Down with the administrative state

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You may not be interested in administrative law, but administrative law is interested in you. Administrative law is unrecognized by the Constitution, but, according to Columbia Law School Professor Philip Hamburger, it “has become the government’s primary mode of controlling Americans.” He observes that “administrative law has avoided much rancor because its burdens have been felt mostly by corporations.” This is where you come in: “Increasingly, however, administrative law has extended its reach to individuals. The entire society therefore now has opportunities to feel its hard edge.”

Professor Hamburger’s assessment of the proliferation of administrative law may be an understatement. Formal administrative law — the regulations promulgated by the alphabet soup of federal agencies — dwarfs the laws enacted by Congress. To take one vivid example from the front pages of the news in the Age of Obama, the Affordable Care Act (a/k/a Obamacare) runs for 2,800 pages. Democratic House majority leader Nancy Pelosi famously predicted that we would have to pass the bill to find out what was in it. Pelosi was right in more ways than one. By one count published last year, the regulations implementing the act have consumed 10,000 closely printed pages of the Federal Register, at 30 times the length (in words) of the law passed by Congress.

I wrote about the inconsistency of administrative law with what we understand to be our constitutional system in “Crisis of the administrative state.” Searching around online for additional sources of learning on the subject, I happened to discover a listing for Professor Hamburger’s then forthcoming book, Is Administrative Law Unlawful?

Professor Hamburgers’s book has now been reviewed both in the Wall Street Journal (behind the Journal’s subscription paywall) and the Weekly Standard. I reviewed the book for the August 11 issue of National Review. My NR review appears online as “A new old regime.” See also the essay on the book by Boston University School of Law Professor Gary Lawson forthcoming in the Texas Law Review, “The return of the king.”

Professor Hamburger demonstrates the regressive nature of the Progressive project. He explains and vindicates the original project of the Constitution in erecting barriers to the exercise of absolute power. As Barack Obama brings the crisis of the administrative state to full boil, attention must be paid.

Professor Hamburger gave the keynote speech this past Friday at the George Mason University Law School’s Law and Economics Center program on administrative law (videos of the program are now posted here). Professor Hamburgers’s keynote speech summarizes the themes of his book in 10 points. His speech is posted here and below.

Professor Hamburger’s speech takes up the first part of the video. I watched the speech live online on Friday and thought Professor Hamburger was on fire in these remarks. Following his speech, he was questioned by senior DC Circuit Judge Douglas Ginsburg. All together the video runs 47 minutes, but Professor Hamburger’s speech takes up only the first half or so. If you have any interest in the subject, please check it out.

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