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Vermeule, Cornelius

Chevron, U.S.A. v. Natural Resources Defense Council lays out a two-step process that courts must follow when they review a federal agency's construction of a federal statute. We argue that Chevron, rightly understood, has only one step. The single question is whether the agency's construction is permissible as a matter of statutory interpretation. The two Chevron steps both ask this question, just in different ways, and are thus mutually convertible: any opinion written in terms of one step can be written, without loss of content, in terms of the other step. Chevron's artificial division of a unitary inquiry causes material confusion among commentators and courts, and has no benefits; administrative law should jettison the two-step framework.

What is the connection, if any, between the external perspective of the historian or political scientist and the internal perspective of lawyers and judges? That is the puzzle for constitutional law posed by Charles Beard’s classic, An Economic Interpretation of the Constitution of the United States (1913). Beard challenges us either to reconcile our external and internal perspectives on constitutionalism, or else conceivably to declare them irreconcilable.

I begin by showing that standard approaches to constitutional adjudication – originalism and Dworkinian moralism – are resolutely internal and thus have little use for the external standpoint of Beardian scholarship. I then describe a strategy of reconciliation offered by Justice Holmes, one that connects external and internal perspectives by means of a nonideal theory of constitutional judging under political constraints. The theory holds that the rational judge chooses the course of action that, at lowest possible cost, adjusts constitutional law and policy to match “the actual equilibrium of force in the community – that is, conformity to the wishes of the dominant power[].” In this framework, Beardian scholarship offers external analysis of the shape and force of the political constraints that the Holmesian judge should take into account when making constitutional law. External Beardian scholarship helps to delineate the feasible political options or possibilities for constitutional law, a critical datum from the internal but nonideal perspective of the Holmesian judge.

Legal and political theory have paid a great deal of attention to supermajority rules, which require a fraction of votes greater than 1/2+1 to reach a decision, and thus empower a minority to block change. In this paper I consider the opposite deviation from simple majority rule: submajority rules, under which a voting minority is granted the affirmative power to change the status quo. Among the examples I will consider are: - The Journal Clause, which allows 1/5 of the legislators present in either House to force a roll-call vote; - The discharge rule in the House, which (at various points, although not today) has permitted a specified minority of legislators to force bills out of committee for consideration on the floor; - Senate Rule XXII, under which a cloture petition is valid when signed by sixteen Senators; - The Seven Member Rule, under which a minority of designated committees in the House and Senate can require the executive branch to divulge information; - House Rule XI, which entitles committee minorities to call witnesses at hearings; - The famous Rule of Four that allows four Justices to grant a writ of certiorari and thereby put a case on the Supreme Court's agenda; - Rules governing direct democracy that permit a defined minority of a state's electorate to place a question on the ballot, or to force a recall election; - Rules governing international organizations, which frequently allow a defined minority to call an emergency session or to force a roll-call vote. Submajority rules are rarely discussed, either because they are assumed not to exist, or because they are assumed to lack any institutional virtues, or because submajoritarian decisions are assumed to be chronically unstable in light of the risk that subsequent majorities will reverse the submajority's decision. I will dispute all three assumptions. Submajority rules have important procedural and deliberative virtues: in a range of situations they enable a minority to force public accountability upon a majority, to the benefit of the institution as a whole. The reversibility problem can be, and is, dampened by other institutional rules and norms that protect submajoritarian decisions, or by the simpler expedient of adopting submajority rules only for decisions that are inherently irreversible or costly to reverse, such as decisions that release information into the public domain.

In the administrative state, how should expert opinions be aggregated and used? If a panel of experts is unanimous on a question of fact, causation, or prediction, can an administrative agency rationally disagree, and on what grounds? If experts are split into a majority view and a minority view, must the agency follow the majority? Should reviewing courts limit agency discretion to select among the conflicting views of experts, or to depart from expert consensus? I argue that voting by expert panels is likely, on average, to be epistemically superior to the substantive judgment of agency heads, in determining questions of fact, causation, or prediction. Nose counting of expert panels should generally be an acceptable basis for decision under the arbitrary and capricious or substantial evidence tests. Moreover, agencies should be obliged to follow the (super)majority view of an expert panel, even if the agency's own judgment is to the contrary, unless the agency can give an epistemically valid second-order reason for rejecting the panel majority's view.

A central, organizing motif of Cass Sunstein's work is the effort to spell out the consequences of the New Deal for American law. I suggest that anyone who shares Sunstein's premises can and should go even farther in this direction. The logical consequence of Sunstein's views is a New Deal for all civil liberties and personal liberties. Criminal law and procedure, and cases growing out of the Global War on Terror, should be approached through New Deal lenses. All civil and personal liberties will ultimately have to justify themselves at the bar of cost-benefit analysis. This essay is prepared for a symposium on "The Scholarship of Cass R. Sunstein" to be published by the Tulsa Law Review.

This paper responds to Bruce Ackerman's recent book on emergency powers (After the Next Attack: Emergency Powers in an Age of Terrorism). Ackerman stumbles into a methodological pitfall by offering a self-defeating proposal: the diagnosis that Ackerman offers itself rules out the prescription that he suggests. Proposals defeat themselves when the motives, beliefs or political opportunities ascribed to relevant actors by the theorist's diagnosis are incompatible with the solution that the theorist offers. The value of the book, then, is that it provides a methodological cautionary tale.

In Noel Canning v. NLRB, 705 F.3d 490 (D.C. Cir. 2013), the D.C. Circuit held (inter alia) that the President’s constitutional power to make recess appointments does not include recesses during a session of the Senate (“intrasession recesses”), as opposed to recesses between sessions (“intersession recesses”). Many commentators have taken Canning to be principally a textualist and originalist decision. I argue, to the contrary, that Canning’s textualism and originalism are derivative strategies by which the court attempted to fashion a precautionary rule against presidential aggrandizement. As such Canning is best understood to exemplify a mode of constitutional adjudication that we might call precautionary constitutionalism. As a normative matter, Canning illustrates the major problem of precautionary constitutionalism: myopic focus on a target risk may cause the rulemaker to ignore or underestimate countervailing risks, resulting in unintended, counterproductive or perverse consequences.