Is administrative law unlawful? A word from the author

Hamburger29 Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He is a distinguished scholar of legal history and the author, most recently, of Is Administrative Law Unlawful? It is the most important book I have read in a long time.

I think this will be the first post in a series that will feature the book. Here I have invited Professor Hamburger to preview the book for Power Line readers and he has graciously obliged. Professor Hamburger writes:

Is Administrative Law Unlawful? This is the title of my new book, and I am grateful to Scott Johnson and Power Line for allowing me to preview its thesis: that administrative power revives absolute power.

Administrative power is increasingly pervasive. Presidents come and presidents go, and each has extended this power, until by now administrative rules outnumber statutes.
But there is something off about administrative governance. It feels like off-road driving. The Constitution generally authorizes two avenues of binding power: acts of Congress and judicial acts. The executive, however, prefers to drive off road, not through statutes and judicial acts, but along other, administrative paths. For those in the driver’s seat, this off-road driving is exhilarating, but for the rest of us, it is a little unnerving.

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Administrative law is commonly defended as a new sort of power–a modern power that developed mostly in the twentieth century to deal with the complexity of modern society. And, at first glance, there is some truth to this story.

The federal government began to exercise administrative power only in the late nineteenth century and gradually made it a central mode of governance during the twentieth century. For example, it expanded administrative regulation in the 1930s and again in the era since the 1970s. Administrative law thus seems to enjoy legitimacy as a modern response to modern society.

Sociologically, the message is one of modernity and necessity–that administrative law is a novel type of power, which is needed to handle the complexity of an advancing society. It thus is anti-modern and Quixotic to resist this power.

Constitutionally, the message is that administrative law developed after the adoption of the Constitution. Administrative power thus (allegedly) could not have been anticipated by the Constitution. From this perspective, although this sort of power is not constitutionally authorized, neither is it constitutionally barred. It therefore (supposedly) can be lawful as a necessary and modern addition.

Such is the conventional history of administrative law. And it is a reassuring story, if you believe it.

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In reality, administrative power has a much older and darker history. Far from a novel and modern response to modernity, it revives what used to be called prerogative or absolute power. Put more concretely, it revives extralegal power. It thus is exactly what constitutional law developed in order to prohibit.

Up through the seventeenth century, English kings repeatedly sought to govern their subjects through extralegal edicts. As early as the Middle Ages, English kings were expected to rule through the law–through acts of Parliament and through the acts of the law courts. Far from rejecting rule through the law, monarchs generally liked the legitimacy of this regular mode of governance.

At the same time, however, kings often had difficulty securing the statutes they wanted from Parliament. They therefore often sought to rule not through law, but extralegally, through binding proclamations, regulations, or decrees. They also frequently attempted to adjudicate not through the law courts, but through prerogative tribunals, such as the king’s council, the Star Chamber, and various commissions.

This power exercised not through law, but through other edicts, lacked the legitimacy of law, and kings and their lawyers therefore defended it as an alternative mode of governance. In particular, they increasingly justified it as a prerogative or absolute power. Of course, this extralegal power was the personal power of a king, not the bureaucratic power of a state, and it therefore was not yet administrative, but otherwise this prerogative power was little different from contemporary administrative power.

This matters because constitutional law developed precisely to preclude any such extralegal power. Whether prerogative or administrative, extralegal power came to be recognized as profoundly unconstitutional.

Already in the fourteenth century, when English kings questioned individuals in the king’s council (what we would call administrative adjudication), Parliament in 1354 and 1368 enacted due process statutes–requiring the king to act through the due process of law. When James I attempted to make law extralegally through his proclamations (what we would call executive orders or administrative rules), the judges responded in 1610 with an opinion that these binding edicts were unlawful and void. When James I demanded judicial deference to prerogative interpretations of statutes (what we would call deference to administrative interpretations), the judges refused.

Most profoundly, the English defeated absolute prerogative power by developing ideas of constitutional law. The English constitution (although allegedly lost in the mists of time) was said to be the source of all government power, and it was said to place legislative power in the legislature and judicial power in the courts. The constitution thereby made clear that there could be no extralegal or absolute power.

Americans reenforced this rejection of absolutism. Americans knew the English experience with absolute power, and they feared any recurrence of it in America. They therefore framed the U.S. Constitution to bar any version of this power.

Most prominently, the U.S. Constitution precludes extralegal power by placing legislative powers in Congress and judicial power in the courts. And to prevent Congress from subdelegating the legislative powers to prerogative or administrative bodies, the Constitution emphasizes that “All legislative Powers herein granted” are vested in Congress. If all legislative powers are in Congress, they cannot be in any prerogative or administrative agency.

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This is not the place for a full history of absolute power. Nor is it possible here to explain all of the ways that it is unconstitutional. For that you should read Is Administrative Law Unlawful? But I hope this brief summary is at least suggestive as to how administrative power revives absolute power.

Put simply, extralegal power is an ancient and familiar problem. During the past thousand years, there has been a repeated ebb and flow of extralegal absolutism on the one side, and of law on the other. There always have been pressures for the absolutism, and law only sometimes has been able to resist. Administrative power thus cannot be assumed to be a modern necessity. More clearly, it is a recurring threat—a contemporary version of a danger inherent in human nature and the temptations of power.

This matters for constitutional purposes because it is the foundation for recognizing that the U.S. Constitution barred extralegal power. In the past it was called prerogative, and nowadays it is called administrative, but either way, extralegal power was something that the Constitution prohibited.

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