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Supreme Court Justice Stephen Breyer's legacy in administrative law

MICHEL MARTIN, HOST:

Justice Stephen Breyer's decision to retire from the Supreme Court has led to the usual frenzy over who his replacement might be. But it's also worth noting how he shaped important areas of the law - one of them, administrative law. Now, that might sound like a boring, dry topic, but it actually really matters. Administrative agencies like the Environmental Protection Agency or the Centers for Disease Control play an important role in determining policy in key areas of life, like how much of a certain chemical is safe enough to have in drinking water or implementing vaccine requirements.

But over the last few years, these issues have become yet another area of contention on the court. Some conservatives say this is another arena of government overreach, while many liberals think these agencies provide important expertise on critical issues. That fight is going to continue but without a key expert in the field, Justice Breyer. He literally wrote the book on administrative law, which is used on law school campuses across the country. So we want to focus on that part of his legacy.

For that, we've called Adrian Vermeule. He is a constitutional law professor at Harvard University School of Law, and he is one of the co-authors of the book "Administrative Law And Regulatory Policy," along with Justice Breyer, and he is with us now. Professor Vermeule, welcome. Thank you so much for joining us.

ADRIAN VERMEULE: Thank you for having me, Michel. It's great to be with you.

MARTIN: First, would you explain to those of us who aren't able to take your class how administrative law affects our daily lives as briefly as you can?

VERMEULE: In some ways, administrative law has become more important to the government and governance of the United States than constitutional law. It's the law that creates and structures the administrative agencies. So this is a massive apparatus that does so much to improve and regulate American life, from the roads we ride on, to the food we eat, to the drugs we take, to our air and water. So it's absolutely central to all our lives, whether we know it or not.

MARTIN: Would you talk a little more about Justice Breyer's philosophy in deciding matters involving federal agencies?

VERMEULE: Yes. He has a book, an important book he wrote around 2005. I believe it's called "Active Liberty." And the idea is that we have not only negative liberty from things government wants to do to us, but we have a kind of positive liberty, which is the liberty as a nation to come together and act affirmatively for the common good. And one way we do that is through government. And government helps us as a community and as individuals to carry out plans that we want to carry out and to live healthy, safe, fruitful lives.

MARTIN: There is a conservative push to reform administrative law. Last year, there was legislation introduced in the House of Representatives that would require congressional approval of new agency regulations before they're implemented. I mean, I think people are familiar with the kind of conservative-progressive dynamic around the big sort of cultural issues, right? How would you describe the kind of state of play in this area, which is so important but receives so much less scrutiny from the general public?

VERMEULE: You're right. In some ways, this is more important than the fights over some of the social issues. So the current dynamic is this. There is a conservative legal movement that, for some decades now, has been mainly focused, in my view, on rolling back the administrative state. And the philosophy under which they proceed is called originalism. And the claim is that the original Constitution did not allow for an administrative state. Some of the more radical versions of this think that the - all the federal agencies are constitutionally suspect, or at least that they can't make rules to bind businesses or regulate clean air, clean water, whatever.

MARTIN: How would you describe the other side of this argument?

VERMEULE: Legislators don't have time. They don't have information. They have many things they have to deal with in a day, and they simply can't be themselves writing rules or even giving very detailed specification for policy about complicated matters to do with the internet, to do with toxic substances regulation, to do with 19 other things. And that's always been one of the main arguments.

But I would add another main argument as well, Michel, which is, I think that the originalist critique of the administrative state is invented. That is, there is lately a large body of work that has come to show that the original Constitution wasn't particularly suspicious of delegation to administrative agencies.

There's a pair of law professors at the University of Michigan who've written a terribly important paper on this. And it seems that from the very first Congress onward, we always had an active administrative state trying to make Americans' lives better and promote the general welfare. It's just that the nation as a whole was smaller, and the government as a whole was smaller. But the legal theory was not different than it is today.

MARTIN: One of these administrative law issues that might have resonated with the public was the Biden administration's effort to require that large businesses require a COVID-19 vaccination or a robust testing regimen for employees. These were large businesses. And the majority said that this was an overreach and that Justice Breyer dissented in his opinion, arguing that the agency overseeing workplace safety has the appropriate expertise in matters concerning workplace safety and that courts should not intervene. How would you describe the way that whole process played out? And does it foretell something about how these issues are going to play out going forward?

VERMEULE: It's a very interesting decision because there are clearly three different groups on the court right now. There is the group of Roberts, Barrett and Kavanaugh, who I think are worried about the administrative state, but they are not as sweeping in their critique. There's a second group of conservatives - Gorsuch, Alito and Thomas - whose critique is very sweeping, indeed, and if it were to become the law I think might change an unimaginable amount of our kind of public life.

There's a third group - Kagan, Sotomayor and Breyer - who think that this whole approach is a kind of departure from the historic enterprise of American government to make people's lives better. And Breyer's dissent in this case, the OSHA case, is - I think it's one of his best. And I'm glad it came at the end of his career. It's a kind of valedictory.

MARTIN: That was Adrian Vermeule. He is a professor at Harvard Law School. He's also a member of the Council of the Administrative Conference. But he wants to make clear that he's speaking on his own behalf here and not in behalf of the conference. Professor Vermeule, thank you so much for joining us and sharing this expertise.

VERMEULE: Thank you, Michel. I appreciate it.

(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.