Friday, March 22, 2019
Remarks I delivered today at the Center for the Study of the Administrative State’s excellent conference on “Religion and the Administrative State.” The panel began with a paper by Mark Rienzi of Catholic University. This was my response.
Bureaucracy and Mystery
(Conference on “Religion and the Administrative State,” March 22 2019)
Thanks to Andrew Kloster and Adam White for having me here. Despite several kind invites from Adam over the years, this is my first time at both the Scalia School of Law and at the Center for the Study of the Administrative State, so it’s a great pleasure.
I’m here as a scholar of administrative law who has relatively little expertise in law and religion and doesn’t work in that field directly. In that regard I both greatly enjoyed and profited from Mark Rienzi’s excellent paper. It seems to me the core descriptive observation of the paper must be correct: that SCOTUS law has seen, over recent decades, an increase in the number of cases in which a conflict over religion was caused by an administrative action, rather than an act of legislation. It rings true immediately; it fits our experience and fits the data.
In formulating this observation we have to be a bit careful, legally, because there is a tricky argument that there can be no such thing as an exercise of administrative authority in its own right. The antinomy would run as follows: either the administrative act has, or does not have, legislative authorization. If it does not, then it fails independently of any religion-related issues. If it does, then legally speaking the real cause is the legislative decision to authorize the agency to take that act. On this view, there would be no such thing as an act of administrative power that should be classed as an alternative to an act of legislative power, as Rienzi does. Still, we know what Rienzi means and what he is referring to: there has plausibly been an increase in discretionary agency actions that impinge upon religious values, actions that, while authorized by statute, are not required by it and that seem to rest on the agency’s pursuit of a mission that is either heedless of or affirmatively hostile to religious perspectives.
So the main observation of the paper seems true and important. When we come to discuss the causes of the phenomenon, however, I began to be inclined to dissent in part. It seems to me that the paper might be read to assume that there is some intrinsic tension or conflict between the growth of administrative bureaucracy and religious commitments, such that the administrative state is mainly to be understood as a threat to religious values. Rienzi, for example, suggests that specialization is a structural cause of administrative conflict with religious values: “In the exercise of their specialized mandates, agencies will be more likely to have a single-minded focus on a particular goal, and therefore more likely to undervalue, ignore, or simply be unaware of competing interests that are outside of their specialty field.”
I don’t quite see why this makes agencies structurally prone to ignore or discount religious values in particular. Everything depends on what is defined as inside or outside any given agency’s area of specialization and substantive mission. Consider what is by many measures the largest and oldest continuous bureaucracy in human history: the Catholic Church. Here we have institutional specialization raised to an art form; consider the Roman Curia, with its literally Baroque divisions and subdivisions. One might say that the genius of Catholicism is precisely the marriage of bureaucracy with mystery. Indeed Carl Schmitt once joked that Catholicism triggers special horror in the Anglo-Saxon mind because it combines two things that the Anglo-Saxon cannot abide: bureaucracy and celibacy.
What matters, then, is not specialization in itself, because specialization is an intrinsically neutral institutional technology. What matters, rather, is the substantive content of the mission that bureaucracy is entrusted with. Now, it is undeniable that policy making by our American bureaucracy has, for complicated historical reasons, come to be largely defined as a “secular” liberal-technocratic enterprise. (I have put “secular” in scare quotes because I think the American liberal-technocratic enterprise itself flows from a very particular set of recognizably religious commitments, whether or not its holders describe themselves as such. That set of commitments is an odd and distinctive mix of Pelagianism and immanentized historical providentialism, and that when the bureaucracy carries out policies justified with reference to cost-benefit analysis it is often demonstrably engaged in a kind of faith-based initiative. But all that is a conversation for another time). In recent decades, as one and arguably both of the major political parties has come to be dominated by an increasingly “secular” urban liberal bourgeoise, it should be no surprise that we have seen agencies pursuing missions that are hostile to, or at least heedless of, religious values. The most striking examples of administrative hostility to religion, in my view, have not arisen from autonomous mission-oriented administrative action gone off the rails, without political direction, but instead have arisen precisely in areas where the incumbent White House has had a clear ideological and political worldview that was explicitly or implicitly communicated to, and pursued by, the bureaucracy. I would suggest that the policy choices related to the contraceptive mandate that led up to the Zubik episode in the Supreme Court, as well as the Solicitor General’s notorious warning or threat during the oral argument in Obergefell that the administration would consider denying tax exemptions to faith-based universities, both fit this description.
So the administrative state, in my view, is an institutional technology that can be put to good or bad ends, and is no more intrinsically hostile to religion than is, say, the use of written rather than oral communication. As a kind of complement or counterpoint to Rienzi, then, I want to very briefly envision a different relationship between administrative bureaucracy and religion, one in which bureaucracy could be seen as a useful positive instrument for the promotion of religion, rather than only as a threat. Again, I by no means deny it can be a threat, just as the kitchen knife that serves the family can accidentally cut people, and can even be deliberately turned to bad ends. But we still keep knives in the kitchen.
Let me distinguish two ways the administrative state could be put to beneficial use to promote religion. One is by clearing away legal and economic obstacles to religious practice, obstacles thrown up by other sorts of institutions; another is by directly and affirmatively promoting religious values.
Under the heading of “clearing away obstacles,” we might find the work of bodies like the new religious liberty office in HHS, or similar bodies in, say, the Department of Education that could monitor universities, schools and local school boards. All the quasi-coercive apparatus of administration that libertarians love to hate — Dear Colleague letters, interpretive rules, Auer deference, implied threats to cut funding, vague but ominous warnings — can be brought to bear on recalcitrant universities and other institutions that threaten the religious exercise of students, faculty, or other constituents. An inspirational model here is the Executive Order signed on March 21 requiring universities to respect free speech principles, on pain of losing funding. With respect to the for-profit sector, consider cases like Patterson v. Walgreen, just granted by SCOTUS, in which the question is whether a firm may require an employee to appear for training on a Saturday, in violation of the employee’s Sabbath devotion. There is no reason why relevant federal agencies cannot use their array of instruments to nudge employers to grant generous accommodations in such situations.
Under the heading of “affirmative promotion,” one can imagine a variety of initiatives that might bring faith-based perspectives to regulation. Apart from program-specific offices, one might think more ambitiously about a general executive order, perhaps folded into the existing executive orders governing OMB and OIRA, that would require all agencies to consider religious values when regulating, just as they were instructed by President Obama’s Executive Order 13,563 to consider vaguely defined values favored by the Religion of Humanity, namely “equity, human dignity, fairness, and distributive impacts.” This sort of procedural requirement— call it a “religious impact statement” — would amount to something like an expansion, clarification, specification and more direct application to OIRA of President Trump’s Executive Order on religious liberty and free speech from May 2017, and the subsequent implementing guidance from the Attorney General.
In a kind of maximum programme - at least, the maximum that can be imagined within the confines of our liberal institutions, for now - one might even imagine a day when the law of judicial review of agency action will itself build in scope for administrative promotion of religious values, above and beyond statutes like RFRA. The possibilities are manifold; I’ll mention only a few. We might imagine a general substantive canon of construction, for example, under which statutes would be construed, where fairly possible, not to encroach on religious values. This would be no more or less justifiable than any number of other substantive, value-laden interpretive canons in our law. Under arbitrary and capricious review, likewise, we might imagine a world in which agencies would have discretion to appeal to religious values as justifications for agency action, where statutes are otherwise silent or ambiguous. If, as a number of administrative law scholars now believe, it is legitimate for agencies to appeal to the “political philosophy” of the incumbent administration, it is hard to see why religious values should be on a different footing. Such values are in my view part and parcel of every political philosophy, in one form or another. As Cardinal Henry Edward Manning argued, all political conflict is ultimately theological.
I merely throw out these speculative possibilities as discussion fodder, but I do think they are within the range of the thinkable, however remote from current law they may or may not be. Many stranger metamorphoses have occurred in our law over the decades and centuries. In any event, however plausible or implausible such a possible future may be, the existence of the possibility itself demonstrates my point, that the administrative state and its accompanying law are orthogonal to, rather than intrinsically opposed, to religious values, and — in the right hands — can be put into service in order to promote them.