The administrative threat

Researching the constitutionality of the regime of administrative law, I came across a notice early in 2014 that Philip Hamburger’s Is Administrative Law Unlawful? was forthcoming in hardcover from the University of Chicago Press (it’s now available in paperback).

“The audacity of hope” had nothing on the audacity of Hamburger. Indeed, the audacity of Hamburger was a cure for the audacity of hope. The question he posed in the title of the book had long been thought settled, yet it frequently came to mind (my mind, anyway) in the Age of Obama. Every day the headlines brought news of the administration’s rule by executive edict. From the regularization of illegal-immigrant DREAMers, to the rewriting of Obamacare and of federal drug laws, to the imposition of onerous environmental laws by agency regulation, the administration exercised executive power to write and rewrite and waive the duly enacted law of the land.

Based on the notice of its forthcoming publication, I brought the book to the attention of Rich Lowry and Michael Potemra at National Review. I asked them to assign the book for review when it came out. I’m not sure what they were thinking other than “Okay, wise guy,” but they sent me their review copy. NR published my review of Hamburger’s book under a heading that perfectly captured Hamburger’s point: “A new old regime.” We also posted an interview of Professor Hamburger about the book here on Power Line.

Gary Lawson teaches administrative law at Boston University School of Law. He is one of the most respected scholars of administrative law in the United States. In his own review of the book, Lawson conceded that Hamburger had persuaded him that Lawson had erred on a key point concerning the legality of administrative law.

Lawson graciously paid tribute to the book: “With characteristic erudition, Philip Hamburger shows how virtually every aspect of the modern administrative state undermines the Anglo-American legal tradition—or at least that part of the tradition that most informed the American founding. It is a provocative thesis, but one that is amply supported by extensive scholarly argument and fascinating historical study.”

Lawson zeroed in on the thrust of the book: “Hamburger makes an impressive case that modern administrative law owes its lineage to claims of monarchical prerogative and civil law absolutism that were precisely the ideas that the American revolution was trying to reject.”

Professor Lawson posted his formal review of the book for the University of Texas Law Review at SSRN. Lawson titled his review “The return of the king: The unsavory origins of administrative law.” I posted an excerpt of the review here.

Hamburger’s book belies the main currents of administrative law scholarship. According to such mainstream administrative law scholars as Adrian Vermeule, for example, there is nothing administrative law can’t do. We are instructed to yield to its majesty. See, for example, Jonathan Adler’s NR review — “Pangloss and the bureaucrats” — of Vermeule’s most recent book.

Is Administrative Law Unlawful? is easily the most important book I have read in a long time (Lawson himself had the same thought), but it is not easy reading. Reading it is a long slog. It is the kind of book, however, that continues to influence thinking and understanding — the climate of opinion — over time. The Manhattan Institute, for example, awarded Hamburger its Hayek Prize for the book last year. The video of his Hayek lecture is below, with a preface by Amity Shlaes and an introduction by former New York Times columnist John Tierney. This year Hamburger was also recognized with a Bradley Prize.

My point, and I do have one, is this. Encounter Books has just published Hamburger’s 64-page pamphlet, The Administrative Threat. Here is the first paragraph:

Although the United States remains a republic, administrative power creates within it a very different sort of government. The result is a state within the state — an administrative state within the Constitution’s United States. The state within is sometimes called “the regulatory state” to emphasize its burdens on economic and personal freedom, and is sometimes called “the deep state” because of its tendency to interfere with our elected government. This [pamphlet] focuses on the legal side of the problem — on the power claimed by the administrative state and how it slices through basic civil liberties.

By contrast with the book, the pamphlet welcomes the average reader with an interest in the subject. I recommend it highly.

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