I found this to be a very interesting book, but also a very cumbersome one. Essentially, Law and Leviathan argue that the authoritarian nature of government corruption that makes up what's commonly called the deep state has come about because of a lack of transparency and moral authority within these systems. A just and fair public sphere can be achieved, if the rule of law is respected and upheld, with moral authority as the backbone. Without this, we've seen the corruption and misappropriation happen on all levels, as technicalities, legal loopholes, polarity, and nepotism causing this decay from within.

A solid read, but very, very dense. Requires a high level of knowledge of legal jargon and history in order to be comprehensible to the reader.

First, find a molehill

Law is theater. Lawyers can settle in to argue the meaning of a comma or the word “and”. It fascinates lawyers and judges, and baffles the merely mortal. In Law and Leviathan, Cass Sunstein and Adrian Vermeule dissect the administrative state, possibly the least exciting aspect of government. They do it by assessing the mood of the Supreme Court. In judgment after judgment, the fate of federal agencies is bandied about as if the agencies’ missions were the last thing to be considered. It is all about interpretation of the Constitution (Article 1, Section 1 in particular) and precedents.

The book assumes a lot. It assumes the reader is already familiar with key decisions such as Chevron (1984) and Auer. There is no thought to making it all accessible to the lay reader. This is ammo for lawyers arguing before the Supreme Court, on issues that would bore the average reader to tears: the right of federal agencies to operate at all.

At issue is the delegation of power. Congress is charged with carrying out certain orders, and it cannot (constitutionally speaking) offload those powers to others. So are agencies like the Food and Drug Administration, the Environmental Protection Agency and the Federal Communications Commission operating against the wishes of the founders?

The book answers no they are not outside the Constitution, as I would think any literate person would. As the authors note, Congress is not delegating or transferring its power so much as exercising it in a assigning to tasks to fulfill its own mandate. Sadly, it takes a whole book to make a lawyer see this.

There is, after all, not just the Constitution but also the Administrative Procedures Act that lay out all these responsibilities and tasks for all to abide. But that has never stopped an American from suing anyway. Or for activist judges like Neil Gorsuch, who figures prominently here, from trying to change the very notion of government.

It’s not just their mere existence either. Lawsuits also target the rulings, of course. So arguments shift to whether the agencies can make their rules retroactive (no – so far), and how far they can go outside their mandate (scope creep). in order to preserve and defend the public good.

Despite all my reviews of Cass Sunstein books, this is a different Sunstein in Law and Leviathan. Here he abandons his user-friendly style and accessible examples for the far more dense vocabulary of administrative law. It is less than fascinating and more eye rolling. Is this what we need a Supreme Court for? In the USA, the answer is yes.

David Wineberg