Philip Hamburger > Quotes

“Some specialized types of administrative legislation require further attention—for example, determinations that make law. These determinations echo the old determinations of facts, in which an executive officer determined a factual question that was a condition of a statute’s application. Rather than being exercises of mere discernment or judgment, however, the newer style determinations often include overt exercises of lawmaking will. Such determinations arise under statutes that leave plenty of room for lawmaking. For example, the administrator of the Environmental Protection Agency is required to specify the application of the EPA’s ambient air quality standards by publishing a list of air pollutants that “in his judgment, cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare.”9 Although statutes of this sort speak in terms of determinations and judgments, they provide for determinations of questions so abstract or loosely stated that the agencies inevitably must engage in policy choices—in legislative will rather than mere judgment. As put by Justice Thurgood Marshall in a 1970 dissent, “the factual issues with which the Secretary [of Labor] must deal are frequently not subject to any definitive resolution,” for “[c]ausal connections and theoretical extrapolations may be uncertain,” and “when the question involves determination of the acceptable level of risk, the ultimate decision must necessarily be based on considerations of policy, as well as empirically verifiable facts.” Thus, “[t]he decision to take action in conditions of uncertainty bears little resemblance to . . . empirically verifiable factual conclusions.”10 In such instances, factual determinations become exercises of lawmaking will.”
― Philip Hamburger, Is Administrative Law Unlawful?

“Indeed, during the ensuring centuries, Englishmen repeatedly protested that a king could “not break or dispense with the positive laws,” and they asked, “What certainty should there be in anything, where all depend on one’s will and affection?”
― Philip Hamburger, Is Administrative Law Unlawful?

“In sum, part I has shown that administrative law revives prerogative legislation, together with the prerogative of suspending and dispensing with law—thus restoring an extralegal regime of making and unmaking law. And lest it be thought that this is improbable, it should be recalled that some leading advocates of administrative law candidly admitted that their project was to return to prerogative power. John Dickinson, for example, observed that “the question of whether or not the king can issue ordinances parallels our modern question as to whether or not an executive body or officer can establish regulations; and the arguments used pro and con have followed much the same lines.”25 Put more theoretically, administrative lawmaking is not a power exercised through law, but a power outside it. Indeed, as will become more fully apparent in part III, it is a power above the law. But even when considered simply as a power outside the law, this extralegal regime revives what once was considered absolute power. Administrative law thus returns to the very sort of power that constitutions developed in order to prohibit. The prerogative to issue law-like commands was the primary point of contention in the English constitutional struggles of the seventeenth century. In response, the English developed a constitution and Americans enacted a constitution that placed all legislative power in the legislature. It therefore is mistaken to assume that American administrative law is a novel mode of governance, which could not have been anticipated or barred by the U.S. Constitution. On the contrary, administrative power revives extralegal rulemaking, interpretation, dispensing, and suspending, and thus almost the entire regime of extralegal lawmaking once associated with absolute prerogative power. It thereby restores what constitutions barred when they located legislative power in their legislatures.”
― Philip Hamburger, Is Administrative Law Unlawful?

“Indeed, they embraced a tradition that was notorious for its incompatibility with American law and liberty. The connection between absolute and administrative power was not a secret. In the most prominent book on constitutional law of the late nineteenth century, Dicey began by observing that “the views of the prerogative maintained by Crown lawyers under the Tudors and the Stuarts bear a marked resemblance to the legal and administrative ideas which at the present day under the Third Republic still support the droit administratif of France.”82 The Americans who espoused administrative power, however, had little patience for history and even less for law. As has been seen, they preferred to speak in German-derived sociological terms about functional realities and about the historical inevitability of administrative power in modern society. Like their German intellectual forbears, moreover, they dismissed constitutional obstacles as mere formalities, usually with a tone of contempt. It is a style that has not altogether passed.83 That governments seek power, including absolute power, should be no surprise. What is disappointing is that so many Americans drew upon absolutist ideas without pausing to consider the significance of their civilian and German heritage or why such ideas had been rejected by Anglo-American constitutional law.”
― Philip Hamburger, Is Administrative Law Unlawful?

“Following in this tradition, Americans constitutions almost uniformly authorized American governments to act against their subjects only through and under law. As put by John Adams in 1776, Americans aimed to establish governments in which a governor or president had “the whole executive power, after divesting it of those badges of domination called prerogatives,” by which Adams meant, of course, the absolute prerogatives.”
― Philip Hamburger, Is Administrative Law Unlawful?

“It may be thought that administrative legislation at least comes with virtual representation. Although the administrative lawmakers themselves are unelected, they are appointed by presidential authority, and they act under congressional authorization or acquiescence. It therefore could be imagined that they are virtually, even if not actually, acting as representatives of the people. In fact, however, most administrators are not even chosen directly by the president. Although heads of agencies and a few others at the top of each agency are political appointees, selected by the president or his staff, almost all other administrators are hired by existing administrators. Thus, almost all of those who make law through administrative interpretations were never even picked by elected politicians. Far from being elected by the people, let alone elected politicians, they are appointed by other administrators. Their authority thus is not even virtually representative, but is merely that of a self-perpetuating bureaucratic class. Accordingly, the suggestion that their lawmaking comes with virtual representation is illusory. Virtual representation, moreover, is not a very convincing theory, for it traditionally was an excuse for denying representation to colonists and then to women. For example, although women could not elect representatives and senators, they were said to be virtually represented through their husbands or fathers.10 Nowadays, the same sort of theory (whether put in terms of “virtual,” “delegated,” or “derivative” representation) remains an excuse for refusing representation—this time for refusing it to the entire nation. Nor is this a coincidence. As will soon be seen, it was when Americans acquired equal voting rights that much legislation was shifted outside the elected legislature. The virtual representation excuse therefore should be understood in the same way in the past, as a brazen justification for denying representation. Administrative agencies or officers thus are not representative lawmaking bodies, let alone the Constitution’s representative lawmaking body. Perhaps it will be suggested that it is sufficient for administrative power to be mere state coercion. But no one, neither an individual nor a government, has any natural superiority or power over anyone else. Therefore, if a law is not to be mere coercion, it must be made by the people or at least by their representative legislature, and obviously administrative law is not made by either.”
― Philip Hamburger, Is Administrative Law Unlawful?

“The central historical understanding of speech and press rights was as a freedom from licensing – from the requirement of having to get prior administrative permission. And when such rights were threatened by postpublication prosecutions, they were recognized to be dependent on the right to a jury trial.”
― Philip Hamburger, The Administrative Threat

“The danger of an administrative return to an extralegal regime becomes particularly concrete when one recognizes the potential for evasion. Administrative law evades not only the law but also its institutions, processes, and rights. The central evasion is the end run around acts of Congress and the judgments of the courts by substituting executive edicts. This suggests that there can be an alternative system of law, which is not quite law, but that nonetheless can be enforced against the public. As if this were not enough, the evasion also gets around the Constitution’s institutions and processes. For example, when the executive makes regulations, it claims to escape the constitutional requirements for the election of lawmakers, for bicameralism, for deliberation, for publication of legislative journals, and for a veto. Similarly, when the executive adjudicates disputes, it claims to sidestep most of the requirements about judicial independence, due process, grand juries, petit juries, and judicial warrants and orders. The judicial evasion is particularly troubling when one realizes that it escapes almost all of the procedural rights guaranteed by the Constitution. Recognizing at least the due process problem, courts and commentators sometimes suggest that administrative adjudication is subject to a lesser, administrative version of due process. It remains unclear, however, how a fraction of a right can substitute for the whole, or how the due process of administrative power in an administrative tribunal can substitute for the due process of law in a court. This is like a substitution of water for whisky, and the fact that both are liquid does not hide the evasion.”
― Philip Hamburger, Is Administrative Law Unlawful?

“In general, the natural dividing line between legislative and nonlegislative power was between rules that bound subjects and those that did not. Legal obligation seemed by nature to require consent. It therefore was assumed that the enactment of legally binding rules could come only from a representative legislature and that the resulting rules could bind only subjects, not other peoples.3 As put by John Locke, the “legislative authority” is that by which laws “are in force over the subjects of th[e] commonwealth.” Blackstone elaborated, “Legislators and their laws are said to compel and oblige.”
― Philip Hamburger, Is Administrative Law Unlawful?

“Executive power thus could be exercised adjacent to legislation without actually trespassing on legislative power. The executive, for example, could make regulations and interpretations that merely directed executive officers and nonsubjects and could make determinations that merely discerned facts or the duties of subjects. Although these executive acts came close to legislation, they generally did not bind members of the public, and they therefore were not legislative. As a result, early executive regulations, interpretations, and determinations are not precedents for binding administrative legislation. On the contrary, they show the difference between lawful executive action and unlawful administrative lawmaking, and they thereby reveal that the one is not threatened by the argument against the other.”
― Philip Hamburger, Is Administrative Law Unlawful?

“And already here the danger should be evident—that government has returned to the era before constitutions, when kings or executives ruled not through law but outside it. A return to a preconstitutional era of prerogative power may not seem worrisome, for like its predecessor, administrative power often seems benign. The peril of administrative power, however, lies not in its potential for good, but in its potential for danger by unraveling government through law.”
― Philip Hamburger, Is Administrative Law Unlawful?

“It therefore is necessary to consider the possibility that administrative law was an instrument of a class that took a dim view of popularly elected legislatures and a high view of its own rationality and specialized knowledge. This class drew upon popular political power, but primarily to establish another sort of power, which would be exercised by members of its own class, in a manner that reflected the alleged authority that came with their specialized knowledge. Although it did not thereby become the only ruling class, it at least made itself the rulemaking class.”
― Philip Hamburger, Is Administrative Law Unlawful?

“By the same token, the executive cannot exercise legislative power, even if it has legislative authorization, for when it acts alone, it is a sort of Rump—certainly as much a Rump as the House of Commons once was. Although it would be bad enough for the two houses of Congress to exercise legislative power alone, it is worse for the president or his subordinates to do so, for he constitutionally enjoys only a negative on legislation. Put another way, if Congress cannot delegate legislative power to the two congressional bodies that ordinarily adopt legislation, how can Congress delegate this power to the body that ordinarily has only a veto on legislation? Such, however, is the current reality. The result is a strange reversal of roles. Administrative lawmaking belongs to the branch of government that constitutionally enjoys only a veto. In contrast, the veto on such lawmaking now requires full, constitutionally authorized legislation adopted by both houses of Congress and the president. Thus, whereas the adoption of legislation once arose from the branch designed to be representative and cautious, it now often comes from the branch designed for effective force. And whereas the veto arose from the forceful part of government, it now in many instances must come from a combination of all branches. Unsurprisingly, this reverses”
― Philip Hamburger, Is Administrative Law Unlawful?

“Administrative law thereby has transformed American government and society. Although this mode of power is unrecognized by the Constitution, it has become the government’s primary mode of controlling Americans, and it increasingly imposes profound restrictions on their liberty. It therefore is time to reconsider the lawfulness of administrative law.”
― Philip Hamburger, Is Administrative Law Unlawful?

“Roger Twysden—a mid-seventeenth-century commentator—observed, “This maxim, that the king cannot alone alter the law” is “the basis or ground of all the liberty and franchise of the subject.” The alternative seemed dire: “I cannot imagine how the subject can have any thing sure and lasting in any government where that power only depends on the monarch’s will.”
― Philip Hamburger, Is Administrative Law Unlawful?

“On behalf of the deference under the Administrative Procedure Act, it is said that Congress is not constitutionally barred from authorizing deference—as if Congress can detract from the office of the judges. The office of the judges, however, was an element of the Constitution’s grant of judicial power, and it required the judges to exercise independent judgment in accord with the law of the land. Put another way, when the Constitution authorized judicial power, it took for granted that judges, by their nature, had such a duty.19 This judicial duty was recognized very early, because it was the foundation of what nowadays is called “judicial review.” When writing about the judicial power of North Carolina in 1786, James Iredell explained: “The duty of the power I conceive, in all cases, is to decide according to the laws of the state,” and as “the constitution is a law of the state,” a statute “inconsistent with the constitution is void.” Or as put by John Marshall in Marbury v. Madison, where “both the law and the constitution apply to a particular case” the court “must determine which of these conflicting rules governs the case,” this being “of the very essence of judicial duty.”20 Judicial review, in other words, is entailed by judicial duty—a duty that accompanies judicial power and that requires judges to exercise their own independent judgment in following the law. And another result of this duty is that a mere statute cannot justify the judges in abandoning their independent judgment or in following extralegal rules or interpretations. As if this were not enough, the U.S. Constitution adds that no person shall be “deprived of life, liberty, or property, without due process of law.” If this means anything, it surely requires a judge not to defer to one of the parties, let alone to defer systematically to the government. Nonetheless, on the basis of a mere statute, the judges generally defer. The next step is to examine the varieties”
― Philip Hamburger, Is Administrative Law Unlawful?

“The people could still have their republic, but much legislative power would be shifted out of an elected body and into the hands of the right sort of people. Rather than narrowly a matter of racism, this has been a transfer of legislative power to the knowledge class – meaning not a class defined in Marxist or other economic terms but those persons whose identity or sense of selfworth centers on their knowledge. More than merely the intelligentsia, this class includes all who are more attached to the authority of knowledge than to the authority of local political communities. Which is not to say that they have been particularly knowledgeable, but that their sense of affinity with cosmopolitan knowledge, rather than local connectedness, has been the foundation of their influence and identity.”
― Philip Hamburger, The Administrative Threat

“This breadth of constitutional law in barring extralegal legislation is revealing about more than the past. The reader will have to wait patiently until chapter 7 for details of the current regime of extralegal lawmaking, but the significance of the history can already be anticipated. In an era of administrative legislation, it often is assumed that when the U.S. Constitution grants legislative power to Congress, it does not bar the executive from issuing binding rules, making interpretations, or setting taxes—as long as the executive has legislative authorization or at least acquiescence. The history of constitutional law, however, reveals that constitutions developed to bar all extralegal lawmaking—the point being to confine government to ruling through the law. Thus, administrative legislation—whether by proclamation, rulemaking, interpretation, or taxation—is not a novel form of lawmaking, and it cannot, on account of its alleged novelty, escape constitutional restrictions. On the contrary, it is a return to the extralegal legislation that constitutions were established to prohibit.”
― Philip Hamburger, Is Administrative Law Unlawful?

“In short, it is remarkably difficult to find instances in nineteenth-century federal law in which the executive offered relief to anyone in the rest of the public from the legal duties that directly bound them. Toward the end of the century, there were hints of changing views, but in an era in which the English dispensing power, and the constitutional rejection of it, were still understood, it is no surprise that Congress apparently did not authorize any such power.”
― Philip Hamburger, Is Administrative Law Unlawful?

“Gary Lawson observes: “The modern administrative state is not merely unconstitutional; it is anti-constitutional. The Constitution was designed specifically to prevent the emergence of the kinds of institutions that characterize the modern administrative state.”2 These brief observations are very apt but are only laconic”
― Philip Hamburger, Is Administrative Law Unlawful?