Cass Sunstein and Adrian Vermeule’s Technocratic Despotism

At first glance there is perhaps no odder couple in American higher education today than the Harvard law professors Cass R. Sunstein and Adrian Vermeule, whose intellectual partnership straddles the country’s widest political gulf. Sunstein, who was a high-ranking official in the Obama administration, is among the most cited legal scholars of his generation. He is the co-author (with Richard Thaler) of the wildly popular Nudge, which outlines a generally progressive, if eccentric, ideological project called “libertarian paternalism.”

By contrast, Vermeule is a longtime conservative intellectual who clerked for Antonin Scalia, spent the post-9/11 years devising legal apologetics for the expansion of executive power (including torture and ethnic profiling), and was recently appointed by Donald Trump to the Administrative Conference, the federal agency devoted to administration. After converting to Catholicism a few years ago, Vermeule became the most visible defender of an emergent ideology known as Catholic Integralism, which teaches that modern states must be subordinated to the spiritual authority of the Roman Catholic Church.

Sunstein’s and Vermeule’s diametrically opposed political commitments might appear to render their partnership not only implausible but unintelligible. And yet, for over a decade, the two have co-authored long works of legal analysis, most recently Law and Leviathan: Redeeming the Administrative State (Harvard University Press, 2020), in which, not unreasonably, they defend the modern administrative state’s value in securing certain societal goods.

Yet there is also a sinister side to Sunstein and Vermeule’s redemption of administrative power — one that goes well beyond rejecting the libertarian anti-statism so common in American discourse. Law and Leviathan ends up embracing an extreme form of technocracy: rule by social-scientific elites.

Sunstein and Vermeule’s alliance dates to the late 1990s at the University of Chicago, where both were professors of law. Their common ground was then established in the 2008 essay “Conspiracy Theories,” which, like so much of their work, performed the difficult trick of unearthing the most controversial political questions from within the often obscure precincts of administrative law.

The backdrop to the argument was widespread post-9/11 anxiety about the radicalization of social outcasts. Sunstein and Vermeule were especially concerned with klatches of conspiracy theorists who held the American government responsible for the terrorist attacks. The professors’ policy recommendation was nervy. After considering less controversial approaches like disseminating public information, they proposed deploying government agents into civil society to conduct “cognitive infiltration” of “real-space” and “online social networks,” planting “doubts about … theories and stylized facts.” (Vermeule’s own recent descent into conspiracy-theorizing about the 2020 presidential election is an ironic development, and suggests an epistemic problem for technocracy: Experts are not immune to the deceptions of politics.)

How, exactly, would government agents manipulate these groups of citizens? Sunstein and Vermeule’s answer: They would draw on the latest work in cognitive psychology and sociology. Social science could exploit certain mental and social mechanisms to make available a vast new form of power. Such action was ethically justified by the consequentialism common to technocratic thinkers: In this view, a morally responsible political actor was one who was willing to manipulate a population on the basis of his mastery of the complex methods and theories allowing for quantified risk assessment..

This consequentialist approach was even more pronounced in Sunstein and Vermeule’s 2005 essay “Is Capital Punishment Morally Required?” Here they used a straightforward calculus of future lives saved to argue that state executions are “not just permissible” but “morally obligatory.” According to Sunstein and Vermeule, the social beneficence of state executions even held in the case of “juveniles,” because social science had supposedly established that capital punishment had a “powerful … deterrent effect.” The “refusal to impose capital punishment” would “condemn numerous innocent people to death.” Such was the lesson of their “multivariate regression analyses” and “econometric studies.”

That social-scientific elites were in a position to determine moral policy was itself part of Sunstein and Vermeule’s wider argument about state executions. Indeed, they spent a significant portion of their paper speculating that those “who object to capital punishment” in light of a “freestanding moral principle” (as many ordinary opponents of the death penalty do) were exhibiting a thought process that was sub-rational — the “product of … cognitive error” that was unable to conceive of “statistical lives.”

In this way, the essay clearly expressed a central and enduring theme of Sunstein and Vermeule’s collaborations: namely, that a unique form of cognitive and moral authority was embodied in the person of the technocrat. Perhaps not surprisingly, Sunstein and Vermeule consistently argued that such technocrats should be given increasing powers. Those with expert knowledge in the human sciences — like Sunstein and Vermeule — were the major protagonists of political life.

In fact, technocratic predictions about human behavior have been notoriously unable to make good on their epistemic claims. One of the most comprehensive studies assessing expert ability to predict human behavior — Philip Tetlock’s Expert Political Judgment — found that social scientists were unable to outperform moderately informed colleagues from other fields in predicting futures in their own areas of expertise. As Tetlock put it: “People who devoted years of arduous study to a topic were as hard-pressed as colleagues casually dropping in from other fields to affix realistic probabilities to possible futures.”

If Tetlock is right, then technocratic political authority of the kind espoused by Sunstein and Vermeule is premised on a form of knowledge that is unavailable. And if so, their vision of technocratic rule is neither rational or moral.

Sunstein and Vermeule’s most recent work, Law and Leviathan, charts a different course toward rescuing technocratic authority. This latest effort is not primarily centered on cost-benefit analysis, consequentialist arguments, or claims to a predictive knowledge of the mechanisms supposedly determining human behavior. Instead, Sunstein and Vermeule argue that administrative technocrats are to be trusted with broad decision-making powers because they are subject to an internal, rational, and binding law of morality. Throughout the book, they refer to this as “the morality of administrative law.”

This novel bureaucratic morality rests on certain general principles, such as “agencies must follow their own rules” and “retroactive rulemaking is disfavored.” Without meeting these basic standards, bureaucracies would not satisfy the minimum conditions of law. A bureaucracy that continually changed its own rules or refused to follow them willy-nilly would — like one of Kafka’s nightmarish short stories about the law — cease to be intelligible.

In other words, the principles Sunstein and Vermeule defend in Law and Leviathan are not merely moral precepts but “preconditions” for both the intelligibility and “efficacy of administrative law as law.” The result is a kind of midlevel, Kantian deontology for bureaucrats. (Deontology is a school of thought that holds morality consists in dutifully following rules.) The austere morality of rule-following as a precondition for a working bureaucracy is intended to allay critics’ fears of an expanded and potentially abusive administrative state. As they put it, “these specific principles function as guidelines and aspirations for a system that respects and instantiates the rule of law.”

But here the problems begin, for although rules of consistency may be well and good, they are also simply too abstract to orient substantive action. The last four years of American public life have shown us that there is nothing about rules and norms that guarantees moral action. The culture and character of the people within the rules and institutions have everything to do with how the rules are interpreted and followed.

Abstract rules of consistency simply do not offer a livable moral system. What is needed for working bureaucrats to enact policy are thicker political cultures that orient and shape their decision-making. Consistency of rulemaking is too anemic to allay fears about the rule of law precisely because it can be inclusive of so many rival legal regimes. The political cultures that saturate institutions — not free-standing norms — determine their fates.

Consider the vast difference in the ideological cultures Sunstein and Vermeule defend when they are not collaborating. In Nudge, Sunstein and his co-author argue that ordinary people are subjected to frequent irrational biases that make them cognitively incapable of rational self-governance. Thus, what a rational and moral state requires is an expert class of social scientists or “choice architects” who can “nudge” and manipulate citizens toward more rational behavior through the administrative apparatus. For Sunstein, the ultimate goal is a mix of libertarianism and welfarism that in many ways echoes the ideological culture of the Obama presidency. Nudge’s major focuses are on areas of utilitarian well-being like retirement savings, health care, and schooling.

Vermeule accepts Sunstein’s mechanism — the nudge — but his ends are somewhat different. He would put administrative rules at the service of re-Christianizing society. This is what Vermeule dubs “integration from within,” in which “elite administrators” from “the commanding heights of the administrative state” exercise the technocratic knowledge of “behavioral economics” in order to “nudge whole populations in desirable directions.”

For Vermeule, that means abolishing the very liberal culture that bureaucrats in Sunstein’s regime would be seeking to nourish. Liberalism must be eliminated for its inexorable moral depravity: “Yesterday the frontier was divorce, contraception, and abortion; then it became same-sex marriage; today it is transgenderism; tomorrow it may be polygamy, consensual adult incest, or who knows what,” as he put it in First Things. All of this liberal decadence, as he explains elsewhere, might be stopped by the “integral restoration of Christendom” via “executive-type bureaucracies,” which will use social science to impose the Catholic catechism.

The morality of administrators is never enough to create a neutral, trustworthy bureaucracy. The real question is what political culture inhabits the bureaucracy. Ironically, some of the biggest pushback against the technocratic rule proposed by Sunstein and Vermeule comes from within the very political traditions they respectively claim to espouse — liberalism and Catholicism.

Liberal politics in its most influential variants — including John Locke, Immanuel Kant, and J.S. Mill — places a high value on individual autonomy and self-governance as central goals of political life. But there is a deep conflict between technocratic manipulation of populations and the goal of liberal individual agency, independence, and self-governance. This tension is not merely academic but translates into very real conflicts over individual rights and how public policy should be formed. From this perspective, it is not at all surprising to learn that Sunstein’s participation in the Obama administration spurred conspiracy theories that he was carrying out cognitive infiltration and other manipulation that imperiled civil liberties. Sunstein’s technocratic commitments are, in fact, not easily reconcilable with mainstream liberal values.

Similarly, Vermeule’s version of Catholicism is in tension with the church’s own teaching. Catholic theology is a form of ethical humanism that insists human beings are made in the imago Dei (image of God) and therefore are not to be treated as a manipulable means to social utility. For this reason, Catholic social teaching has consistently and staunchly rejected consequentialist ethics that subordinate individual dignity to the sort of cost-benefit analysis that so frequently appears in Sunstein and Vermeule’s work. Indeed, in the case of state executions, the Catholic Church is a critic of not only Sunstein and Vermeule’s reasoning but also their defense of capital punishment itself. (Since converting to Catholicism, Vermeule has cooled on his commitment to capital punishment.)

At the heart of Sunstein and Vermeule’s flawed defense of technocracy is the failure to see that this form of politics is not simply a neutral tool for enacting vastly different ideological programs. Technocracy is instead a highly tendentious way to organize society around very specific conceptions of authority, knowledge, rationality, and power.

Indeed, technocracy today is in a state of crisis. Technocratic rule not only orchestrated a “science” of economy that helped generate rampant inequality and the crises of 2008, it also offered the highly unpopular bailout that was the response. Likewise, technocrats are largely responsible for the following: a conception of electoral politics in America (as a gamified predictions market); the global wars in the Middle East (premised on supposed expert knowledge of regime change); the militarization of police forces (under the sign of a supposed science of crime-fighting).

And yet despite all this — as evidenced in Sunstein and Vermeule’s high-profile, cross-ideological collaborations — technocratic thinking continues to flourish in American universities. Technocracy’s dominance in mainstream social theory is in fact partly an effect of the retreat of the humanities. As critics both inside and outside the university continue to ask humanists to justify the “value” of a liberal-arts education, funding streams are diverted to those whose approach to the knowledge of human behavior is more putatively practical and scientific.

Technocracy flourishes in traditionally humanistic departments like law because its advocates are able to borrow the prestige of the STEM disciplines to bolster their own authority. Claims to a science of human life have in this way helped generate well-funded and ultra-prestigious clusters of technocratic intellectual authorities atop which sit figures like Sunstein and Vermeule, called upon by American presidents. But technocrats, for all their (often spurious) methodological wizardry, cannot easily supplant the cultural and historical modes of explanation of humanists, nor humanists’ respect for the knowledge and agency of ordinary people. Far from being morally and rationally superior, technocracy may be a significant contributor to our inability to properly deliberate upon our political problems. And if so, then the one place where Sunstein and Vermeule have managed such persistent agreement is, in fact, an area of shared and devastating blindness.