Our administrative law contains, built right into its structure, a series of legal “black holes” and “grey holes” – domains in which statutes, judicial decisions, and institutional practice either explicitly or implicitly exempt the executive from legal constraints. Legal black holes and grey holes are best understood by drawing upon the thought of Carl Schmitt, in particular his account of the relationship between legality and emergencies. In this sense, American administrative law is Schmittian. Moreover, it is inevitably so. Extending legality to eliminate these black and grey holes is impracticable; any aspiration to eliminate the Schmittian elements of our administrative law is utopian.
Responding to Adrian Vermeule, Deference and Due Process