Is Schmittian Administrative Law Inevitable?
In defending his Schmittian theory of administrative law, Vermeule takes aim at legal scholars such as David Dyzenhaus who “praise the rule of law and aspire to extend law’s empire to encompass even emergency policymaking by the executive.”[10] The aspiration to apply administrative law in emergencies is “hopelessly utopian,” Vermeule argues, because Congress and the courts lack the institutional resolve necessary to subject the Executive Branch to the “thick” rule of law.[11] Although Vermeule concedes that “one could imagine a system of administrative law that is minimally Schmittian or even not Schmittian at all,”[12] he contends that such a system is not feasible in practice because Congress will never agree to close the APA’s procedural loopholes and because courts will inevitably dial down the APA’s flexible standards to maximize executive discretion in emergencies.[13] For these reasons, “[t]he exception cannot, realistically, be banished from administrative law; exceptions are
