Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Wednesday, April 3, 2019

Recalling the legacy of St. Pope John Paul II

April 2 was the 15th anniversary of the death of Pope (now Saint) John Paul II.  Here is a post I wrote, back in 2005, reflecting on some aspects of his life and legacy that seemed relevant to the work of Mirror of Justice:

Here's a post I did, the day after Blessed Pope John Paul II's death, back in April of 2005:

I'm sure that many of us are reflecting on the effect that the Holy Father had on our faith and lives, and thanking God for the gift of his ministry and example.  It also makes sense, here on MOJ, for us to consider what the Pope's work and thought might mean for law and legal theory.  A few thoughts:

First, many of the Pope's writings focus on the importance of culture as the arena in which human persons live, thrive, and search for truth.  His was not a reductionist Christianity -- one in which the choices and hopes of persons drop out of the analysis, and are replaced merely by one "dialectic" or another. Nor is Christianity merely a matter of a rightly ordered interior life.  We are precious and particular, bearing the "weight of glory," but also social, relational, political -- and cultural.  And, he recognized, law both shapes and is shaped by culture.

Second, the Pope returned again and again to the theme of freedom.  Certainly, for lawyers -- and particularly for lawyers living and working in our constitutional democracy -- questions about the extent to which law can and should liberate (and, perhaps, liberate-by-restraining?) are appropriately on the front burner.  It's fair to say that John Paul II proposed an understanding of freedom -- and of its connection with (T)ruth -- that contrasts instructively with the more libertarian, self-centered understanding that seems ascendant in our law (particularly our constitutional law) today.

Third, I imagine we will be working out for decades the implications of the Pope's proposal that the God-given dignity of the human person, and the norm of love, richly understood, should occupy center-stage in our conversations about morality -- rather than utilitarian calculations, historical movements, or supposed categorical imperatives.  This proposal seems particularly powerful when it comes to the matter of religious freedom.

Finally, there is the (perhaps, at first) surprising fact that, at the end of the 20th Century, it was a mystical Pope who "stepped up" and reminded a world that had been distracted, or perhaps chastened, by reason's failures, and had embraced a excessively modest, post-modern skepticism, of the dignity and proper ends (without overlooking the limits) of reason.

April 3, 2019 in Garnett, Rick | Permalink

Monday, April 1, 2019

This Week at Villanova: Mary Hirschfeld on Aquinas and Economics

For readers in the Philadelphia area: the McCullen Center at Villanova will host its annual symposium on Catholic social thought and law on Tuesday, April 2 at 3:00pm. This year's symposium will focus on my colleague Mary Hirschfeld's exciting new book, Aquinas and the Market: Toward a Humane Economy (Harvard University Press, 2018). Respondents will be Jonathan Klick (Penn Law), Russ Roberts (Hoover Institution and host of "EconTalk"), and Thomas Smith (Villanova). Details here.

April 1, 2019 in Moreland, Michael | Permalink

Thursday, March 28, 2019

Garnett on "Equitable Establishments"

I'm pleased to return, in the latest issue of First Things, to a subject that is dear to my heart, i.e., the statue of "Big Mountain Jesus" at Whitefish Ski Resort in northern Montana.  My paper, "Equitable Establishments", is also available on SSRN for download.  Here is the abstract:

This paper, which was prepared for discussion at the May 2018 Dulles Colloquium, convened by the Institute for Public Life, engages current discussions and debates regarding the nature of “liberalism” and the content of “religious freedom.” It considers, specifically, whether a “liberal" political community may and/or should recognize or establish a religion, drawing on the Second Vatican Council's “Declaration on Religious Freedom.” And, it addresses the controversy surrounding “Big Mountain Jesus.”

And, here's a quote:

First, it is not the case that political morality necessarily requires that societies—or political authorities or states—be liberal, or liberal in the same way. There have been, are, and will be some political communities that probably don’t count as liberal but still protect the well-being of persons, promote their flourishing, and observe the constraints that political morality imposes. To ask, then, whether a liberal society can favor one religion over the others is not simply to ask whether political morality permits (or requires) such favoring. I am inclined to think that at least some of the various features of liberal regimes and societies are morally required, but again, perhaps not all are.

Next, there is the related point that not every institution, association, or enterprise within a liberal society—or, that is governed by a liberal political authority—needs to be liberal. Quite the contrary: The political authority in a liberal society must not only tolerate, but also affirm and support natural and social elements that are themselves not liberal. The ontology of a liberal society need not be liberal “all the way down.” And so, whatever the answer is to the question whether a liberal order can prefer one religion over the others, it should be clear that such an order can, does, and should include societies that can, do, and should.

Third, it should be acknowledged that some ostensibly liberal societies and regimes do favor one religion over others: namely, a religion of liberalism. Indeed, to use the word “favor” might be to put things too delicately or to undersell the enterprise of muscular, evangelizing, “progressive” liberalism. While litigants have attempted and failed to convince American judges to label the secular humanism proposed (or imposed) in public schools as a religion, it does seem right to say that, at least in some of its manifestations, “liberalism has a sacramental character.”

Feedback is welcome!  Thanks to the First Things team for including me in the magazine.

March 28, 2019 in Garnett, Rick | Permalink

Tuesday, March 26, 2019

Lumen Christi Symposium on Perreau-Saussine's "Catholicism and Democracy"

This event looks great!

 Rémi Brague Sorbonne, Ludwig Maximilian University of Munich

Daniel Mahoney Assumption College

Gladden Pappin University of Dallas

Mary Keys University of Notre Dame

Looking at leading philosophers and political theologians—among them Joseph de Maistre, Alexis de Tocqueville, and Charles Péguy—Perreau-Saussine shows how the Church redefined its relationship to the state in the long wake of the French Revolution.

Disenfranchised by the fall of the monarchy, the church in France at first embraced that most conservative of ideologies, "ultramontanism" (an emphasis on the central role of the papacy). Catholics whose church had lost its national status henceforth looked to the papacy for spiritual authority. Perreau-Saussine argues that this move paradoxically combined a fundamental repudiation of the liberal political order with an implicit acknowledgment of one of its core principles, the autonomy of the church from the state. However, as Perreau-Saussine shows, in the context of twentieth-century totalitarianism, the Catholic Church retrieved elements of its Gallican heritage and came to embrace another liberal (and Gallican) principle, the autonomy of the state from the church, for the sake of its corollary, freedom of religion. Perreau-Saussine concludes that Catholics came to terms with liberal democracy, though not without abiding concerns about the potential of that system to compromise freedom of religion in the pursuit of other goals.



March 26, 2019 in Garnett, Rick | Permalink

Monday, March 25, 2019

The Irrelevance of the “Rule of Law” after 9/11

Remarks delivered at a book talk organized by the Harvard Law School Library, in response to a talk by Prof. Claire Finkelstein based on “Sovereignty and the New Executive Authority” (Finkelstein and Skerker, eds. 2019).


The Irrelevance of the “Rule of Lawafter 9/11


In light of the many issues raised by the book and by Prof. Finkelstein’s talk, I can’t hope in ten or twelve minutes to do more than make one substantial point, a point that aims to kill as much fun as possible. I suggest that there has been no significant issue about the relationship between the executive and the rule of law at least since 9/11. Everything that has occurred, every controversy surrounding presidential or executive authority, has been entirely internal to the ordinary practice of legalism and has involved applications of ordinary legal standards and arguments that are theoretically banal, however great their practical importance — with one arguable exception I will mention at the end.

Overall, when people think they are raising issues about the rule of law, they are usually raising issues about the sweeping delegations of statutory authority to the executive, especially in matters of national security and immigration, that have occurred during and after World War II and after 9/11. Complaints about delegation can be circuitously phrased as complaints about some enhanced or “thick” version of the rule of law, which attempts to fold into itself human rights, liberty, and all other good things. But delegation remains the central issue, so very little is gained by talking this way, while confusion is introduced about the real sources of executive authority.

Let me begin with a legal analogy, based on a reasonably obscure Supreme Court case from 1994 called Dalton v. Specter, involving the Defense Base Closure and Realignment Act of 1990. The suit attempted to enjoin the Secretary of Defense from carrying out a presidential order, under the Act, to close the Philadelphia Naval Shipyard. The Court, through Chief Justice Rehnquist, held that the claims were not reviewable. The President’s order could not be reviewed under the Administrative Procedure Act for conformity to statute because, the Court had previously held in Franklin v. Massachusetts, the President did not count as an “agency” under that Act.

To circumvent this barrier, the litigants attempted, and the Court of Appeals endorsed, an ingenious theory: any claim that the President has exceeded his statutory authority is always, and necessarily, a constitutional claim, which was reviewable notwithstanding Franklin. After all, the theory ran, if the President lacks statutory authority to do X, and supposing there is no independent grant of constitutional authority to do X, then under the majority opinion in Youngstown Sheet & Tube v. Sawyer, the President would violate the Constitution by doing X.

The Court would have none of it; the Chief observed that such a gambit would eviscerate the ordinary distinction between executive action that is unconstitutional and executive action that, purportedly resting on statutory authority, merely turns out to be ultra vires, in excess of that authority — as in every ordinary administrative law case. And, the Court added, the rule of law is just as fully vindicated when the courts hold that executive action is committed to executive discretion by the law itself, as it is when courts review and overturn executive action.

Dalton v. Specter captures, by analogy, a crucial point about executive power and the rule of law: when the executive appeals to ordinary positive legal authority,  such as a statute, there is no threat to the rule of law and no interesting issue of grand theory, even if the executive’s appeal is mistaken, in our judgment or even in the judgment of a court, and even if the executive has acted arbitrarily or abused its legal discretion. After all, we don’t think that the “rule of law” is implicated in any unusual or illuminating sense whenever the DC Circuit decides that an administrative agency has transgressed the bounds of its statutory authority by offering an unreasonable reading of the law, or even acted “arbitrarily and capriciously,” as happens approximately once per week. That sort of high-level talk seems unnecessary; we can just do administrative law from within.

Let me now turn to the Presidency where the same points apply, mutatis mutandis, as I have argued (along lines somewhat similar to those that Jack Goldsmith argued independently). The beginning of wisdom here - I use my categories, not Goldsmith’s — is to distinguish between what Commonwealth lawyers call “extraordinary prerogative” and “ordinary prerogative.” Ordinary prerogative is internal to the legal order; it includes the prerogative powers of the Crown that are themselves granted — at least arguably — by ordinary legal sources and authorities, common law or statute or, in our system, granted to the President by the written Constitution itself. Extraordinary prerogative arises when the executive genuinely acts outside the legal order or contrary to it (usually in the name of saving the legal order in some higher sense). Note that ordinary prerogative includes both cases in the so-called Category 1 of Justice Jackson’s Youngstown concurrence, where the executive acts under expressly delegated statutory authority, and Category 3 cases, where the executive claims that positive constitutional powers trump contrary statutes.

My thesis, then, is that approximately all assertions of presidential and executive authority since 9/11 have involved ordinary prerogative — usually on the basis of statute (Category 1), very rarely on the basis of constitutional authority said to override statute (Category 3, as in the bipartisan position of Presidents Bush and Obama that led to the second Jerusalem Passport case), but always within the enacted legal order, at whatever level.

To be sure, our history has seen genuine assertions of extraordinary prerogative on the part of Presidents, such as some but not all of Lincoln’s actions at the beginning of the Civil War, or FDR’s rather chilling warning to his Attorney General (intended to be passed on to the courts?) that he would ignore a judicial writ of habeas corpus in favor of Nazi saboteurs, in the events that lead up to Ex Parte Quirin. Since approximately World War II, however — and certainly since 9/11 — there has been little to no need for such things and precious few examples, in large part because Congress has delegated such sweeping powers to the executive, under statutes both broad and vague or ambiguous. And the courts have upheld those delegations even when the delegation itself has involved so-called “emergency” powers, as when the Court upheld the Emergency Price Control Act of 1942 in Yakus v. United States (1944). One might or might not find such delegation objectionable — I do not — but that is the main issue, and talk of the rule of law is largely otiose, at worst misleading.

I want to give one current example, one that has produced an outsized share of hysteria in recent months: the National Emergencies Act and President Trump’s associated proclamations. It seems counterintuitive to many people, but it is nonetheless true, that there is literally nothing interesting in this episode about the rule of law, at least in any sense that is not also implicated when EPA has to meet a claim that it has exceeded its authority or acted arbitrarily under, say, the Toxic Substances Control Act.

First of all, the administration points to one major source of statutory authority that has nothing to do with emergencies at all: a statute signed into law by President Obama on December 23, 2016, codified at 10 USC 284, that authorizes the Secretary of Defense to support the “construction of roads and fences and installation of lighting to block drug smuggling corridors across international boundaries of the United States.” Now, the administration might be right or might be wrong about whether this express statutory delegation does or does not cover what it proposes to do, but so might EPA in its toxic substance litigation. Talk of the rule of law is not an illuminating frame for the resulting legal discussion. There is no need to ascend, theoretically, to Hobbes, Locke or Hart. 

Secondly, the administration points to statutes such as 10 USC 2808, which contain authorities triggered by a declaration under the National Emergencies Act — in this case, the following authority: “in the event of ... the declaration by the President of a national emergency in accordance with the National Emergencies Act (50 U.S.C. 1601 et seq.) that requires use of the armed forces, the Secretary of Defense, without regard to any other provision of law, may undertake military constructionprojects” by spending appropriated but unobligated funds. Now, insofar as we focus on the substantive delegation here, 10 USC 2808, the same logic I mentioned applies; it’s an ordinary administrative law question whether the statues do or do not authorize the presidential action. The National Emergencies Act, for its part, is an explicit delegation to trigger authorities in other laws by proclamation. That might or might not itself be objectionable on nondelegation grounds as open-ended — that conversation would have to start with the observation that “emergency” is a somewhat misleading term of art in our law, given the dozens of statutory “emergencies” declared and ongoing by every administration since 1976, which often persist for years — but presidential action under it raises no particular or special concerns about the rule of law.

Finally, I mentioned at the outset one caveat to the suggestion that there have been no interesting rule-of-law issues surrounding executive power since 9/11. The caveat involves some of the episodes in the so-called “Resistance” to the Trump Administration, such as the decision by Sally Yates to instruct DOJ personnel not to enforce a presidential order that OLC had determined was lawful, on the grounds that in her view it was not “wise or just” and that she was, herself, “not convinced” of its legality. Of all the colorful dramatis personae of the Trump administration, Yates came the closest to declaring herself a Schmittian decisionmaker who personally determines when to make an exception to legal rules out of necessity, in order to ensure that the state takes no harm, to use the old Roman formulation. It was a failed declaration, of course, but a clear attempt at least. It is something of a puzzle why theorists interested in discussing the rule of law do not focus on such cases, which at least supply genuine material. Let me recommend, as a useful citation for those interested in the Yates case, an article Professor Fried wrote in a somewhat different context, entitled simply “Impudence.” 


March 25, 2019 | Permalink

Fifth anniversary of Hobby Lobby oral argument at SCOTUS

Today is the fifth anniversary of the oral argument in Burwell v. Hobby Lobby Stores, Inc. The date is easy enough to remember for Catholic lawyers, for it is only necessary to associate the date of oral argument with the Feast of the Annunciation, which we celebrate on March 25 each year. This correspondence between the litigation calendar with the liturgical calendar is one of a handful of others that came up during the course of the religious freedom litigation surrounding the contraceptives mandate. 

March 25, 2019 | Permalink

Saturday, March 23, 2019

"Pope Francis, True Religion, and Religious Liberty"

A worth-reading paper by Dr. Joel Harrison (Sydney).  Here's the abstract:

This article examines Pope Francis's understanding of the relationship between church and state, the ends of civil authority, and the importance of religious liberty. It argues that Francis challenges claims made by legal and religious scholars that civil authority must be neutral as to religious ends. Francis, the article contends, uses the categories of idolatry and solidarity as opposing ends that are cultivated by civil authorities caring for, most notably, the economy and the environment. Both are religious. Idolatry is the solipsistic pursuit of created things as an ultimate end and solidarity entails living in communion with God and others. The article further considers how these arguments have shaped Francis's views on religious liberty. Francis points to the importance of civil authorities respecting conscientious objection, the desirability of cultivating healthy pluralism, and religious liberty as securing the end of solidarity. This presents two challenges: first, to recent legal scholarship questioning the special importance of religious liberty; and second, to the exercise of religious liberty itself. If religious liberty is protected for the end of solidarity, can it be exercised wrongly? The article concludes by considering the Supreme Court's 2014 Hobby Lobby decision.

I note that Harrison has a book forthcoming from Cambridge University Press, Post-Liberal Religious Liberty, for which I'll be keeping my eyes open.  (I note that Harrison generously engages with a number of my own papers.  Thanks!)

March 23, 2019 in Garnett, Rick | Permalink

A cheer (but not three) for Gov. Newsom's capital-punishment move

As I discussed in this post, from 13 years ago (!), I have constrained enthusiasm for restrictions on the death penalty that are the result of either unsound constitutional interpretation or executive overreaches.  Gov. Gavin Newsom's defense of his recent announcement of a "moratorium" on capital punishment in California is, I believe, an example of the latter.  Let's put aside questions we might have about whether his stated reasons are his actual reasons.  Let's put aside also questions we might have about the plausibility of his statement that "[o]ur nation . . . looks to California for solutions that work and reflect our highest moral values."  In my view, his claim that he speaks for California and that he is acting "under [his] authority as governor" are very difficult to square with the fact that "California" just three years ago (a) rejected a ballot initiative that would have ended capital punishment and (b) adopted an initiative to speed up appeals and executions in capital cases.

Most of what Gov. Newsom says about capital punishment is, in my view, true and if I were a voter or a legislator in California I would vote to repeal the death penalty.  But, if the rule of law matters, then process matters as well as policy.  


March 23, 2019 in Garnett, Rick | Permalink

"Imbeciles" and "Illiberal Reformers"

A good read, and a good reminder. Plus ça change . . . 

It’s not surprising that Buck v. Bell was decided in the Roaring Twenties, a decade even more culturally charged than the one we live in today. The Ku Klux Klan was riding a wave of anti-Catholic, anti-Semitic fervor, creationists were battling Darwinists over the teaching of evolution, and Prohibition was pitting rural Protestant values and prejudices against a looser, more diverse urban culture. In Washington, Congress was busily writing the most restrictive immigration law in our history, the National Origins Act, to protect the country from foreign contamination. In the words of The Saturday Evening Post: “If America doesn’t keep out the queer, alien, mongrelized people of Southern and Eastern Europe, her crop of citizens will eventually be dwarfed and mongrelized in turn.”

According to Thomas C. Leonard, who teaches at Princeton, the driving force behind this and other such laws came from progressives in the halls of academia — people who combined “extravagant faith in science and the state with an outsized confidence in their own expertise.” “Illiberal Reformers” is the perfect title for this slim but vital account of the perils of intellectual arrogance in dealing with explosive social issues. Put simply, Leonard says, elite progressives gave respectable cover to the worst prejudices of the era — not to rabble-rouse, but because they believed them to be true.

March 23, 2019 in Garnett, Rick | Permalink

Friday, March 22, 2019

Bureaucracy and Mystery

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.

Adrian Vermeule



March 22, 2019 | Permalink