Cover of Is Administrative Law Unlawful?
Is Administrative Law Unlawful?
by Philip Hamburger
University of Chicago Press, 2014
Cloth: 978-0-226-11659-4 | Paper: 978-0-226-32463-0 | Electronic: 978-0-226-11645-7
DOI: 10.7208/chicago/9780226116457.001.0001

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ABOUT THIS BOOKAUTHOR BIOGRAPHYREVIEWSTABLE OF CONTENTS

ABOUT THIS BOOK

Is administrative law unlawful? This provocative question has become all the more significant with the expansion of the modern administrative state. While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society.

With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent.

With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious—and profoundly unlawful—return to dangerous pre-constitutional absolutism.

AUTHOR BIOGRAPHY

Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School.

REVIEWS

“Is Administrative Law Unlawful? is a work of the very highest quality, a learned scholarly exegesis setting out the intellectual foundations—in medieval and early modern English constitutional thought—for the proposition that the contemporary American administrative state is profoundly unconstitutional and unlawful. Philip Hamburger’s argument is intricately wrought and forcefully expressed. Its indictment of modern administration in America doubles as a major statement on the virtues of a genuinely constitutional government.”
— Ken I. Kersch, Boston College

"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. 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. This is a tremendously important book."
— Gary S. Lawson, Boston University School of Law

“An important new book that is very much worth reading."
— National Review, Bench Memos

"The most important book I have read in a long time."
— Scott Johnson, Power Line

“The administrative state is a modern invention. It was, and remains, a necessity in our complex modern age. Or so goes the argument. . . . Hamburger meticulously (and sometimes laboriously) demonstrates how the modern administrative state revives all the attributes of the royal prerogative and absolute power.”
— Ilan Wurman, Weekly Standard

“A serious work of legal scholarship. . . . This is a book that rewards the reader with a deepened understanding of the Constitution and the challenges that confront us in the task of restoration. . . . The news of the day repeatedly buttresses the powerful case Hamburger makes against the legitimacy of the vast administrative apparatus that does so much to dictate the way we live now. It is a book not only of this season but of many seasons to come.”
— National Review

“An interesting new work by Philip Hamburger dispenses with the tiresome back and forth between Republicans and Democrats. Instead, it focuses on Washington’s permanent administration—the ever-expanding federal bureaucracies that have come to play a central role in health care, finance, housing and work, and large roles in education, energy and whatever else constitutes the American system. . . . Hamburger’s book is filled with details of how the centralisation of power divorced from a popular or court mandate leads to insularity and even insurrection as hopes of efficiency and expertise give way to bureaucratic inertia.”
— Economist

“[Is Administrative Law Unlawful?] is the author’s most ambitious, even daring, work, for not only does it question important features of administrative law; it challenges (as the title suggests) their very legality. . . . Deeply researched and well written, the book is a veritable cornucopia of fresh and significant insights that will greatly enrich the existing literature. It is a work of encyclopedic breadth and erudition, confirming that its author is equally comfortable with grand themes and matters of granular detail.”
— Claremont Review of Books

“Hamburger argues persuasively that America has overlaid its constitutional system with a form of governance that is both alien and dangerous. . . . Some readers undoubtedly will find daunting this book’s length. . . . But it is lucidly written and carefully organized, and certainly it is no small task to analyze just how deeply the administrative state threatens liberty and constitutionalism. Scholars will return to Hamburger’s exhaustive explication of these issues for a long time to come.”
— Law and Politics Book Review

“Immensely important. . . . Hamburger indicts the entire structure of executive-agency rulemaking as illegitimate. . . . An argument of deep passion, learning, intelligence, and consequence that deserves to reach the widest possible audience.”
— City Journal

“A masterful look at the origins and legitimacy of American administrative law. . . . Anyone interested in the rise of the American administrative state will benefit from this original, erudite, and thought-provoking book.”
— Law and History Review

"Philip Hamburger’s Is Administrative Law Unlawful? is a powerful legal broadside against the American administrative state."
— Society

TABLE OF CONTENTS

Introduction


DOI: 10.7208/chicago/9780226116457.003.0001
[Unconstitutional, Necessity, Absolute Power, Extra-legal power, Supra-legal power]
There already are constitutional critiques of administrative law, but they tend to focus on the flat formal question of unconstitutionality, and this is not enough. By digging into the underlying history, this book explores how the Constitution was framed to bar the dangers of extra-legal, supra-legal, and otherwise absolute power, including administrative law. On the other side of the debate, many of the defences of administrative law come to rest on its necessity of extra-legal binding power, thus largely conceding the extra-legal nature of administrative law. (pages 15 - 20)


DOI: 10.7208/chicago/9780226116457.003.0002
[Rule of law, Rule through and under law, Extra-legal, Supra-legal, Prerogative , Absolute Power]
This chapter introduces the concepts that frame the book’s arguments. The rule of law is an amorphous concept, and this book therefore talks more specifically about rule through and under law. From this perspective, it become apparent that administrative power is a sort of extra- and supra-legal power and that it thus is a type of prerogative and even absolute power. (pages 21 - 30)

I. Extralegal Legislation


DOI: 10.7208/chicago/9780226116457.003.0003
[Proclamations, Administrative lawmaking, Extra-legal]
English kings sometimes used their proclamations to impose binding duties, and they thereby asserted a power that (in the ideals of the common law) they could exercise only through acts of Parliament. At stake, therefore, in the dispute about proclamations was extra-legal lawmaking--the power to legislate outside the law, outside the legislature, and outside legislative processes. The question of proclamations thus gets to the heart of what nowadays is administrative lawmaking. It even reaches the question of whether the legislature can authorize such lawmaking. (pages 33 - 50)


DOI: 10.7208/chicago/9780226116457.003.0004
[Interpretation, Regulation, Taxation]
The danger of extra-legal legislation can take many forms. The Crown, for example, tried to make binding law not only through proclamations but also through prerogative interpretations, regulations, and taxes. Like its proclamations, however, these other modes of prerogative lawmaking provoked the development of constitutional law, which clarified that there could be no extra-legal legislative power. Government could impose binding rules only through and under the law. Nonetheless, these days, administrative agencies have revived the extra-legal lawmaking done through interpretation, regulation, and taxing. They thereby return to familiar modes of extra-legal lawmaking--modes that were long ago prohibited by constitutional law. (pages 51 - 64)


DOI: 10.7208/chicago/9780226116457.003.0005
[Waivers, Suspending power, Dispensing power]
English kings claimed a prerogative generally to suspend a statute, or at least to dispense with it for particular persons, and kings exercised these two powers not through the law, but outside it. Indeed, these extra-legal powers, especially the dispensing power, came to be viewed as the epitome of the absolute prerogative and profoundly unconstitutional. Nowadays, these prerogatives, most basically the dispensing power, have acquired new life in the form of administrative waivers. (Topics include: waivers, suspending power, dispensing power.) (pages 65 - 82)


DOI: 10.7208/chicago/9780226116457.003.0006
[Regulation of executive officers, Regulation of non-subjects, Non-binding interpretation, Military orders, Determinations of legal duties, Licensing, Determinations of facts]
Having examined the historical evidence that administrative legislation returns to prerogative lawmaking, this book must pause to caution against over-reading the argument. The point thus far has been that executive lawmaking creates an extra-legal regime--a regime of legislation outside the law and also outside the constitutionally-established lawmaking institutions and processes. The argument, however, does not go so far as to question executive action that does not impose binding constraints on subjects. (Topics include: regulation of executive officers; regulation of non-subjects; non-binding interpretation, military orders; determinations of legal duties; licensing; determinations of facts.) (pages 83 - 110)


DOI: 10.7208/chicago/9780226116457.003.0007
[Extra-legal lawmaking, Waivers]
This chapter completes Part I of this book by examining how contemporary administrative legislation returns to an extra-legal regime of lawmaking. Like the old prerogative bodies, administrative agencies act outside the law, the legislature, and the legislative process to impose binding rules and interpretations. The agencies thereby return to extra-legal governance, which is precisely what constitutional law developed in the seventeenth-century to prevent. (Topics include: extra-legal lawmaking; waivers.) (pages 111 - 128)

II. Extralegal Adjudication


DOI: 10.7208/chicago/9780226116457.003.0008
[Prerogative courts, Extra-legal adjudication, Star Chamber, High Commission]
The Crown enforced its prerogative legislation through prerogative adjudication. Whether in temporary commissions or the prerogative courts, the Crown applied its extra-legal power through extra-legal judicial proceedings. English and American constitutional law, however, barred this extra-legal power by concluding that judicial power resided in the courts. It therefore is worrisome that administrative law has revived extra-legal adjudication, thus restoring one of the most basic threats that constitutional law prohibited. (Topics include: Prerogative courts; Extra-legal adjudication; Star Chamber; High Commission.) (pages 133 - 142)


DOI: 10.7208/chicago/9780226116457.003.0009
[Judges, Juries]
Common law adjudication was conducted by judges and juries--judges who exercised independent judgment in accord with the law, and juries who brought charges and gave verdicts. In contrast, prerogative adjudication was done by Crown officers, who sometimes were called judges, but who did not have the office of a common law judge and did not act through juries. Prerogative adjudication thus was profoundly different from common law adjudication in ways that added to the constitutional problems. Nonetheless, administrative law returns to the prerogative practice of exercising judicial power without juries or even real judges. (pages 143 - 156)


DOI: 10.7208/chicago/9780226116457.003.0010
[Due process of law, Inquisitorial process]
Whereas the common law had its own ideals about the personnel, structure, and mode of proceeding of its courts--ideals that could be summed up as the due process of law--the prerogative courts employed an inquisitorial process (including self-incrimination) drawn from the civil law. The inquisitorial procedures of the prerogative tribunals shaped much constitutional law, for in response to the growth of the inquisitorial model in the prerogative courts, the English elevated some of their old practices and principles to constitutional law. Most notably, they developed their old practices against self-incrimination, and their old ideal of due process, into constitutional principles. This history still matters because it shows that the constitutional principles on self-incrimination and due process developed in response to prerogative adjudication and that they thus clearly applied, in all of their detail, not only to regular adjudication in the courts but also to irregular adjudication outside the courts. It therefore is disturbing that many elements of the old inquisitorial process have reappeared in administrative tribunals. What once was dangerous and unconstitutional in such bodies now is accepted as utterly mundane. (pages 157 - 174)


DOI: 10.7208/chicago/9780226116457.003.0011
[Orders, Warrants, General warrants, Subpoenas, Judicial power, Due process of law]
When the Crown’s prerogative courts issued binding orders and warrants, outside judicial channels, the English responded by developing constitutional limits. The English clarified that the constitutional power to issue binding orders and warrants was judicial and that it thus belonged exclusively to the courts and their judges. The English also made clear that all judicial power, including binding orders and warrants, was limited by due process and, more specifically, by the common law requirements for warrants. Not only in England but eventually also in America, these constitutional principles barred extra-legal judicial orders and warrants. As a result, administrative orders and warrants can no more escape such principles than their prerogative predecessors. (Topics include: orders; subpoenas; warrants; general warrants; judicial power; due process of law.) (pages 175 - 190)


DOI: 10.7208/chicago/9780226116457.003.0012
[Adjudication concerning non-subjects, Adjudication concerning benefits, Determinations of duties, Orders to appear, testify, or produce records, Reporting, Record keeping, Inspection]
The early federal executive could do much that came close to judicial power. For example, the executive could hold judicial-like hearings and could issue orders directing its own officers. But it could do these things that might seem like judicial power only as long as it did not thereby bind subjects in the manner of actual judicial power. (Topics include: adjudication concerning non-subjects; adjudication concerning benefits; determinations of duties; orders to appear, testify, or produce records; reporting; record keeping; inspection.) (pages 191 - 226)


DOI: 10.7208/chicago/9780226116457.003.0013
[Administrative adjudication, Criminal in nature, Due process, Grand jury, Petit jury, Unspecific accusations, Closed hearings, Evidence, Discovery, Burden of proof, Self-incrimination, Licensing, Administrative extortion, Orders, Warrants]
Administrative law has revived extra-legal adjudication. In defense of administrative adjudication, many scholars and judges hint that the Constitution’s grant of judicial power, and its judicial processes and rights, centrally limit the courts, and thus not so much the executive. These constitutional principles, however, developed over the centuries mostly to bar extra-legal exercises of judicial power. The return to an extra-legal judicial regime therefore cannot really escape these constitutional limits. (Topics include: administrative adjudication; criminal in nature; due process; grand jury; petit jury; unspecific accusations; closed hearings; evidence; discovery; burden of proof; self-incrimination; licensing; administrative extortion; orders; warrants.) (pages 227 - 276)


DOI: 10.7208/chicago/9780226116457.003.0014
[Rule of law, Rule through and under law, Absolute power]
Underlying the constitutional rejection of an extra-legal regime was the principle that government must govern through the law. The point that government must act under law is familiar, but even more fundamentally, government had to govern through the law. To be precise, it could bind only through the law and its courts. (Topics include: rule of law; rule through and under law; absolute power; constitutional.) (pages 277 - 282)

III. Supralegal Power and Judicial Deference


DOI: 10.7208/chicago/9780226116457.003.0015
[Deference, Supra-legal, Absolute power]
In defense of its extra-legal power, the Crown demanded judicial deference. To be precise, it sought to secure its power outside the law by seeking deference to it as a power above the law. This demand for deference to an absolute prerogative collided with the supremacy of the law and the independent judgment of the judges. Although, after a century of struggle, the English put such questions to rest, all that then was settled has been reopened by contemporary demands for deference to administrative power. (Topics include: deference; supra-legal; absolute power.) (pages 285 - 298)


DOI: 10.7208/chicago/9780226116457.003.0016
[Deference, Supra-legal, Absolute power]
The question of deference has not gone away. The administrative return to extra-legal power has led to revived demands for deference to such power, and in compliance, judges largely defer to administrative decisions, as if they were above the law. Of course, the new deference is different from the past deference, but the reality of deference to supra-legal power has returned. (Topics include: deference; supra-legal; absolute power.) (pages 299 - 322)

IV. Consolidated Power


DOI: 10.7208/chicago/9780226116457.003.0017
[Separation of powers, Specialized powers]
In creating an extra-legal system of governance, administrative law also consolidates power. This point often is discussed as a matter of the separation of powers, but it actually is a broader counter-development, for it consolidates the different government powers back into one branch of government. Most basically, this sort of government is unspecialized. The separation of powers was a specialization of powers. It therefore was not so much a separation of the branches of government as, more basically, a separation of three specialized powers of government. By cutting through the specialization, administrative law creates an unspecialized irregular regime alongside the specialized regular government, and it thereby threatens the structural foundations of American government and freedom. (pages 325 - 346)


DOI: 10.7208/chicago/9780226116457.003.0018
[Divided, Bicameral, Veto, Judge, Jury, Grand jury]
Although the Constitution divides the three powers of government among different branches of government, it does not stop there, for it further divides authority within these branches. The consolidating effect of administrative law therefore reaches far. In collapsing tripartite government, the executive’s exercise of legislative and judicial powers also collapses the lesser divisions within (or associated with) these powers. (Topics include: divided; bicameral; veto; judge; jury; grand jury.) (pages 347 - 354)


DOI: 10.7208/chicago/9780226116457.003.0019
[Representation, Consent, Obligation, Unelected, Accountability, Notice & comment, Continuous legislators, New class, Knowledge class]
Although the Constitution places legislative power in a specialized representative institution, Congress, the administrative consolidation of powers establishes unrepresentative lawmaking. Administrative law thus inverts the relationship between the people and their government, reducing the people to servants, and elevating government as their master. (Topics include: representation; consent; obligation; unelected; accountability; notice and comment; continuous legislators; new class; knowledge class.) (pages 355 - 376)


DOI: 10.7208/chicago/9780226116457.003.0020
[Subdelegation, Agency, Legislative power, Judicial power]
Although it commonly is said that Congress delegates legislative power to the executive, this misstates the problem, for the difficulty is not delegation, but subdelegation. By means of the Constitution, the people delegate power to government. In particular, they delegate a specialized power to each branch of government. Accordingly, when Congress purports to give its legislative power to the executive, the question not whether the principal can delegate the power, but whether the agent can subdelegate it. (Topics include: subdelegation; agency; legislative power; judicial power.) (pages 377 - 402)


DOI: 10.7208/chicago/9780226116457.003.0021
[Federalism, Supremacy clause, Supremacy of the law of the land, Waivers]
Administrative law undermines the federal character of the United States. (Topics include: federalism; supremacy clause; supremacy of the law of the land; waivers.) (pages 403 - 408)

V. Absolute Power


DOI: 10.7208/chicago/9780226116457.003.0022
[Absolute, Soft Absolutism, Tocqueville]
Administrative power is a sort of absolute power in at least three ways: It is extra-legal, supra-legal, and consolidated power. It is, indeed, the sort of soft absolutism that Tocqueville feared in a democracy such as the United States. (pages 411 - 418)


DOI: 10.7208/chicago/9780226116457.003.0023
[Necessity, Necessary and proper, Vested powers]
Necessity has long been understood to rise above the law, and it has been a central justification for both traditional absolute power and for its contemporary administrative manifestation. The U.S. Constitution, however, does not recognize necessity as a power above the law. The Necessary and Proper Clause carefully focuses on vested powers and thus bars the congressional rearrangement of such powers. And in any case, there is little empirical support for the claims that administrative law is necessary. (pages 419 - 440)


DOI: 10.7208/chicago/9780226116457.003.0024
[Absolute, Administrative, Germany, Prussia, droit administrative, Verwaltungsrecht, Legal realism]
Administrative power is not merely recurrence of absolute power. It is, in fact, an historical continuation of such power. Absolute power, both extra- and supra-legal, developed in the hands of mostly Continental civilian scholars, and although it was defeated in England and America, it continued to flourish on the Continent. There it gradually acquired administrative form, and in this shape it then found its way back to the common law nations. Tellingly, both the Continental evolution of absolute power into administrative form, and the shift of such power to America, took largely German paths. Thus, mostly through German connections, there has been much continuity from absolute to administrative power. (Topics include: absolute; administrative; Germany; Prussia; droit administrative; Verwaltungsrecht; legal realism.) (pages 441 - 478)


DOI: 10.7208/chicago/9780226116457.003.0025
The conventional objections to recognizing that administrative law is unlawful are less serious than may be imagined. (Topics include: reliance; living constitution; precedent; judicial principles.) (pages 479 - 492)

Conclusion

Notes

Index of Cases

General Index

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