As Figure 3 illustrates, the President—as the head of the Executive Branch—oversees the work of the Officers of the United States who staff Executive Branch agencies. Those Officers of the United States then, in turn, supervise the work of Inferior Officers. Should the President conclude that an individual working within an Executive Branch agency does not contain sufficient virtue to effectuate their duties, the President has the authority (absent putative limitations, such as good-cause removal protections or a purporting to make an agency “independent” of the Executive Branch) to remove that individual from office.
As also illustrated in Figure 3, the Senate can supervise Officers of the United States by exercising its impeachment power. And because the Senate is (hopefully) staffed by virtuous individuals, it can be presumed that Senators will exercise their impeachment authority by considering an impeached officer’s character instead of unadulterated political passion.
To be sure, the Constitution vests the House with the “sole Power of Impeachment” and the Senate with “the sole Power to try all Impeachments.” Thus, the House—the federal body closest to the people—is charged with accusing an officer of wrongdoing. But it is the more level-headed (and more politically insulated) Senate that is trusted to stand “between an individual accused and the representatives of the people, his accusers.” As Hamilton asked, “[w]here else than in the Senate could have been found a tribunal sufficiently dignified” that it could be trusted with the power of trying impeachments?
* * *
In sum, formalists, who call for a rigid application of the Constitution’s separation-of-powers principles, can readily embrace applying virtue ethics to the administrative state. Although formalists might be hesitant to permit federal judges to incorporate moral arguments into their decisionmaking processes, administrative officials—whom formalists recognize as exercising executive discretion—are constitutionally distinct. Virtue ethics, consistent with the original Constitution’s presumptions, offers formalists an attractive and readymade lens through which administrative discretion can be channeled.
B. Functionalism
In contrast to formalists, functionalists view the Constitution’s separation-of-powers principles in less rigid terms. Functionalists hold “that structural disputes should be resolved not in terms of fixed rules but rather in light of an evolving standard designed to advance the ultimate purposes of a system of separation of powers.” For this reason, “the functional approach” can be understood as “adopt[ing] a consequentialist theory of justification” because the functionalist’s “task . . . is to judge institutional arrangements in terms of their contribution toward attaining certain ends.”
Like formalism’s relationship with deontology, functionalism’s relationship with consequentialism offers another example of moral philosophy’s influence on modern administrative law. But this additional influence of consequentialism in administrative law will not now be stressed. Instead, Part II.B will offer a few examples of the functionalist conception of the separation of powers and explain that, although functionalism may be influenced by consequentialism, functionalists can readily embrace virtue ethics.
The ability of functionalists to embrace virtue ethics stems from the fact that functionalists already contend that their conception of the separation of powers should be paired with a requirement that administrative officials exercise administrative power in accordance with the officials’ professional expertise. And that technocratic focus on administrative officials’ professional expertise opens the door for functionalists to consider officials’ character (i.e., virtue) more generally.
1. Examples of Functionalism
Modern administrative agencies wield enormous power. For many functionalists, this is a benefit of the administrative state, not a bug. These theorists contend that because powerful private entities exercise consolidated power in ways that can be detrimental to society, the federal government must counterbalance those powerful private interests by consolidating government power into administrative agencies.
Of course, a successful consolidation of power into administrative agencies can only be accomplished if one is willing to apply the Constitution’s separation-of-powers principles with less rigor than a formalist would. In light of these relaxed principles, how does the functionalist ensure that administrative officials do not abuse the consolidated power they are entrusted with? One common proposal is to insulate administrative officials from politics so that they can better make decisions in accordance with professional expertise. The thinking behind that proposal, which “has been around at least since the beginnings of the Progressive Era,” is that political “independence . . . promote[s] disinterested professionalism (because a group of tenured officials will presumably be less vulnerable to special-interest and presidential influence).”
Many functionalists are “living constitutionalists,” which is to say they maintain that the Constitution does not “rest[] . . . in any static meaning it might have had in a world that is dead and gone, but” instead outlines “great principles” that can be “adapt[ed] . . . to cope with current problems and current needs.” Under a living constitutionalism framework, the Constitution’s original conception of separation of powers can be adapted and reapplied within agencies themselves. For example, by insulating administrative law judges from the President’s political control (in a way that mimics how Article III judges are insulated from the President and Congress), administrative law judges can better adjudicate cases in accordance with their professional expertise.
As one example of this view, consider President Wilson. Wilson, who was a founder of the modern administrative state, contended that the Constitution should be interpreted as a “living constitution.” Writing in 1913, he argued that “laws” must be continually “adjusted . . . to the facts” of the present age. At the dawn of the twentieth century, this meant abandoning an original understanding of the Constitution’s separation-of-powers principles in order to better address the complex issues of the day—which included concentrations of power in monopolistic businesses. To advance his argument, Wilson analogized to the scientific work of Isaac Newton and Charles Darwin. While Wilson believed that “the Constitution of the United States had been made under the dominion of the Newtonian Theory,” Wilson thought it would be better to rearrange the federal government so that it was responsive to the laws of “Darwin, not . . . Newton.”
As Wilson saw it, the Constitution was designed originally so that “Congress, the Judiciary, and the President” would interact with one another’s gravitational forces “as a sort of imitation of the solar system.” And it was because “[t]he Constitution was founded on the law of gravitation” of the sort described by Newton that the Framers “constructed a government as they would have constructed an orrery.” But in Wilson’s view, modern government was better understood as a “living thing,” which was to be governed not by the Newtonian “theory of the universe, but under the [Darwinian] theory of organic life.” Wilson thus argued that “[n]o living thing” could “have its organs offset against each other.” “On the contrary,” a living thing’s “life is dependent upon . . . quick co-operation” of its component parts. Thus, because “[l]iving political constitutions must be Darwinian in structure and in practice,” Wilson concluded that the Constitution’s initial system of checks and balances—which pitted three distinct federal branches against one another—should be abandoned. In its place would be administrative agencies that combined all three powers of the federal government.
A generation later, functionalist proponents of administrative power in the New Deal Era were, like Wilson, quite open about their desire to relax the Constitution’s separation-of-powers principles. Consider James Landis, one of President Roosevelt’s chief architects for shaping the New Deal’s administrative apparatus. Landis observed that “the administrative process springs from the inadequacy of a simple tripartite form of government to deal with modern problems.”
For Landis, the Constitution’s rigid separation of legislative, executive, and judicial power resulted in an inefficient federal government that was unfit for the modern age. To make government more efficient, the federal government’s legislative, executive, and judicial power had to be consolidated into single entities. Those single entities would be administrative agencies “[e]ntrusted” with the authority to develop “administrative law” by engaging in “[r]ule-making, enforcement, and the disposition of competing claims.”
In other words, functionalists like Landis understand “administrative” power as a consolidation of legislative (“[r]ule-making”), executive (“enforcement”), and judicial (“disposition of competing claims”) powers. Formalists like Hamburger would seem to agree with that definition of “administrative” power. But while formalists maintain that such consolidated power is unconstitutional (requiring formalists to strip administrative officials’ power down, through tools such as the nondelegation doctrine, to exercises of executive power alone), functionalists believe that consolidated power is a critical aspect of modern government that need not fit entirely within any one of the federal government’s three branches.
As the above-quoted selections from Wilson and Landis demonstrate, functionalists are often clear in explaining their desire to relax the Constitution’s rigid separation-of-powers principles. But for functionalists, relaxing those principles is only the first of two important steps. The second step is to develop substitute safeguards that can alleviate the risk that administrative officials would misuse the consolidated power that they are entrusted to wield. As Wilson put it, “[i]f we are to put in new boilers and to mend the fires which drive our governmental machinery, we must not leave the old wheels and joints and valves and bands to creak and buzz and clatter.” Instead, “[w]e must put in new running parts.”
One of the new “running parts,” to use Wilson’s terminology, is the development of a politically insulated and “technically schooled civil service” that would prove “indispensable” to the reimagined federal government. According to Wilson, such civil servants are to receive “special schooling” and are to be “drilled, after appointment, into a perfected organization” that exercises “characteristic discipline.”
Like Wilson, Landis thought it “importan[t]” to “mak[e] the administrative agency independent” from political controls so that administrators could develop the type of “professionalism” that is slowly developed from an administrator’s daily work. Indeed, Landis warned that through “a judicious selection of personnel, discrimination in promotions, a shifting of responsibilities,” politically accountable agency heads could interfere with a civil servant’s “professional approach to . . . regulatory problems.” Administrative professionals could therefore “[a]ct[] as a check that substitutes for the obsolete checks of the Madisonian separation of powers.” Put differently, “even if the administrative state has slipped off the traditional constraints of the separation of powers,” the requirement that administrators act with “professionalism” could serve as a “substitute safeguard[]” that acts as a “constraint[] against official abuses.”
Modern scholars, like Wilson and Landis, have argued in favor of developing a professionalized class of civil servants insulated from presidential politics. Indeed, as one scholar put it, one of “the elements that have made” the President’s political control over administrative decisionmaking “acceptable . . . to much of the academic community” is “the commitment[] . . . to a professionalized, unusually transparent and apolitical administration.”
Consider Neal Katyal, who contends that because the modern “executive . . . subsumes much of the tripartite structure of government,” the Constitution’s original “concept[ion] of ‘legislature v[ersus] executive checks’ and balances must be updated to contemplate second-best ‘executive v[ersus] executive’ divisions.” Channeling Wilson and Landis, Katyal suggests that one of the “second-best executive v[ersus] executive divisions” is “a system of experienced professionals who feel that they can challenge political decision-making” of the President because they are part of a “civil service” that is “not beholden to any particular administration.” Because these professionalized civil servants “have longer time horizons” than the President, they can act as an internal check against a President’s short-term incentives. In sum, Katyal argues that civil servants are “situated to protect . . . the nation’s long-term interests” against the political passions of the day.
Sunstein offers a similar argument, which stresses administrative officials’ ability to make decisions based on their substantive expertise rather than presidential politics. As Sunstein observes, the administrative state is made up of “numerous specialists, many of whom have spent years or even decades engaged in concentrated work on particular subjects.” Although these specialists “work for political appointees, . . . they are not themselves political.” For Sunstein, then, these agency specialists are among the “most knowledgeable” officials in government. He thus concludes that the President’s reliance on a professionalized set of apolitical experts serves as “a central and insufficiently appreciated aspect of the real world of checks and balances.” And although the “informational advantage” of this “real world of checks and balances” “could not easily have been anticipated by the founding generation,” the information advantage favoring the apolitical administrative professionals “continues to grow every year.”
As another example, consider Emerson, who proposes “a Progressive theory of the administrative state” that draws upon the work of “American Progressives like . . . Woodrow Wilson . . . who first advocated expansive national regulatory power in the United States.” Emerson’s Progressive theory of the administrative state “incorporates” a Landisian focus on professionalism but “situates” that theory within a Progressive “concept[ion] of the state,” pursuant to which “[a]dministrative agencies play a pivotal role.” In defending his Progressive theory of the administrative state, Emerson explains how his theory “comports with significant aspects of current administrative law,” such as those recognizing that “administrative agencies . . . institutionalize an internal separation of powers.”
Functionalist jurists have also exhibited a belief that administrative officials, who are both insulated from presidential politics and instilled with a sense of professionalism, can be entrusted to wield administrative power. In Free Enterprise Fund v. Public Company Accounting Oversight Board (PCAOB), for example, Justice Breyer explained in a dissenting opinion that the accounting board members in question were “technical professional experts” whose work required them to be insulated from “political influence[s].” In defending his view that the administrative professionals at issue should be permitted to operate free from the President’s removal authority, Justice Breyer cited Wilson and the “need for insulat[ing]” administrative professionals “from political influences.” Moreover, Justice Breyer explained that “the need for administrators with ‘technical competence,’ ‘apolitical expertise,’ and skill in ‘scientific management’ led to the original creation of independent agencies”—entities that can only exist in a world of relaxed separation-of-powers principles. Justice Breyer’s analysis in Free Enterprise was consistent with his larger body of work, within which he has “urged that professional administrators [should] . . . take center stage in regulatory policymaking, . . . with support from a more sophisticated variant of Landis’s defense of technocratic values.”
Finally, consider Justice Kagan. As an academic, then-Professor Kagan was perhaps best known for her work describing “the presidentialization of administration,” which she identified as “the emergence of increased presidential control over administration.” But even in advancing her argument that enhanced presidential supervision of agency action was something that could be embraced, then-Professor Kagan conceded that the President should “hesitat[e] both in acknowledging and asserting presidential authority in areas of administration in which professional knowledge has a particularly significant and needed function.”
On the Supreme Court, Justice Kagan has counseled against adopting a formalist conception—or, to use her words, a “Schoolhouse Rock” conception—of the separation of powers. She believes the formalist conception of the separation of powers to be too “rigid.” She further contends that Congress should be able to “create zones of administrative independence,” and thus be given “wide leeway to limit the President’s removal power in the interest of enhancing independence from politics in regulatory bodies.” To defend that view, Justice Kagan has turned to history, explaining that as “the decades and centuries passed” from the Constitution’s ratification, Congress has “[c]onfront[ed] new economic, technological, and social conditions” that have triggered “new needs for pockets of independence within the federal bureaucracy.” In light of those evolving needs, “Congress decided that effective governance depended on shielding technical or expertise-based functions . . . from political pressure,” and Justice Kagan does not believe it to be the role of courts to second-guess such decisions. In short, Justice Kagan believes that a rigid application of a “civics class version of separation of powers” fails to account for those instances in which government decisionmaking is best handled by professionalized experts who are insulated from at least some political pressures.
2. Making Room for Character More Generally
As illustrated in Part II.A.1 above, functionalists have sought to remedy the dangers posed by concentrating power in administrative officials by arguing in favor of instilling administrative officials with a sense of professional expertise. By drawing upon their professional expertise in an environment of reduced political pressure, administrative officials can be entrusted to exercise government power for the public good—at least, that is the theory.
Whether that theory is correct is immaterial for present purposes. Instead, the narrow point is simply that agency officials’ character is a central feature of functionalists’ defense of the modern administrative state. Put more concretely, it is the professionalized administrator, and not the politico, who the functionalist contends should be trusted to exercise consolidated power in the public’s interest. Virtue ethics, which focuses on character (i.e., virtue) more generally, thus offers a philosophical framework that functionalists can readily incorporate into their existing understanding of administrative law.
Because functionalists already rely on character in their defense of the modern administrative state, incorporating virtue ethics into that defense is relatively straightforward. But this is not to say that functionalists’ incorporation of virtue ethics would be without friction. That is because functionalists currently focus rather narrowly on what Aristotle might understand as technē, which relates to a form of technical knowledge. To focus more broadly on virtue, functionalists must move beyond their narrow focus on developing what might be called “technē-crats,” and focus instead on developing administrators instilled with the virtues—including the virtue of prudence, which would assist administrators in determining how their particular skillset relates to the federal government’s broader purpose, or telos. Put differently, although a skilled technē-crat might know how to best engineer an energy plant to achieve environmental benefits, it is the prudent administrator who knows how such technical skillset fits within society’s broader efforts to pursue the common good. And so, while each separate technē-crat might think that their preferred tool is the best tool for the job, it is the prudent administrator who knows when each tool is called for.
Despite the need to focus on virtues rather than techne alone, functionalists’ existing focus on the latter offers a blueprint for instilling virtue in modern administrators. For example, consider the similarity between one, Wilson’s plan to develop a “perfected” and “discipline[d]” set of civil servants through “special schooling” and “drill[ing],” and two, Aristotle’s instruction concerning the development of virtue. As noted in Part I.C. above, Aristotle explained that the intellectual virtues could be developed through teaching, which would no doubt include the type of “special schooling” proposed by Wilson. Further, Aristotle explained that moral virtue had to be perfected through habit, which could no doubt be developed through regular “drill[ing]” of the type envisioned by Wilson. This similarity between Wilson and Aristotle demonstrates that a focus on instilling administrative officials with a sense of technocratic professionalism could be complemented by a focus on instilling virtue more generally.
In short, functionalists can embrace virtue ethics on the grounds that a professional agency official is not just a technically skilled expert, but a virtuous official. To be sure, a functionalist might contend that, while a narrow focus on professional expertise is appropriate, an examination of an administrative official’s other character traits (such as the official’s prudence and justness) is inappropriate. But defending that argument would require the functionalist to at least first consider virtue ethics’ insights before deciding to reject the several thousand years of thought behind the philosophical perspective. To assist in that consideration, Part III will explore what a virtuous administrative official might look like in practice.
III. Applying Virtue Ethics
Part I of this Article introduced virtue ethics as a philosophical perspective that stands as an alternative to the deontological and consequentialist perspectives that already shape administrative law. Part II then explained how virtue ethics can be embraced by a wide range of scholars and jurists. Part III will now begin the task of incorporating virtue ethics’ insights into administrative law. To do so, Part III will consider how a virtuous agency official might act in accordance with what are commonly referred to as the four cardinal virtues—i.e., prudence, temperance, justice, and courage.
Why focus on the four cardinal virtues? Well, the term “cardinal” is derived from the Latin cardo, or “hinge,” which designates the centrality of the four virtues upon “which swing the gates of life.” Writing in Greek, Aristotle offers twelve virtues in his Nicomachean Ethics—an organizational point that has been critiqued on the grounds that it leaves readers “wondering why [Aristotle] lists just these virtues and not others.” But as Aristotle’s Greek was translated into Latin, thinkers working within the Aristotelian tradition (such as Aquinas) were quick to recognize that all moral virtues can be traced to one of the four cardo virtues. These four virtues thus serve as a natural starting point for incorporating virtue ethics insights into modern administrative law.
One note before we begin: virtuous officials will act differently depending on their roles. For example, a virtuous Attorney General will take different action than a virtuous SEC Commissioner. And virtuous aides to those principals will behave differently yet. This is because each official plays a different role in the federal government’s broader mission. To put it in Aristotelean terms, each official is pursuing a different subordinate end, which is a part of the broader (but still subordinate) end pursued by the entire federal government. Part III thus speaks only of administrative officials in the abstract and explores how an official might exercise whatever degree of legitimate decisionmaking discretion their role affords to them.
A. Prudence
The first of the cardinal virtues is prudence, sometimes referred to as “practical wisdom.” Prudence is the appropriate virtue to start with because it maintains an important relationship with the other three cardinal virtues. Although each of the four cardinal virtues is distinct from the others, prudence plays an overarching function that informs a proper exercise of temperance, justice, and courage. “In other words, none but the prudent man can be just, brave, and temperate.” For this reason, prudence can be thought of as the “mother of all the other cardinal virtues.”
To the modern ear, prudence might bring to mind an overly cautious or even excessively risk-averse actor. But that understanding of prudence is mistaken. Aristotle describes prudence as the “characteristic that is bound up in action, accompanied by reason, and concerned with things good and bad for a human being.” Aquinas followed by explaining that “prudence” concerns “decid[ing] in what manner and by what means man shall obtain the mean of reason in his deeds.” To use more modern terminology, prudence can be thought of as excellence in deciding between multiple means. A prudent actor is thus an actor capable of determining the most appropriate means for achieving a particular goal at a particular time in a particular setting. Prudence is, therefore, an important virtue for an agency official to have because agency officials are regularly tasked with selecting the means for achieving various policy objectives.
More specifically, agency officials are often given the choice to pursue a policy objective through one of at least three means: sub-regulatory guidance, regulatory action, and statutory action. In many instances, all three options are legally available. That means that an agency official will often have to exercise discretion in choosing an appropriate means for achieving a particular end. And prudence can help an agency official exercise that discretion by “decid[ing] in what manner and by what means” to proceed.
The first option available to agency officials—subregulatory guidance—includes acting through channels, such as policy memos, website updates, and opinion letters. Subregulatory guidance cannot be used to alter existing law. Instead, it is typically used to express an administrative agency’s new or elaborated interpretation of existing law. Although subregulatory guidance does not, as a technical manner, create new legal requirements, regulated entities are “often under strong practical pressure to follow” subregulatory guidance. An entity regulated by Agency x, for example, is likely to listen closely (and adjust its behavior accordingly) when Agency x offers a new interpretation of existing law—even if, as a formal matter, the law has not actually changed.
One benefit of subregulatory guidance is that it can be published quickly, without all of the procedural hurdles associated with more formal regulatory action. But the ability to issue new guidance quickly also means that even newer guidance can soon take its place. This can leave regulated parties suffering from a form of regulatory whiplash. A regulated party that changes their conduct in accordance with subregulatory guidance issued by Presidential Administration x, for example, may soon encounter new (conflicting) subregulatory guidance issued by Presidential Administration y. And as each new presidential Administration comes and goes, this game of subregulatory ping-pong can continue.
The second means often available to agency officials is regulatory action. Regulatory action is an umbrella term that includes both rulemakings and adjudications. An advantage of pursuing a policy objective through regulatory action rather than subregulatory guidance is that regulatory action can alter (rather than just interpret) existing regulatory action. A downside of using regulatory action is that it can often take months, if not years, to see it through to completion. And while regulatory actions may be more difficult to retract and replace than subregulatory guidance, it is becoming increasingly common for incoming presidential Administrations to retract and replace regulatory actions issued by their outgoing predecessors. President Biden’s OIRA administrator, Richard L. Revesz, has referred to this phenomenon as “the new rules” of Presidential transitions.
An agency official who determines to pursue a policy objective through regulatory action must also confront a secondary decision: what type of regulatory action should be used? There are at least two options: rulemaking and adjudication, which can be further subdivided into so-called “informal” and “formal” forms. Current administrative law doctrine requires courts to often defer to an agency official’s decision to use one means (i.e., a rulemaking or adjudication) over the other.
Related administrative law doctrine also requires courts to defer to an agency official’s choice to pursue regulatory action through an “interim” final rule rather than a truly final rule. While a truly final rule is often issued after public comment, an agency can issue an interim final rule before soliciting public comment so long as the agency determines that there is “good cause” for forgoing public input. In many instances, courts defer to an agency’s official’s determination that “good cause” exists.
The third means often available to agency officials is statutory action. The federal lawmaking process moves slowly, but it has the benefit of codifying policy into statutes that are less easily changed than either subregulatory or regulatory actions. Of course, agency officials are not formal parties to the federal lawmaking process. The exclusive procedures governing the federal lawmaking process establish that only the President and Congress are to play a formal role in turning policies into federal statutes. But agency officials play an influential (albeit informal) role in the federal lawmaking process.
As Professor Chris Walker explains, “[f]ederal agencies help draft statutes.” Agencies assist with such drafting by both “propos[ing] substantive legislation to Congress that advances agency and Administration objectives, and . . . weigh[ing] in substantively . . . on pending legislation.” Further, “[f]ederal agencies also help draft statutes in the background by providing “technical drafting assistance” on legislation that originates from congressional staffers.” In a very real sense, then, agency officials can decide to pursue policy objectives through statutory action by proposing and editing legislation that is ultimately submitted to the President and Congress for approval.
What do the above-mentioned means of pursuing policy objectives mean for the prudent agency official? The prudent agency official would exhibit an excellence in determining which of the above-mentioned means is the most appropriate for pursuing a particular federal policy. A prudent agency official would know, for example, whether a situation calls for the type of quick-but-easily-reversible action made available through subregulatory guidance, or the type of slow-but-stable action made available by funneling decisions through the federal lawmaking process. Moreover, staffing the administrative state with prudent agency officials would help justify existing administrative law doctrine that calls for courts to defer to an agency official’s decision to pursue a policy objective through one means (e.g., a rulemaking) rather than another (e.g., an adjudication).
Of course, the flipside of recognizing the centrality that prudence plays in justifying the deference courts give to agency officials is that the case for deferring to agency officials is actually undermined in a system in which those officials do not exhibit the virtue of prudence. This could be the situation presented by the modern administrative state, which appears more focused on ensuring that officials make decisions based on technocratic expertise (i.e., techne) rather than the broader framework demanded by the virtue of prudence. And if it is correct that the modern administrative state is indeed staffed with techne-crats that lack prudence, then reorienting administrative law to focus on instilling virtue would call for a change in how officials are selected and trained. But as was explained in Part II.B.2, the transition from a focus on staffing agencies with officials who exhibit techne, to a focus on staffing agencies with officials instilled with virtue more generally, is not insurmountable.
Staffing the administrative state with prudent agency officials would also help alleviate the harms associated with the regulatory whiplash that can occur when new presidential Administrations revoke and replace the policies of their outgoing predecessors. To be sure, elections have consequences, and a prudent agency official will know when it is appropriate to change regulatory direction. But a prudent agency official will also account for the fact that “the mere change of law is of itself prejudicial to the common good . . . .” As Aquinas explains, “human law should never be changed, unless, in some way or other, the common weal be compensated according to the extent of the harm done” by the mere act of changing the law in the first place. A prudent official would account for the harm inherent in changing federal policy.
In addition to Aquinas, the harm presented by too-frequent changes in the administration of government was considered by the Constitution’s Framers. Hamilton, for example, recognized that “every new President” would have the incentive “to promote a change of men to fill the subordinate stations . . . .” And because “[i]t is not generally to be expected, that men will vary and measures remain uniform,” Hamilton feared that regular turnover in the Executive Branch would result in a “disgraceful and ruinous mutability in the administration of the government.”
One constitutionally codified solution to regular turnover in the administration of the government was to make the President eligible for re-election. Doing so helps ensure that “the people, when they see reason to approve of [the President’s] conduct, . . . [may] continue him in [his] station[] in order to prolong the utility of his talents and virtues, and to secure to the government the advantage of permanency in a wise system of administration.” Instilling the virtue of prudence in the administrative officials who act on the President’s behalf can complement that constitutionally-codified solution—which is focused on the Presidency itself.
B. Temperance
A second cardinal virtue is temperance. Temperance is a moral virtue, which means that it helps perfect a human appetite. As Aquinas explains, an “appetite is nothing else than an inclination of a person desirous of a thing towards that thing.” In the case of temperance, the appetite to be perfected includes the sense of appetite associated with alcohol.
An agency official with the virtue of temperance would avoid an excessive and deficient relationship with alcohol. For example, a temperate agency official might enjoy the occasional glass of wine at work outings designed to build comradery among colleagues. At the same time, the temperate agency official would avoid drinking to excess, which might interfere with the official’s ability to fulfill workplace duties excellently.
At first blush, some readers might find a focus on temperance to be intrusive and inappropriate. However, a focus on temperance would not require an intrusive inquiry into agency officials’ off-the-clock drinking habits. Nonetheless, some consideration of an agency official’s relationship with alcohol is entirely appropriate. For example, the familiar expression “sober as a judge” reflects the value of having government officials avoid an excessive attachment to alcohol. We might expect to find the same virtue in, say, our doubly-insulated agency adjudicators.
As it turns out, many federal agency officials are already prohibited from regularly drinking to excess. Consider the National Security Adjudicative Guidelines (“Adjudicative Guidelines”), which “establish[] the single, common adjudicative criteria for . . . initial or continued eligibility for access to classified information or eligibility to hold a sensitive position.” The Adjudicative Guidelines contain an entire section dedicated to alcohol consumption. The Adjudicative Guidelines state, for example, that “[e]xcessive alcohol consumption often leads to the exercise of questionable judgment or the failure to control impulses, and can raise questions about an individual’s reliability and trustworthiness.”
At bottom, temperance helps an agency official better perform their work by perfecting their relationship with alcohol. An imperfect relationship with alcohol (whether it be a relationship of excess or deficiency) can interfere with an agency official’s ability to perform their professional duties, which is a subordinate end that the official must fulfill in pursuit of the federal government’s broader end, as well as the official’s own telos. Temperance is thus correctly understood as a virtue that administrative law should continue to cultivate in agency officials.
C. Justice
A third cardinal virtue, justice, can be understood as giving each person their due. Part III.C will focus on Aristotle’s broadest conception of justice, which can be conceptualized as “justice as lawfulness.”
To fully understand the Aristotelian conception of justice as lawfulness, the modern reader must first recognize that Aristotle’s conception of “law” (in Greek, nomos) is broader than what one might ordinarily think of as “law” today. As the “distinguished Aristotle scholar” Richard Kraut explains, “when Aristotle says that a just person, speaking in the broadest sense, is nomimos, he is attributing to such a person a certain relationship to the laws, norms, and customs generally accepted by some existing community.”
Put differently, for Aristotle, law is more than just the legal requirements that a legislature might codify or that might be found in a judge’s written opinion. Instead, an Aristotelian conception of law is broad enough to encompass custom and norms in addition to statutes and judicial decisions. To place things in Anglo-American legal parlance: one might think of the Aristotelean conception of law as being broad enough to include the “general law,” which, at least prior to Erie Railroad Co. v. Tompkins, was the “body of unwritten law [that] was not derived from any enactment by a single sovereign, but existed by common practice and consent.” It is only with this broader understanding of law in mind that one can fully understand “why Aristotle thinks that justice in its broadest sense can be defined as lawfulness.”
The U.S. Department of Education’s recent efforts to forgive federal student loan debt offers a recent case study for considering how developing an Aristotelian conception of justice in administrative officials could result in changes to existing aspects of administrative law. In September of 2022, the U.S. Secretary for the Department of Education issued “waivers and modifications” to “discharge” student loan debt. The Education Secretary’s decision was soon subject to multiple federal lawsuits. A threshold issue for those lawsuits was whether challengers had legal standing to bring their claim in federal court.
In Garrison v. U.S. Department of Education, for example, the plaintiff argued that the Department of Education’s loan forgiveness plan would result in the plaintiff “fac[ing] immediate tax liability from the state of Indiana” that the plaintiff would not face had the Education Secretary not forgiven his loans. The Education Secretary’s loan forgiveness policy was initially designed so that it would automatically forgive all eligible debt. But in response to the challenge brought in Garrison, the Department of Education took two actions. First, the Department changed its website (i.e., the means that the Department had selected to effectuate its multi-billion-dollar policy) so that borrowers had a new opportunity to opt out of the otherwise automatic loan forgiveness program. Second, the Department took steps to further “effectuate Plaintiff’s clearly stated desire to opt out of the program and not receive . . . automatic cancellation of his federal student loan debt . . . .”
The Department’s decision to intentionally change its loan forgiveness policy appeared to be motivated by a desire to make it more difficult for that policy to be challenged in court. As one scholar explained, the change demonstrated that the government was “making changes to the [loan forgiveness] policy on the fly for the express purpose of blocking lawsuits.” At minimum, that sort of mid-litigation change in policy is inconsistent with existing norms and customs surrounding agency action. Pursuant to those norms and customs, agencies defend their actions in court rather than change their policy on-the-fly to insulate administrative action from judicial review.
A related challenge to the Department of Education’s loan forgiveness plan brought in Nebraska v. Biden offers a second case study. The Nebraska lawsuit concerned injuries stemming from the servicing of Federal Family Education Loans (FFEL). After the lawsuit was filed, the Department of Education changed its loan forgiveness policy in order to exclude FFEL from federal forgiveness. As National Public Radio (NPR) reported, “the U.S. Department of Education . . . quietly changed its guidance around who qualifies” under the “student debt relief plan[,]” which was “a remarkable reversal that will affect the fortunes of many student loan borrowers . . . .” This sudden “reversal in policy[,]” NPR reported, “was likely made out of concern that the private banks that manage old FFEL loans could potentially file lawsuits to stop the debt relief . . . .” Thus, like in Garrison, the change in policy appeared to be motivated by a desire to insulate that policy from judicial review.
As a matter of statutory and constitutional law, the Department of Education may have been well within its right to change its loan forgiveness policy in order to insulate that policy from judicial review. But if one were to consider lawfulness in the broader Aristotelian sense, the Department of Education’s attempts to insulate itself from judicial review are unjust to the extent that those attempts break from the norms and customs, allowing members of the public to seek judicial review of agency action. Put differently, even if the challengers to the loan forgiveness policy had not been owed, as a matter of statutory or constitutional law, the opportunity to challenge that policy in court (contrary to what the Supreme Court ultimately held), the challengers may have been owed that opportunity as a matter of norms and custom. A just agency official would consider what the public is owed as a matter of such norms and customs before taking administrative action that might give the public less than what the public is due.
D. Courage
The fourth and final cardinal virtue is courage, also referred to as fortitude. Courage is situated between the vices of cowardice and recklessness. A courageous firefighter, for example, is able to charge into a burning building—even when the firefighter rightly identifies the danger that might result from doing so. On the other hand, the courageous firefighter also knows when charging into a burning building would be rash and unwarranted.
The current administrative state fails to instill courage in at least two ways. Both ways treat political accountability as a danger that must be avoided, rather than a danger that can offer an opportunity to confront and develop courage. The first way that the current administrative state fails to instill courage concerns the way in which many administrative officials are purportedly insulated from the political accountability brought to bear by the President’s removal authority. Because these administrative officials are insulated from the political removal process, the officials have limited opportunities to confront political dangers, and thus have limited capacities to develop courage.
To be sure, many of the administrative officials who are insulated from the President may still face political dangers presented by Congress. After all, Congress might decide to call a hearing to either take an official to task or reduce an agency’s funding. But that type of congressional oversight (which requires legislators to make potentially contentious appropriations decisions) presumes that Congress will be courageous. And as will be explained below, Congress is starved of its own opportunities to develop political courage—which makes the promise of congressional oversight appear lackluster, if not illusory.
There is reason to think, however, that future administrative officials will have enhanced opportunities to develop courage in the face of political danger. In a series of cases decided over the last decade and a half, the Supreme Court has been making doctrinal changes to existing administrative law that would better assist administrative officials in developing courage in the face of political danger. In particular, the Court has made a series of rulings that have limited (or at least declined to extend) prior precedent that permitted agency officials to remain insulated from the President’s removal authority. Virtue ethics, which gives pride of place to developing the virtue of courage, offers a philosophical framework to structure this type of ongoing change to existing administrative law doctrine.
The second way that the current administrative state fails to instill the virtue of courage is in relation to Congress. Today, Congress is often able to punt politically dangerous questions to agency officials. Congresses can do so because of the lax way in which the Constitution’s nondelegation principle (which constrains Congress’s ability to delegate to others the powers that the Constitution vests in Congress alone) has been enforced.
Under existing nondelegation doctrine precedent, Congress is free to enact open-ended statutes that enable Congress to duck essentially all political accountability relating to unpopular agency action. In recent years, Congress has even sought to duck potential political public resulting from appropriations decisions by delegating to an agency the authority to decide how much funding it needs. By making open-ended delegations, Congress can avoid facing the dangers associated with unpopular agency decisions. What’s worse, Congress can secure political praise by offering agency-related “constituent services”—a euphemism for legislators asking administrative officials to utilize their broad delegations of power to secure some good for legislators’ favored parties.
Reorienting administrative law to focus on instilling virtue would provide a moral foundation for more regularly requiring Congress to make politically dangerous decisions themselves—rather than punting those decisions to agencies. As a doctrinal matter, this change could be accomplished by reinvigorating the Constitution’s nondelegation principle, which would require a closer adherence to the Constitution’s initial design for lawmaking. That initial design called for politically dangerous decisions to be made through a particular lawmaking procedure requiring the House, Senate, and President to publicly approve (or reject) various policy proposals. To influence policy within that system, legislators would no longer be able to rely on privately lobbying their contacts in administrative agencies. Instead, legislators (and the President) would have to again take public stands for or against various policies, thereby exposing themselves to the political dangers inherent in doing so.
To be sure, legislators and the President might be initially fearful of having to make politically dangerous decisions. But like the courageous firefighter who routinely faces the dangers posed by burning buildings, repeated confrontations with political danger can present opportunities to develop the virtue of courage. And while there might be some initial discomfort in developing such virtue, the payoff would be significant. This is in part because instilling courage in legislators could result in instilling courage in agency officials.
How so? Well, a reinvigoration of the nondelegation principle would require legislators to involve themselves more intimately with the workings of agency officials—after all, Congress (and the President, in the President’s legislative capacity) would be on the hook for approving regulatory actions and budgets. That sort of “closer working relationship between the bureaucracy and the legislator” could encourage agency officials to “be more courageous” in their own actions, since those actions would more obviously have the backing of Congress and the President. An administrative state staffed with both courageous agency officials and legislators would be better positioned to more excellently address the people’s problems—i.e., would better positioned to be more excellently carry out the officials’ and legislators’ governmental functions, which are component parts of the federal government’s broader telos.
Conclusion
Administrative law has developed to incorporate insights from two philosophical perspectives: deontology and consequentialism. This Article has proposed that administrative law further develop to incorporate insights from a third perspective: virtue ethics. Incorporating virtue ethics into administrative law is a task that a wide range of scholars and jurists can embrace, regardless of their jurisprudential commitments.
This Article has taken the initial step toward incorporating virtue ethics into administrative law. That effort, which is designed to kick off a scholarly dialogue concerning the intersection of virtue ethics and administrative law, explored how a virtuous agency official might act in accordance with the cardinal virtues of prudence, temperance, justice, and courage. By focusing on the cardinal virtues, this Article has demonstrated that virtue ethics offers valuable insights that have previously gone unexamined, but which both transform and reinforce our understanding of administrative law in important ways.
