Book review: Is Administrative Law Unlawful?

Scott Johnson reviews this new (and timely) book from a professor at Columbia Law School and concludes:  Obama’s exercise of prerogative power is not progressive, it’s a throwback to the British Monarchy.

The author, a distinguished scholar specializing in legal history, covers a lot of theory and history – from Magna Carta through recent SCOTUS decisions.  Here’s an excerpt that omits those details to summarize the thrust of his argument.  But if you enjoy that sort of thing I encourage you to click through.

indexEvery day the headlines bring news of the Obama 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 exercises or threatens to exercise executive power to write and rewrite and waive the duly enacted law of the land. Now Obama threatens to regularize the immigration status of millions more illegal immigrants by decree as well.

The practice of rule by decree is of dubious constitutionality, to say the least, and Obama is extending it to the breaking point. While of dubious constitutionality, the practice is not without precedent. The precedent, however, is the prerogative power claimed in the past by the British king. It is the power against which the British revolted in the Glorious Revolution of 1688 and against which we revolted in 1776.

Now comes Professor Philip Hamburger with a serious work of legal scholarship on the return of the prerogative power to our government. The power returns in the dry-as-dust form of “administrative law,” reflecting the agency form of government. Administrative law has not been a matter of substantial intellectual controversy for a long time. Professor Hamburger comes not to bring peace, but rather a sword of understanding and ultimately of action. He means for us to understand what we have lost or are losing.

To adapt the adage misattributed to Trotsky that is achieving the status of a cliché, you may not be interested in administrative law, but administrative law is interested in you. Hamburger declares that although administrative law is unrecognized by the Constitution, 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.”

In this form of government, Congress delegates its legislative authority to an administrative agency in the executive branch. The agency promulgates regulations with the binding force of law. It prosecutes citizens for violating the regulations. It also acts as the judge and jury in prosecutions it brings. The agencies therefore combine legislative, executive, and judicial functions in the same body

What the Constitution carefully puts asunder into three branches, administrative law has come to join in unholy union. As it was meant to do by its progressive advocates, it defeats the separation of powers

The regime of administrative law depends to a great extent on Congress’s delegation of its lawmaking authority to these administrative agencies. The Supreme Court has purported to limit Congress’s authority to delegate its lawmaking power under an extremely lenient nondelegation doctrine (Congress’s lawmaking delegation must articulate an “intelligible principle”). The last time it enforced the doctrine to strike down a statute was in 1935… The Court’s history to the contrary notwithstanding, Hamburger argues in a key chapter that Congress’s delegation of lawmaking authority is flatly unconstitutional; this argument is central to his indictment of administrative law… Hamburger persuades me completely on this important point, but he is a voice crying in the wilderness.


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