But more recently, America created new institutions—namely the alphabet soup of federal agencies that constitute the “administrative state,” from the Federal Trade Commission to the Consumer Financial Protection Bureau—to make rules or decide disputes much more swiftly and unilaterally. These new institutions embody aims quite different from those of the Founders: less democratic accountability and more technocratic authority, among other things. And the creators of these new institutions succeeded. Today the main engine of federal lawmaking is the administrative state, not Congress.

Justice Thomas and other judges and scholars have grown increasingly vocal in challenging the administrative state’s constitutional legitimacy. They question the statutes and judicial precedents that undergird the administrative state. In court-made doctrines of judicial “deference” to agencies’ legal interpretations, these jurists see abdication of the Constitution’s “judicial power.” In old statutes giving some agencies substantial independence from presidential control, they see violations of the Constitution’s grant of “executive power” to the president alone. And in old statutes empowering agencies to regulate with minimal limits, they see violations of the Constitution’s vesting of “legislative powers” in the Congress alone. All of these, they argue, undermine republican government and the rule of law.

Cass R. Sunstein and Adrian Vermeule reject that position in “Law & Leviathan: Redeeming the Administrative State.” Mr. Sunstein was President Obama’s White House regulatory coordinator and is perhaps the leading regulatory thinker in Democratic policy-making circles. Mr. Vermeule is an intellectual leader for a rising generation of conservatives who demand a much more explicitly paternalistic and moralistic constitutionalism. While the two Harvard Law professors surely disagree on many things, they both believe that the administrative state doesn’t undermine the rule of law but exemplifies it.

Drawing inspiration from “The Morality of Law” (1964), a major work of legal philosophy by Lon Fuller, they argue that “American administrative law has its own internal morality,” which “embraces many of the concerns and objections of those who are deeply skeptical of the administrative state” and which ultimately serves to “both empower and constrain the administrative state.”

Fuller contrasted administrative law’s morality with eight ways in which policy makers can fail. The “first and most obvious” of these was a failure to make rules at all (“so that every issue must be decided on an ad hoc basis”); the others included “a failure to make rules understandable” and “introducing such frequent changes in the rules that the subject cannot orient his actions by them.” While acknowledging that Fuller’s approach has its limits, Messrs. Sunstein and Vermeule identify similar principles animating the Supreme Court’s decisions governing agency action.

Take, for example, their account of the Supreme Court’s rule that an agency must follow its own rules—the doctrine of Arizona Grocery v. Atchison, Topeka & Santa Fe (1932). This rule is “foundational” for limiting agency discretion, they write, yet “remarkably, the US Supreme Court has never clarified” the actual legal basis for such a standard, and it is not clear, the authors insist, that any such statutory basis exists. In the absence of such a basis in written law, Messrs. Sunstein and Vermeule see Arizona Grocery as exemplifying Fuller’s natural moral principle of “congruence between the rules as announced and their actual administration.”

Similarly, in the court’s increasing tendency to give more deference to agencies’ longstanding legal interpretations and less deference to agencies’ novel or inconsistent ones, Messrs. Sunstein and Vermeule see Fuller’s moral principle against “frequent changes in rules.” These doctrines seem to reflect judges’ own prudential view rather than the more concrete foundation of, say, the Administrative Procedure Act of 1946, which set the basic rules for agency process and judicial review. But this absence of hard statutory foundation is, for Messrs. Sunstein and Vermeule, evidence of the natural, though invisible, gravitational pull of administrative law’s morality.

The authors freely admit that the administrative state is not perfect. But, they contend, it is far better than its critics allow. And administrative law’s morality helps to “legitimate the administrative state,” not just “as arbitrary command but as law.”

“Law & Leviathan” makes a strong case for the administrative state as a “lawful” state. But what kind of law is it full of? Again, Congress was built to produce laws through deliberation, negotiation and compromise; those laws can then be changed only by the same laborious process. Administrative agencies, built quite differently, produce laws much more swiftly and unilaterally—and those laws can be remade or unmade just as swiftly and unilaterally by the next administration. The administrative state might govern us by a rule of law, but its rule is much less moderate, and much less steady, than the rule envisioned by the Founders.

When governance becomes a matter of administrative assertion rather than legislative deliberation, politics becomes a matter of power rather than persuasion. The administrative state demoralizes citizens, in both senses of the word.

This article first appeared in the September 24, 2020, print edition as ‘Self-Government Minus the Self.