Philip Hamburger, Is Administrative Law Unlawful?

Excerpt

Philip Hamburger’s Is Administrative Law Unlawful? is a powerful legal broadside against the American administrative state. Hamburger argues that modern administrative state rulemaking and adjudication are both unlawful and unconstitutional, reminiscent of the practices of English prerogative courts like the Star Chamber and the High Commission during the reigns of James 1st and Charles 1st. The tyrannical propensities of these Stuart kings were checked both by the resistance of Whig Parliaments and the fortitude of English Common Law judges, who insisted that kings must rule lawfully. British resistance to monarchical absolutism culminated in the abolition of the Star Chamber and High Commission in 1641, and, with this precedent in mind, Hamburger urges us to dismantle the modern administrative state and return to congressional rulemaking and judicial adjudication. These reforms would restore “rule through law,” a more precise concept in his analysis than “the rule of law.” Boldly rejecting virtually the entire corpus of modern administrative law as an ideological justification for unconstitutional practices, Hamburger insists that the Constitution was a radicalization of the Whig rejection of prerogative rule and that the amalgamation of powers of rulemaking and adjudication in most administrative agencies violates a proper understanding of the foundational separation of powers principle of the American Constitution. …