagreeing with your examples, only your use of language to describe them. A good judge will defer to legislation and justly discern the relevant data for the case-a thoroughly moral exercise. ‘Facts' are never self-apparent but require a form of life within a whole network of humans and non-humans. By reducing morality to choices based on facts, you limit the ability to give a thick account of what goes on in the legal ‘application' of the law.
Your thoughtful and important summary deserves and extensive response. Perhaps one could frame these issues if one commits to the fact/value distinction-which is deeply culturally and politically ingrained but