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Is Administrative Law Unlawful?
“Hamburger argues persuasively that America has overlaid its constitutional system with a form of governance that is both alien and dangerous.” —Law and Politics Book ReviewWhile 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.
646 pages, Kindle Edition
First published January 1, 2014
50 people are currently reading
383 people want to read
About the author
Philip Hamburger
20 books22 followersDr. Philip Hamburger is a scholar of constitutional law and its history at Columbia Law School. He received his bachelor’s degree from Princeton University and his J.D. from Yale Law School. Before coming to Columbia, he was the John P. Wilson Professor at the University of Chicago Law School. He also taught at George Washington University Law School, Northwestern Law School, University of Virginia Law School, and the University of Connecticut Law School. His work on administrative power has been celebrated by organizations like the Manhattan Institute and the Bradley Foundation.
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Displaying 1 - 17 of 17 reviews
March 15, 2015
This is a magnificent book, simultaneously haunting and bracing. In this book, Philip Hamburger demonstrates, shows, and proves that Americans are currently ruled by a system that the U.S. Constitution was explicitly designed to prevent. Our current system of administrative law "returns to the very power that constitutional law developed in order to defeat, it does more than simply depart from one or two constitutional provisions. It systematically steps outside the Constitution's structures, thereby creating an entire anti-constitutional regime" (p. 498).
This book is a fifty-gallon-drum-sized stick of dynamite with the fuse lit. It is required reading for every attorney, every political activist, and every land owner hassled by the EPA because of that duck that lands in your spring puddles.
This book is a fifty-gallon-drum-sized stick of dynamite with the fuse lit. It is required reading for every attorney, every political activist, and every land owner hassled by the EPA because of that duck that lands in your spring puddles.
November 10, 2020
After reading this book, I can say that this book doesn't hold up to the scrutiny of it making any sense.
There are 3 reasons to this.
1) Mr. Hamburger doesn't even describe what is unlawful about Administrative law. He just says that this is wrong and I don't like it. There needs to be a reason for it to be unlawful, and he doesn't provide it.
2) Mr. Hamburger is not good on History. By making obvious mistakes, he makes these claims seem like it has a long legal precedent, when they do not.
3) He contradicts himself throughout the book. On one hand, executive agencies are unlawful and can't make claims, and judges should strike them down. But on the other hand, if the legislature makes a law that tells the courts to defer to the executive, that is fine.
Overall, this is a book for the Libertarian sect of America where the sparknotes version of the argument boils down to three words: "I don't wanna"
There are 3 reasons to this.
1) Mr. Hamburger doesn't even describe what is unlawful about Administrative law. He just says that this is wrong and I don't like it. There needs to be a reason for it to be unlawful, and he doesn't provide it.
2) Mr. Hamburger is not good on History. By making obvious mistakes, he makes these claims seem like it has a long legal precedent, when they do not.
3) He contradicts himself throughout the book. On one hand, executive agencies are unlawful and can't make claims, and judges should strike them down. But on the other hand, if the legislature makes a law that tells the courts to defer to the executive, that is fine.
Overall, this is a book for the Libertarian sect of America where the sparknotes version of the argument boils down to three words: "I don't wanna"
May 2, 2016
Absolutely fantastic. Engaging, thorough, and extremely relevant. Hamburger delivers a deep exploration of the history and motivations behind the administrative state. Although it may seem an intimidating size, it is well-written and organized in such a way as to not be overwhelming. In fact, I'd even say it was enjoyable. Seriously check this out if you have any bit of interest in the topic.
May 17, 2017
Administrative law—the delegation by the legislature of legislative and judicial power to the executive—is the backdrop of every American life, but very few people realize this. Fewer still realize that this backdrop is less like a fine wallcovering, an aesthetically pleasing but minor element, and more like a sticky web that, not seen until it’s too late, entraps prey prior to its being devoured. To remedy this lack of knowledge, Phillip Hamburger has written this outstanding book, which explains how we got here, where we are, and why that is bad.
This is a very dense book—clear, but dense. While a non-lawyer could read it profitably, my guess is that he would find it difficult to follow, and would struggle with some concepts that Hamburger assumes the reader knows. These include items such as the historical difference between courts of law and courts of equity, the difference between common law and civil law, and the Constitution’s “necessary and proper” clause. Moreover, Hamburger generally assumes the reader understands the mechanics of today’s administrative law. I don’t think Hamburger could have written differently without making the book far too long, but it is unfortunate, because given left-wing dominance of the legal academy and profession, most of the author’s wisdom and insight will be like casting seed on barren ground. If you are a legal positivist, and believe in using the law to achieve so-called social justice, you do not care whether administrative law is unlawful, or, for that matter, about the law at all—you only care about desired results, and you will snicker at this book. Such people only understand power, and care nothing for the history and reasoning in this book, which focuses on what is lawful in the American system as it was set up and originally understood.
This means the core audience for this book is a small group of open-minded people with legal training, as well as those already opposed to the current tyrannical structure of administrative law. Presumably the author hopes that his book will offer intellectual ammunition to this intellectual elite in the wars to come. And perhaps this small audience is all that matters. With the possible shift in American power in November 2016, and the possible rescue of the Supreme Court from legal positivist dominance, if Hamburger’s book only convinces and reinforces a small group of key academics and judges, it may ultimately have significant influence that cannot be directly perceived.
I’ve been aware of the general parameters of administrative law for a long time (I even took a class in administrative law from Cass Sunstein, one of the modern giants of administrative law and recent head of OIRA), and while I’ve always been vaguely aware of certain major problems it creates for modern America, it is only recently that I have realized that administrative law is perhaps the central governance problem of our time. The creation of the “administrative state,” which really governs America and is both detached from and in opposition to democratic government, accountability, and the opinions of most of America, has greatly changed how our government works, or rather changed it from “our government” to “our governors.” But few realize or understand this, so into this knowledge gap has stepped Hamburger, out to prove that administrative law is “unlawful”—that is, it is incompatible with the deep structures of American law, and therefore it should be curbed, or, preferably, destroyed.
Much of this book is a history book, where the history is continuously tied to elements of the author’s thesis. The key premise of the author is that, contrary to general perception, administrative law is not new, nor is it a response to modern conditions. Instead, it is a “repeated phenomenon”—a rebirth of the prerogative power claimed again and again by English monarchs, with varying degrees of success, until the execution of Charles I destroyed any such claim, and English common law clearly and permanently rejected prerogative law and established the supremacy of Parliament.
Prerogative law was “absolute power,” but that did not imply a negation of law, rather it implied “an alternative mechanism for exercising control.” The principles underlying this rejection of prerogative law were deliberately and openly imported into American law, both on the state and federal levels. Colonial Americans, and those following for more than a hundred years, made repeated, explicit references to the need to avoid monarchical prerogative rule, law that was outside of and above legislative law, and to ensure that power was divided and specialized, to prevent the resurgence of this alternate mechanism of political control. Hamburger’s key thesis is that despite these efforts to structurally prevent the resurgence of prerogative rule, we have functionally returned to the days of Henry VIII, with the executive administrative state largely assuming the role of the monarch.
Hamburger begins by introducing his conceptual framework. For Hamburger, the key power is the power to constrain or bind the public (or, in Hamburger’s term, “subjects”—meaning those subject to the law, not used in a polemical sense). This power in the American framework was, until modern times, always confined to the legislature and the judiciary, with only the legislature having any role in creating new methods of binding. The role of the executive was solely to implement the administration of such binding edicts, including decisions such as who receives certain benefits—but never, except with respect to a very narrow set of questions involving borders and related affairs, to constrain or bind the public on its own initiative.
From this beginning, Hamburger attacks, in lengthy separate sections, administrative law as being extralegal legislation (that is, outside of law); extralegal adjudication; supralegal (that is, above the law) by virtue of being incorrectly deferred to by the judiciary; and consolidated (that is, eroding the key American legal structures of separation of powers and specialization of functions in the branches of government). Hamburger’s organizational structure is clear and coherent, and he follows it strictly, referencing topics belonging to other sections where necessary for explication or clarity.
Hamburger begins with analyzing administrative law as extralegal legislation. As with monarchical prerogative legislation, the entire point of administrative law is to evade the regular structures and processes of lawmaking. Sometimes, then and now, such evasion was authorized by the legislature, and justified “in terms of interpretation, judicial deference, and ultimately necessity.” Whether or not so authorized, Hamburger argues that the entire American system was designed precisely to absolutely prohibit such extralegal governance, instead requiring law, actions that bound or constrained subjects, to be created only by the legislature, which was forbidden from any delegation of its powers.
In his analysis, Hamburger first steps back to the 1539 Act of Proclamations, where Henry VIII most clearly demanded prerogative power, an Act repealed promptly upon Henry’s death. Hamburger traces this conflict through many subsequent interactions of king and Parliament, including judicial support and opposition, the development of the infamous Star Chamber as a vehicle for prerogative law, and the ultimate imposition of Parliamentary/constitutional supremacy in 1688. Hamburger notes various forms of prerogative rule beyond simple proclamations, including interpretations, regulations, and taxes. He traces how these were curbed by English common law, including through a rejection of claims of necessity (which, of course, was always imminent and yet also permanent—shades of today’s national security state). He expands the discussion to cover the suspending and dispensing powers claimed by English monarchs, which were rather the inverse of the power to bind, and notes (weaving the present into his narrative) how the modern administrative state similarly presumes to waive compliance with both statutory and regulatory law, despite the ultimate total English rejection of any such power outside of direct Parliamentary action, as well as its explicit rejection in American state and federal constitutional law. Finally, Hamburger itemizes the various ways in which regulations are made, primarily under the 1946 Administrative Procedure Act, ranging from formal rulemaking to the “guidance” so perniciously and so widely used by the Obama administration to evade the requirements of formal rulemaking. He also returns his focus to the modern use of waivers from regulations, which are, of course, merely the rejected executive suspending and dispensing powers rearing their heads again (he makes the distinction that while the legislature has the power to suspend the operation of a law as a whole, the very dangerous power to waive requirements, or dispense, in particular situations is not even granted to the legislature by the Constitution, and neither power can ever exist in the executive, within the framework of the Constitution). In sum, the modern administrative state has gotten everything the old English kings wanted, in that it governs wholly by the extralegal prerogative law utterly rejected by the framers of the American systems.
Hamburger then turns to extralegal adjudication, which buttresses extralegal legislation. “To enforce a system of extralegal power in a system of law, rulers must work through extralegal adjudication. The prerogative regime therefore relied on its prerogative courts, and these days the administrative regime relies on its administrative tribunals.” And those administrative tribunals, though they exercise near-plenary judicial power, lack all the traditional characteristics of judges and limitations on judicial power. They lack juries, both grand and petit, in all cases, even though effectively their inquiries and penalties are often criminal in nature. They engage in open-ended inquiries on their own initiative. They have inquisitorial power and powers to compel self-incrimination totally lacking in real courts, and they shift the burden of proof to the accused. They rarely or never permit knowledge of or cross-examination of accusers. They operate in secret without even any publication of proceedings or decisions (Hamburger quotes Coke on the danger of doing justice in “chambers, or other private places,” and that due process of law can only occur “openly in the king’s courts, whither all persons may resort.”). They effectively issue writs of assistance and general warrants. They illegitimately sub-delegate already illegitimately delegated judicial power. They do not exercise independent judgment, but rather implement the rules and desires of those who hire and pay them, and who made the regulations they are judging. And in the exercise of implementing that will, they extort and turn to under-the-table threats to encourage cooperation, frequently in order “to secure substantive constraints not authorized by a statute.” We see this today in CERCLA, OSHA, and most of the activities of the Department of Education, whose employees should all be fired yesterday. And, as Hamburger extensively documents, none of these problems are new. They are the exact same problems that occurred under prerogative rule by the English kings, and the solution was to forbid both exercises of prerogative power, both in its legislative and in its supporting judicial form.
In his third section, Hamburger turns to how the administrative state is not only outside the law, but above the law, as shown by the deference of the real judiciary to the administrative state’s abuses of the law, abuses that would not be countenanced by any other actor because of their extralegal nature. Again, Hamburger shows how this parallels the historical arc of prerogative law, in particular under James I, who most explicitly demanded not only the prerogative power outside regular law, but that his power not be reviewable by the courts, and therefore placed extreme pressure on the courts to defer to his own analysis of what was legal. In response, English judges asserted the supremacy of law, and these concepts were enshrined in the American systems—until wholly eroded by the administrative state. Nor does the right of appeal to the real judiciary cure these problems. In all actions, the real judiciary almost always “defers” both to the facts found by the executive administrative agency, to its interpretation of its own regulation, and, bizarrely, to its interpretation of the underlying legislative acts pursuant to which regulations are enacted.
In the book’s fourth section, Hamburger addresses consolidated power. This is a more difficult concept; Hamburger uses the term “consolidated power” to mean a form of absolutism, analogous to medieval concepts of all power arising and flowing from the monarch. In reaction, America (and much of the West) over the centuries adopted specialized, divided power systems, reflecting the fragmented nature of modern life and reacting to the dangers of consolidated power. These divided power systems are generally regarded, with good reason, as the structural foundations of our freedoms. Administrative law restores the old vision while pretending to maintain the new.
Hamburger analyzes consolidated power as unspecialized, undivided and unrepresentative. As to unspecialized and undivided, he means it eliminates the requirement for separation of branches and destroys the separation of powers. Unified powers were viewed with something between distaste and horror by republican thinkers, both American and foreign, at the time of the creation of the American systems. At the time, the negative example often offered was the despotic rule of the Ottoman Sultan; Hamburger also offers the interesting historical analogy of the Rump Parliament. Unified power destroys the slower deliberation, negotiation, and compromise built by choice into a divided system. It allows the government to create multiple avenues to achieve a desired goal, most of them extralegal. Furthermore, unified power necessarily means conflicts of interest, particularly among the fake judiciary of the administrative agencies, where ideological commitment and lack of independence preclude any type of neutral judgment. Accountability is not a cure; even if the administrative state were accountable to the people (which it is not), concentrations of power were and should be viewed as inherently pernicious, among other reasons because subjects can be better forced to comply with extralegal demands by an arm of government that can substitute one power for another, such as “by threatening prosecutions to get compliance with irregular legislation done through mere guidance.” Hamburger might also have used the example of the Obama administration extorting billions of dollars of settlements from banks supposedly responsible for the 2008 financial crisis, with hundreds of millions of those dollars being required to be paid to extremist, gangster-like pressure groups with which Obama was aligned and which were operated by cronies of his administration.
As to unrepresentative, Hamburger quotes Elena Kagan on the notice-and-comment process being a “charade.” Nobody really thinks that administrative law has anything to do with democracy; it is a tool of the elite, who know better, and know they know better, to impose their will in order to avoid the democratic process. Or, as Obama put it, “I have a phone and a pen”—that is, he does not need to actually involve the people’s representatives to impose his superior will. Nor are administrative agencies ever made representative by being accountable. None are ever punished for any action, even crimes, even by losing their jobs. Witness the promotion, not demotion, of top IRS officials who actively attempted to suppress conservative votes by criminally persecuting conservative not-for-profits—although Hamburger, who is strictly non-partisan in his presentation, does not mention this or other inflammatory episodes, or any modern politician at all.
Hamburger turns to an examination of the Continental, civil law (or “civilian”) roots of modern American administrative law, with a focus on the famous Prussian scholarship and system of administrative law, the Rechtsstaat, which systematized prerogative law in an attempt to control it, while simultaneously legitimizing it and recognizing a theoretically unified will of the state and people—the opposite of the route taken in England. He adds this section as background for the historical roots of American Progressive thought, of Woodrow Wilson and others, showing that they did not create the American administrative state as a deliberate attempt to restore English prerogative law, but rather in order import new, sophisticated, fashionable concepts from the Continent. The effect, though, was the same—the creation of a new, unlawful form of governance.
Hamburger closes by examining various arguments as to why the administrative state should not be dismantled forthwith. All are found wholly wanting. The administrative state is unlawful; moreover, its continued soft despotism will ultimately encourage bad things: “Absolute power is dangerous in all societies, but in a free society, it is dangerous not only because of what it imposes but also because of what it is apt to provoke.” Perhaps the administrative state should be dismantled slowly, rather than quickly, transferring any necessary exercises of power directly to Congress and the judiciary. Perhaps lower court judges should begin aggressively criticizing the administrative state, while remaining bound by higher court decisions. Perhaps some other political action is necessary—specific recommendations are really not what Hamburger offers. Instead, he offers the intellectual reasoning to support political action.
Other than simply dismantling the administrative state, I think there are some other actions that might be helpful. My personal favorite, on which Hamburger touches, is to return to a system where any executive agent of the government can be sued personally. This liability used to be universal in America, until as part of the expansion of the administrative state such suits were functionally eliminated. As Hamburger notes, “While suits were still possible against executive officers, they tended to lean toward the safety of lawful conduct—indeed, they tended to confine themselves to what was clearly within the law.” The current system of effective total immunity for all government agents, in particular all agents of the administrative state, makes officials acting on behalf of the executive a privileged class, immune “from the tort and property laws that apply to other Americans.”
Therefore, immunity for all members of the executive branch should be abolished (including for administrative law “judges”), except perhaps for prosecutors, and there immunity should still be sharply limited. Ending immunity would go a long way to ending the abuses of the administrative state, even if the actual structure of the administrative state remained. Nor should any type of indemnification or defense by the government of its employees be available; such lawsuits should be required to be defended by the government agent personally with his own money, or with insurance bought by him from a private source. To prevent abusive lawsuits, the English Rule (fee-shifting to the prevailing party) should simultaneously be instituted. When I’m President, I’m going to do this as my first act! That’ll really make America great again—or at least help.
[Review continued as first comment.]
This is a very dense book—clear, but dense. While a non-lawyer could read it profitably, my guess is that he would find it difficult to follow, and would struggle with some concepts that Hamburger assumes the reader knows. These include items such as the historical difference between courts of law and courts of equity, the difference between common law and civil law, and the Constitution’s “necessary and proper” clause. Moreover, Hamburger generally assumes the reader understands the mechanics of today’s administrative law. I don’t think Hamburger could have written differently without making the book far too long, but it is unfortunate, because given left-wing dominance of the legal academy and profession, most of the author’s wisdom and insight will be like casting seed on barren ground. If you are a legal positivist, and believe in using the law to achieve so-called social justice, you do not care whether administrative law is unlawful, or, for that matter, about the law at all—you only care about desired results, and you will snicker at this book. Such people only understand power, and care nothing for the history and reasoning in this book, which focuses on what is lawful in the American system as it was set up and originally understood.
This means the core audience for this book is a small group of open-minded people with legal training, as well as those already opposed to the current tyrannical structure of administrative law. Presumably the author hopes that his book will offer intellectual ammunition to this intellectual elite in the wars to come. And perhaps this small audience is all that matters. With the possible shift in American power in November 2016, and the possible rescue of the Supreme Court from legal positivist dominance, if Hamburger’s book only convinces and reinforces a small group of key academics and judges, it may ultimately have significant influence that cannot be directly perceived.
I’ve been aware of the general parameters of administrative law for a long time (I even took a class in administrative law from Cass Sunstein, one of the modern giants of administrative law and recent head of OIRA), and while I’ve always been vaguely aware of certain major problems it creates for modern America, it is only recently that I have realized that administrative law is perhaps the central governance problem of our time. The creation of the “administrative state,” which really governs America and is both detached from and in opposition to democratic government, accountability, and the opinions of most of America, has greatly changed how our government works, or rather changed it from “our government” to “our governors.” But few realize or understand this, so into this knowledge gap has stepped Hamburger, out to prove that administrative law is “unlawful”—that is, it is incompatible with the deep structures of American law, and therefore it should be curbed, or, preferably, destroyed.
Much of this book is a history book, where the history is continuously tied to elements of the author’s thesis. The key premise of the author is that, contrary to general perception, administrative law is not new, nor is it a response to modern conditions. Instead, it is a “repeated phenomenon”—a rebirth of the prerogative power claimed again and again by English monarchs, with varying degrees of success, until the execution of Charles I destroyed any such claim, and English common law clearly and permanently rejected prerogative law and established the supremacy of Parliament.
Prerogative law was “absolute power,” but that did not imply a negation of law, rather it implied “an alternative mechanism for exercising control.” The principles underlying this rejection of prerogative law were deliberately and openly imported into American law, both on the state and federal levels. Colonial Americans, and those following for more than a hundred years, made repeated, explicit references to the need to avoid monarchical prerogative rule, law that was outside of and above legislative law, and to ensure that power was divided and specialized, to prevent the resurgence of this alternate mechanism of political control. Hamburger’s key thesis is that despite these efforts to structurally prevent the resurgence of prerogative rule, we have functionally returned to the days of Henry VIII, with the executive administrative state largely assuming the role of the monarch.
Hamburger begins by introducing his conceptual framework. For Hamburger, the key power is the power to constrain or bind the public (or, in Hamburger’s term, “subjects”—meaning those subject to the law, not used in a polemical sense). This power in the American framework was, until modern times, always confined to the legislature and the judiciary, with only the legislature having any role in creating new methods of binding. The role of the executive was solely to implement the administration of such binding edicts, including decisions such as who receives certain benefits—but never, except with respect to a very narrow set of questions involving borders and related affairs, to constrain or bind the public on its own initiative.
From this beginning, Hamburger attacks, in lengthy separate sections, administrative law as being extralegal legislation (that is, outside of law); extralegal adjudication; supralegal (that is, above the law) by virtue of being incorrectly deferred to by the judiciary; and consolidated (that is, eroding the key American legal structures of separation of powers and specialization of functions in the branches of government). Hamburger’s organizational structure is clear and coherent, and he follows it strictly, referencing topics belonging to other sections where necessary for explication or clarity.
Hamburger begins with analyzing administrative law as extralegal legislation. As with monarchical prerogative legislation, the entire point of administrative law is to evade the regular structures and processes of lawmaking. Sometimes, then and now, such evasion was authorized by the legislature, and justified “in terms of interpretation, judicial deference, and ultimately necessity.” Whether or not so authorized, Hamburger argues that the entire American system was designed precisely to absolutely prohibit such extralegal governance, instead requiring law, actions that bound or constrained subjects, to be created only by the legislature, which was forbidden from any delegation of its powers.
In his analysis, Hamburger first steps back to the 1539 Act of Proclamations, where Henry VIII most clearly demanded prerogative power, an Act repealed promptly upon Henry’s death. Hamburger traces this conflict through many subsequent interactions of king and Parliament, including judicial support and opposition, the development of the infamous Star Chamber as a vehicle for prerogative law, and the ultimate imposition of Parliamentary/constitutional supremacy in 1688. Hamburger notes various forms of prerogative rule beyond simple proclamations, including interpretations, regulations, and taxes. He traces how these were curbed by English common law, including through a rejection of claims of necessity (which, of course, was always imminent and yet also permanent—shades of today’s national security state). He expands the discussion to cover the suspending and dispensing powers claimed by English monarchs, which were rather the inverse of the power to bind, and notes (weaving the present into his narrative) how the modern administrative state similarly presumes to waive compliance with both statutory and regulatory law, despite the ultimate total English rejection of any such power outside of direct Parliamentary action, as well as its explicit rejection in American state and federal constitutional law. Finally, Hamburger itemizes the various ways in which regulations are made, primarily under the 1946 Administrative Procedure Act, ranging from formal rulemaking to the “guidance” so perniciously and so widely used by the Obama administration to evade the requirements of formal rulemaking. He also returns his focus to the modern use of waivers from regulations, which are, of course, merely the rejected executive suspending and dispensing powers rearing their heads again (he makes the distinction that while the legislature has the power to suspend the operation of a law as a whole, the very dangerous power to waive requirements, or dispense, in particular situations is not even granted to the legislature by the Constitution, and neither power can ever exist in the executive, within the framework of the Constitution). In sum, the modern administrative state has gotten everything the old English kings wanted, in that it governs wholly by the extralegal prerogative law utterly rejected by the framers of the American systems.
Hamburger then turns to extralegal adjudication, which buttresses extralegal legislation. “To enforce a system of extralegal power in a system of law, rulers must work through extralegal adjudication. The prerogative regime therefore relied on its prerogative courts, and these days the administrative regime relies on its administrative tribunals.” And those administrative tribunals, though they exercise near-plenary judicial power, lack all the traditional characteristics of judges and limitations on judicial power. They lack juries, both grand and petit, in all cases, even though effectively their inquiries and penalties are often criminal in nature. They engage in open-ended inquiries on their own initiative. They have inquisitorial power and powers to compel self-incrimination totally lacking in real courts, and they shift the burden of proof to the accused. They rarely or never permit knowledge of or cross-examination of accusers. They operate in secret without even any publication of proceedings or decisions (Hamburger quotes Coke on the danger of doing justice in “chambers, or other private places,” and that due process of law can only occur “openly in the king’s courts, whither all persons may resort.”). They effectively issue writs of assistance and general warrants. They illegitimately sub-delegate already illegitimately delegated judicial power. They do not exercise independent judgment, but rather implement the rules and desires of those who hire and pay them, and who made the regulations they are judging. And in the exercise of implementing that will, they extort and turn to under-the-table threats to encourage cooperation, frequently in order “to secure substantive constraints not authorized by a statute.” We see this today in CERCLA, OSHA, and most of the activities of the Department of Education, whose employees should all be fired yesterday. And, as Hamburger extensively documents, none of these problems are new. They are the exact same problems that occurred under prerogative rule by the English kings, and the solution was to forbid both exercises of prerogative power, both in its legislative and in its supporting judicial form.
In his third section, Hamburger turns to how the administrative state is not only outside the law, but above the law, as shown by the deference of the real judiciary to the administrative state’s abuses of the law, abuses that would not be countenanced by any other actor because of their extralegal nature. Again, Hamburger shows how this parallels the historical arc of prerogative law, in particular under James I, who most explicitly demanded not only the prerogative power outside regular law, but that his power not be reviewable by the courts, and therefore placed extreme pressure on the courts to defer to his own analysis of what was legal. In response, English judges asserted the supremacy of law, and these concepts were enshrined in the American systems—until wholly eroded by the administrative state. Nor does the right of appeal to the real judiciary cure these problems. In all actions, the real judiciary almost always “defers” both to the facts found by the executive administrative agency, to its interpretation of its own regulation, and, bizarrely, to its interpretation of the underlying legislative acts pursuant to which regulations are enacted.
In the book’s fourth section, Hamburger addresses consolidated power. This is a more difficult concept; Hamburger uses the term “consolidated power” to mean a form of absolutism, analogous to medieval concepts of all power arising and flowing from the monarch. In reaction, America (and much of the West) over the centuries adopted specialized, divided power systems, reflecting the fragmented nature of modern life and reacting to the dangers of consolidated power. These divided power systems are generally regarded, with good reason, as the structural foundations of our freedoms. Administrative law restores the old vision while pretending to maintain the new.
Hamburger analyzes consolidated power as unspecialized, undivided and unrepresentative. As to unspecialized and undivided, he means it eliminates the requirement for separation of branches and destroys the separation of powers. Unified powers were viewed with something between distaste and horror by republican thinkers, both American and foreign, at the time of the creation of the American systems. At the time, the negative example often offered was the despotic rule of the Ottoman Sultan; Hamburger also offers the interesting historical analogy of the Rump Parliament. Unified power destroys the slower deliberation, negotiation, and compromise built by choice into a divided system. It allows the government to create multiple avenues to achieve a desired goal, most of them extralegal. Furthermore, unified power necessarily means conflicts of interest, particularly among the fake judiciary of the administrative agencies, where ideological commitment and lack of independence preclude any type of neutral judgment. Accountability is not a cure; even if the administrative state were accountable to the people (which it is not), concentrations of power were and should be viewed as inherently pernicious, among other reasons because subjects can be better forced to comply with extralegal demands by an arm of government that can substitute one power for another, such as “by threatening prosecutions to get compliance with irregular legislation done through mere guidance.” Hamburger might also have used the example of the Obama administration extorting billions of dollars of settlements from banks supposedly responsible for the 2008 financial crisis, with hundreds of millions of those dollars being required to be paid to extremist, gangster-like pressure groups with which Obama was aligned and which were operated by cronies of his administration.
As to unrepresentative, Hamburger quotes Elena Kagan on the notice-and-comment process being a “charade.” Nobody really thinks that administrative law has anything to do with democracy; it is a tool of the elite, who know better, and know they know better, to impose their will in order to avoid the democratic process. Or, as Obama put it, “I have a phone and a pen”—that is, he does not need to actually involve the people’s representatives to impose his superior will. Nor are administrative agencies ever made representative by being accountable. None are ever punished for any action, even crimes, even by losing their jobs. Witness the promotion, not demotion, of top IRS officials who actively attempted to suppress conservative votes by criminally persecuting conservative not-for-profits—although Hamburger, who is strictly non-partisan in his presentation, does not mention this or other inflammatory episodes, or any modern politician at all.
Hamburger turns to an examination of the Continental, civil law (or “civilian”) roots of modern American administrative law, with a focus on the famous Prussian scholarship and system of administrative law, the Rechtsstaat, which systematized prerogative law in an attempt to control it, while simultaneously legitimizing it and recognizing a theoretically unified will of the state and people—the opposite of the route taken in England. He adds this section as background for the historical roots of American Progressive thought, of Woodrow Wilson and others, showing that they did not create the American administrative state as a deliberate attempt to restore English prerogative law, but rather in order import new, sophisticated, fashionable concepts from the Continent. The effect, though, was the same—the creation of a new, unlawful form of governance.
Hamburger closes by examining various arguments as to why the administrative state should not be dismantled forthwith. All are found wholly wanting. The administrative state is unlawful; moreover, its continued soft despotism will ultimately encourage bad things: “Absolute power is dangerous in all societies, but in a free society, it is dangerous not only because of what it imposes but also because of what it is apt to provoke.” Perhaps the administrative state should be dismantled slowly, rather than quickly, transferring any necessary exercises of power directly to Congress and the judiciary. Perhaps lower court judges should begin aggressively criticizing the administrative state, while remaining bound by higher court decisions. Perhaps some other political action is necessary—specific recommendations are really not what Hamburger offers. Instead, he offers the intellectual reasoning to support political action.
Other than simply dismantling the administrative state, I think there are some other actions that might be helpful. My personal favorite, on which Hamburger touches, is to return to a system where any executive agent of the government can be sued personally. This liability used to be universal in America, until as part of the expansion of the administrative state such suits were functionally eliminated. As Hamburger notes, “While suits were still possible against executive officers, they tended to lean toward the safety of lawful conduct—indeed, they tended to confine themselves to what was clearly within the law.” The current system of effective total immunity for all government agents, in particular all agents of the administrative state, makes officials acting on behalf of the executive a privileged class, immune “from the tort and property laws that apply to other Americans.”
Therefore, immunity for all members of the executive branch should be abolished (including for administrative law “judges”), except perhaps for prosecutors, and there immunity should still be sharply limited. Ending immunity would go a long way to ending the abuses of the administrative state, even if the actual structure of the administrative state remained. Nor should any type of indemnification or defense by the government of its employees be available; such lawsuits should be required to be defended by the government agent personally with his own money, or with insurance bought by him from a private source. To prevent abusive lawsuits, the English Rule (fee-shifting to the prevailing party) should simultaneously be instituted. When I’m President, I’m going to do this as my first act! That’ll really make America great again—or at least help.
[Review continued as first comment.]
June 14, 2016
In this book, Columbia Law Professor Philip Hamburger makes some large and, some might say, outlandish claims. He argues that most of the administrative law as we know it, from its administrative law judges to its independent commissions to its notice-and-comment rulemaking to its informal adjudications, is forbidden by the U.S. Constitution. Many conservative lawyers, going back to Harvard's Roscoe Pound, have made this argument before, largely on the argument that such structures are "innovations" unmentioned in the Constitution. What Hamburger shows, by contrast, is that the Constitution was created precisely to inhibit the rise of such administrative power. He shows that the old "prerogative" king's courts, such as the High Commission and the Star Chamber, that English and American revolutionaries attacked, exhibited all the attributes of modern administration. These courts proposed their own rules, investigated their own cases, and tried their own crimes. They were unbound by an independent judiciary, but always subservient to the executive. They denied the right to trial by jury, the right against self-incrimination, the need to declare a charge before trying a case, to the presumption of innocence, to the need for a warrant, and so on. The analogies to modern practices are clear and disturbing, and Hamburger shows that these abuses were prime causes of the English revolutions in 1640 and 1688, and then of the American Revolution itself. The main argument is that administrative law is not new, in fact it's much older than the Bill of Rights, which tried to prevent it.
Hamburger knows many defenders of the administrative state have pointed to early American commissions and administrators, such as those that granted public lands, or distributed military pensions, and their discretionary power, to demonstrate the continuity of administrative law in American history. Yet he convincingly demonstrates that early Americans made a sharp distinction behind "binding" administration, and administration in the granting of benefits, such as land or pensions. In early America only the legislature could "bind" subjects with rules and regulations, and administrators and officers had no authority outside law to bind someone for a moment. Executive officials were in fact liable to be sued by the public, personally, for any deviation from legislative enactments.
As if to demonstrate just how threatening this book is, Adrian Vermeule, a noted Harvard law professor, wrote an excoriating and largely ad hominen attack on Hamburger, claiming he was "childish" and his book nothing but "dystopian constitutional fiction." Nothing did more to convince me of the righteous of Hamburger's course than such extremist attacks. If the administrative state's defenders can only denigrate their attacker, Hamburger must be on to something. Of course at times Hamburger overstates his case, and the book can meander endlessly, sometimes with no seeming structure at all, but mostly Hamburger makes a well-supported argument that must be answered. On the whole, this is an amazing and thought-provoking book, one that would have been even greater with an amazing editor.
Hamburger knows many defenders of the administrative state have pointed to early American commissions and administrators, such as those that granted public lands, or distributed military pensions, and their discretionary power, to demonstrate the continuity of administrative law in American history. Yet he convincingly demonstrates that early Americans made a sharp distinction behind "binding" administration, and administration in the granting of benefits, such as land or pensions. In early America only the legislature could "bind" subjects with rules and regulations, and administrators and officers had no authority outside law to bind someone for a moment. Executive officials were in fact liable to be sued by the public, personally, for any deviation from legislative enactments.
As if to demonstrate just how threatening this book is, Adrian Vermeule, a noted Harvard law professor, wrote an excoriating and largely ad hominen attack on Hamburger, claiming he was "childish" and his book nothing but "dystopian constitutional fiction." Nothing did more to convince me of the righteous of Hamburger's course than such extremist attacks. If the administrative state's defenders can only denigrate their attacker, Hamburger must be on to something. Of course at times Hamburger overstates his case, and the book can meander endlessly, sometimes with no seeming structure at all, but mostly Hamburger makes a well-supported argument that must be answered. On the whole, this is an amazing and thought-provoking book, one that would have been even greater with an amazing editor.
May 15, 2021
If you come for the king, you better kill him. If this were the best the anti—administrative staters could do (and mind you, I don’t think it is), I’d guess the answer to the titular question is no. As someone who is basically predisposed to like this kind of stuff, I thought this was basically propaganda. It’s a pleasant enough read, but packed full of logical fallacies and motivated interpretation of evidence. The general spirit seems to be: if it existed in England and I like it, it’s part of the rule of law; if I didn’t like it, the founders were trying to change it.
January 2, 2023
https://beingbeliefbehavior.blogspot....
I have to love the name. Hamburger is very American!
The Hamburger in this case is no joke at all. A Juris Doctor (highest degree in law) from Yale, now a law professor at Columbia and noted author of a number of books, articles, and recipient of prestigious awards. You likely have never heard of him because what he writes about clearly and unambiguously makes a nearly irrefutable case that we are subjects, not citizens, with our rulers having absolute power.
How is that possible? Because the approved media and educational system narrative is that it is not possible for a "modern technological society" to be governed by citizens of a republic. Our betters find the very idea of separation of powers with a judicial system that enforces the separation through application of a written constitution to be "impossible". (the book lets you know it is fairly easily possible, just not desirable for our rulers),
I seem to be on a tear of reading deep and difficult works for some reason lately. This one is no exception, although well written. Five hundred page, fairly small print, and over 100 pages of notes is not to be trifled with. If we are to return to being a Constitutional Republic, something over a majority need to understand some of these truths that are not so "self evident", but critical to any that want to return to being citizens rather than subjects.
A shorter (and likely better) review of the book that I quote from in this post is here.
In the 1500s (and before), the application of absolute power was supposedly required because of "emergency" (like a "crisis" ... Covid, Climate Change, gun violence, etc, etc).
Those who remain skeptical might consider one of Hamburger’s examples. He discusses the 1539 Act of Proclamations enacted by a cowed Parliament at Henry VIII’s insistence. The Act authorized the king to “set forth…proclamations, under such penalties and pains” as might be thought “necessary and requisite” by the king and his council. These proclamations “shall be obeyed, observed, and kept as though they were made by act of Parliament.”
If you have to go around Parliament and Congress from time to time, perhaps the "time" should be perpetually NOW. One of our current ruling class has a definite handle on the importance of the passage of time. We should all be thankful that we are subjects to the brilliance of our betters through Administrative Law ... they have it together!
The thesis of the book is simple:
His thesis, in a nutshell, comes to this: the Constitution contemplates only two kinds of edicts that may bind citizens—rules enacted by Congress, and orders issued by duly authorized courts. Administrative edicts, by contrast, seek to bind citizens by commands that are neither legislatively enacted nor judicially decreed. They are, strictly speaking, lawless.
Perhaps (though I'm pessimistic) people will start to realize that we have been brainwashed by our "educational system" (indoctrination system), our media industrial complex (propaganda), and of course our entire Administrative/Deep State. The Deep State has now been politically weaponized to defend our rulers in the Democrat Deep State.
The linked review is more optimistic than I am. We both see the ACA as an example of the tragedy of the Administrative State, however since the linked review is from 2014, it appears my pessimism is more accurate than their admittedly tepid optimism.
The persistent, widespread, and increasing unpopularity of the Affordable Care Act may be an indicator of public exhaustion with the new regulatory paradigm. Despite early enthusiasm for health care “reform,” it gradually began to dawn on the public that a government plan to coordinate health care services all the way down, so to speak, is going to have a lot to say about when, where, how, and by whom you are treated, and for how long. And the government is not always going to say please and thank you as it steers citizens into mandated health care chutes. Despite repeated promises by politicians from the president on down, it turns out that large numbers of people will not be able to keep their previous health plan or doctors. And their new insurance policies in all probability will cost them more—considerably more.
I take a shot at making this simpler and more personal in this recent post.
As the book repeats multiple times, our courts including the SCOTUS have decided it is almighty precedent that requires deference to the Administrative State, and Obama Care is a nasty example.
A quote from the book by way of the review summarizes what has happened rather nicely.
The history of government is largely a story of elite power and popular subservience. Americans, however, turned this old model upside down. By establishing a republican form of government, they eventually made themselves masters and made their lawmakers their servants. More than two centuries later, the shell of this republican experiment remains. Within it, however, another government has arisen, in which new masters once again assert themselves, issuing commands as if they were members of a ruling class, and as if the people were merely their servants. Self-government thus has given way to a system of submission.
Optimists honestly thought that the Covid authoritarian lockdowns, lies, destruction of our economy and educational system would wake up the population and draw them away from Netflix, social media, and general mindless entertainment to throw the bums out. To the extent 2022 was an "election" it shows that was either a false hope, or that a serf thinking that an "election" run by the ruling class is going to free them from their servility is deluded.
You probably started reading this thinking you were a citizen, welcome to being a subject!
I have to love the name. Hamburger is very American!
The Hamburger in this case is no joke at all. A Juris Doctor (highest degree in law) from Yale, now a law professor at Columbia and noted author of a number of books, articles, and recipient of prestigious awards. You likely have never heard of him because what he writes about clearly and unambiguously makes a nearly irrefutable case that we are subjects, not citizens, with our rulers having absolute power.
How is that possible? Because the approved media and educational system narrative is that it is not possible for a "modern technological society" to be governed by citizens of a republic. Our betters find the very idea of separation of powers with a judicial system that enforces the separation through application of a written constitution to be "impossible". (the book lets you know it is fairly easily possible, just not desirable for our rulers),
I seem to be on a tear of reading deep and difficult works for some reason lately. This one is no exception, although well written. Five hundred page, fairly small print, and over 100 pages of notes is not to be trifled with. If we are to return to being a Constitutional Republic, something over a majority need to understand some of these truths that are not so "self evident", but critical to any that want to return to being citizens rather than subjects.
A shorter (and likely better) review of the book that I quote from in this post is here.
In the 1500s (and before), the application of absolute power was supposedly required because of "emergency" (like a "crisis" ... Covid, Climate Change, gun violence, etc, etc).
Those who remain skeptical might consider one of Hamburger’s examples. He discusses the 1539 Act of Proclamations enacted by a cowed Parliament at Henry VIII’s insistence. The Act authorized the king to “set forth…proclamations, under such penalties and pains” as might be thought “necessary and requisite” by the king and his council. These proclamations “shall be obeyed, observed, and kept as though they were made by act of Parliament.”
If you have to go around Parliament and Congress from time to time, perhaps the "time" should be perpetually NOW. One of our current ruling class has a definite handle on the importance of the passage of time. We should all be thankful that we are subjects to the brilliance of our betters through Administrative Law ... they have it together!
The thesis of the book is simple:
His thesis, in a nutshell, comes to this: the Constitution contemplates only two kinds of edicts that may bind citizens—rules enacted by Congress, and orders issued by duly authorized courts. Administrative edicts, by contrast, seek to bind citizens by commands that are neither legislatively enacted nor judicially decreed. They are, strictly speaking, lawless.
Perhaps (though I'm pessimistic) people will start to realize that we have been brainwashed by our "educational system" (indoctrination system), our media industrial complex (propaganda), and of course our entire Administrative/Deep State. The Deep State has now been politically weaponized to defend our rulers in the Democrat Deep State.
The linked review is more optimistic than I am. We both see the ACA as an example of the tragedy of the Administrative State, however since the linked review is from 2014, it appears my pessimism is more accurate than their admittedly tepid optimism.
The persistent, widespread, and increasing unpopularity of the Affordable Care Act may be an indicator of public exhaustion with the new regulatory paradigm. Despite early enthusiasm for health care “reform,” it gradually began to dawn on the public that a government plan to coordinate health care services all the way down, so to speak, is going to have a lot to say about when, where, how, and by whom you are treated, and for how long. And the government is not always going to say please and thank you as it steers citizens into mandated health care chutes. Despite repeated promises by politicians from the president on down, it turns out that large numbers of people will not be able to keep their previous health plan or doctors. And their new insurance policies in all probability will cost them more—considerably more.
I take a shot at making this simpler and more personal in this recent post.
As the book repeats multiple times, our courts including the SCOTUS have decided it is almighty precedent that requires deference to the Administrative State, and Obama Care is a nasty example.
A quote from the book by way of the review summarizes what has happened rather nicely.
The history of government is largely a story of elite power and popular subservience. Americans, however, turned this old model upside down. By establishing a republican form of government, they eventually made themselves masters and made their lawmakers their servants. More than two centuries later, the shell of this republican experiment remains. Within it, however, another government has arisen, in which new masters once again assert themselves, issuing commands as if they were members of a ruling class, and as if the people were merely their servants. Self-government thus has given way to a system of submission.
Optimists honestly thought that the Covid authoritarian lockdowns, lies, destruction of our economy and educational system would wake up the population and draw them away from Netflix, social media, and general mindless entertainment to throw the bums out. To the extent 2022 was an "election" it shows that was either a false hope, or that a serf thinking that an "election" run by the ruling class is going to free them from their servility is deluded.
You probably started reading this thinking you were a citizen, welcome to being a subject!
December 19, 2017
A magisterial, haunting, yet eminently readable account of the reincarnation of absolute power through the administrative state.
January 13, 2023
He makes good points, but this is just way too granular.
Read
July 21, 2025* **Central Thesis:**
Philip Hamburger argues that modern administrative law is fundamentally unlawful because it conflicts with the principles of constitutional government and the rule of law. He contends that administrative agencies wield power that is both excessive and unconstitutional.
* **Historical Context:**
* The book traces the development of administrative law from the English common law tradition, emphasizing how historically, administrative power was limited and subject to judicial oversight.
* It contrasts early government frameworks, where administrative officials had limited authority, with modern administrative agencies that combine legislative, executive, and judicial functions.
* **Core Arguments:**
* Administrative agencies violate the separation of powers by exercising lawmaking, adjudication, and enforcement simultaneously, a role reserved by the Constitution to separate branches.
* This concentration of power undermines individual rights and the rule of law because agencies are not sufficiently accountable to the public or courts.
* The rise of administrative law represents a deviation from the founding principles of constitutional government, leading to unchecked bureaucracy.
* **Examples and Cases:**
* Hamburger discusses specific agencies and their practices, such as regulatory enforcement without proper judicial procedures or legislative authorization.
* The book highlights examples where courts have deferred excessively to agency interpretations, which, according to Hamburger, exacerbates the unlawful expansion of administrative power.
* **Consequences:**
* The growth of administrative law has resulted in a “state within a state” where agencies govern without proper constitutional checks.
* This dynamic threatens civil liberties, property rights, and democratic accountability.
* **Proposed Remedy:**
* The author calls for a return to constitutional limits on government power, including stricter judicial review of administrative actions and reinvigoration of legislative and executive accountability.
---
### Tone and Writing Style
* The tone is **formal** and **scholarly**, with a methodical and precise argumentation style.
* The writing is dense but carefully structured, aiming to build a rigorous legal and historical case.
* This style supports the content by appealing to legal scholars, practitioners, and policymakers, reinforcing the book’s credibility and depth of research.
---
### Author’s Qualifications
* Philip Hamburger is a professor of law with expertise in constitutional law, administrative law, and legal history.
* His background in both historical legal scholarship and contemporary constitutional theory allows him to critically analyze the evolution of administrative law with authority.
* His qualifications enhance the theme by providing a thorough and historically grounded critique of administrative power’s legality under constitutional principles.
Philip Hamburger argues that modern administrative law is fundamentally unlawful because it conflicts with the principles of constitutional government and the rule of law. He contends that administrative agencies wield power that is both excessive and unconstitutional.
* **Historical Context:**
* The book traces the development of administrative law from the English common law tradition, emphasizing how historically, administrative power was limited and subject to judicial oversight.
* It contrasts early government frameworks, where administrative officials had limited authority, with modern administrative agencies that combine legislative, executive, and judicial functions.
* **Core Arguments:**
* Administrative agencies violate the separation of powers by exercising lawmaking, adjudication, and enforcement simultaneously, a role reserved by the Constitution to separate branches.
* This concentration of power undermines individual rights and the rule of law because agencies are not sufficiently accountable to the public or courts.
* The rise of administrative law represents a deviation from the founding principles of constitutional government, leading to unchecked bureaucracy.
* **Examples and Cases:**
* Hamburger discusses specific agencies and their practices, such as regulatory enforcement without proper judicial procedures or legislative authorization.
* The book highlights examples where courts have deferred excessively to agency interpretations, which, according to Hamburger, exacerbates the unlawful expansion of administrative power.
* **Consequences:**
* The growth of administrative law has resulted in a “state within a state” where agencies govern without proper constitutional checks.
* This dynamic threatens civil liberties, property rights, and democratic accountability.
* **Proposed Remedy:**
* The author calls for a return to constitutional limits on government power, including stricter judicial review of administrative actions and reinvigoration of legislative and executive accountability.
---
### Tone and Writing Style
* The tone is **formal** and **scholarly**, with a methodical and precise argumentation style.
* The writing is dense but carefully structured, aiming to build a rigorous legal and historical case.
* This style supports the content by appealing to legal scholars, practitioners, and policymakers, reinforcing the book’s credibility and depth of research.
---
### Author’s Qualifications
* Philip Hamburger is a professor of law with expertise in constitutional law, administrative law, and legal history.
* His background in both historical legal scholarship and contemporary constitutional theory allows him to critically analyze the evolution of administrative law with authority.
* His qualifications enhance the theme by providing a thorough and historically grounded critique of administrative power’s legality under constitutional principles.
August 11, 2016
Most Americans chafe at the intrusiveness of government at one time or another. From the inconvenience and indifference of the DMV, the micro-management of OSHA, the job killing strictures of the EPA, the credit killing regulations of Dodd-Frank, to the politically correct straight jacket of Title Nine, we are all aware of the gradual erosion of our liberty at the hands of government.
Professor Philip Hamburger of Columbia Law School has written Is Administrative Law Unlawful?, a book which looks directly at this problem, which traces its origins, the arguments used to justify it, the impact it has had on our politics. Unfortunately it’s worse than we think.
Hamburger expresses the problem in concise terms,
“The history of government is largely a story of elite power and popular subservience. Americans, however, turned this old model upside down. By establishing a republican form of government, they eventually made themselves masters and their lawmakers their servants. More than two centuries later, the shell of this republican experiment remains. Within it, however, another government has arisen, in which new masters once again assert themselves, issuing commands as if they were members of a ruling class, and as if the people were merely their servants. Self-government thus has given way to a system of submission.”
The book is equal parts history and finely reasoned analysis and argument, with an important touch of sociology and psychology. It describes the historical “prerogative” essentially the absolute power of kings and the thousand year long struggle in England to restrict that power, using English common law, tradition, and occasional revolution.
Hamburger characterizes the writing of the US founding documents as the achievement of liberty over government, by recognizing that individuals possess rights endowed by their creator, that government enjoys power only at the consent of the governed. He describes the US Constitution as the ultimate accomplishment of a millennium of Anglo-American political thought and action. With checks and balances, separation of powers into separate branches, limitation of powers to enumerated powers, reservation of all other powers to the states and the people, the Constitution was the perfect manifestation of the American political personality.
Hamburger then describes how things went wrong, how our system was undermined. He notes that each time there was an expansion of suffrage in America; the existing elites attempt to undermine the concept of consensual government. In the 1880’s after waves of immigration from Ireland and southern and eastern Europe, the movement which we know as the modern progressive movement began to have traction.
Prof Hamburger, “Rather than seek popular power, many early advocates of administrative power wanted popular support for a sort of elite power. In the 1880’s Woodrow Wilson believed that ‘[t]he most despotic of governments under the control of wise statesmen is preferable to the freest ruled by demagogues.’”
Sound familiar?
The method used to undermine consensual government was administration, the use of government agencies to use “expertise and efficiency” to solve societal problems and regulate societal behavior beyond the ability of the political process to handle. Agencies write the rules, investigate violations of the rules, hold hearings to judge violations, determine guilt, and hand out penalties. Legislator, investigator, policeman, prosecutor, judge, jury and executioner. No wonder the process is so efficient.
The development and concentration of administrative power was a long gradual process. It was aided by the efforts of the academy, US colleges and universities, which provided intellectual justification for government to overreach its constitutional boundaries. In doing so, US academics were following a centuries-long pattern; from the middle ages, academics would provide an intellectual veneer for a sovereign to violate law and subjugate their populations. In doing so, the academics would establish their own importance and gain power and patronage.
It is ironic that Professor Hamburger’s institution, Columbia, was a leader in justifying administrative undermining of the Constitution during the early progressive era in the late nineteenth and early twentieth centuries.
An important milestone in this academic program was the establishment in 1916 of Washington’s first think tank, the Institute for Government Research, soon renamed the Brookings Institution, which provided voluminous research designed to promote “scientific” and administrative “efficiency” and ultimately to undermine the separation of powers and the constitution.
Some things never change.
Professor Hamburger spends great effort demolishing the various justifications that the proponents of administrative law use to justify their usurpation of governmental power. He deals at length with the judicial abdication of the federal courts and the abject failure to correct the constitutional affront and violation which administrative law represents.
And Hamburger forcefully makes the point that soft tyranny is nonetheless still tyranny.
This is an important book. Even the most experienced political activist will be appalled at how outrageously, transparently unconstitutional is the entire federal agency edifice.
Read this book.
Give it to your congressman and senator and demand that they read it.
Hamburger surprisingly is an optimist and thinks things can change. But first we need to understand the problem and talk about it.
This is my start
Professor Philip Hamburger of Columbia Law School has written Is Administrative Law Unlawful?, a book which looks directly at this problem, which traces its origins, the arguments used to justify it, the impact it has had on our politics. Unfortunately it’s worse than we think.
Hamburger expresses the problem in concise terms,
“The history of government is largely a story of elite power and popular subservience. Americans, however, turned this old model upside down. By establishing a republican form of government, they eventually made themselves masters and their lawmakers their servants. More than two centuries later, the shell of this republican experiment remains. Within it, however, another government has arisen, in which new masters once again assert themselves, issuing commands as if they were members of a ruling class, and as if the people were merely their servants. Self-government thus has given way to a system of submission.”
The book is equal parts history and finely reasoned analysis and argument, with an important touch of sociology and psychology. It describes the historical “prerogative” essentially the absolute power of kings and the thousand year long struggle in England to restrict that power, using English common law, tradition, and occasional revolution.
Hamburger characterizes the writing of the US founding documents as the achievement of liberty over government, by recognizing that individuals possess rights endowed by their creator, that government enjoys power only at the consent of the governed. He describes the US Constitution as the ultimate accomplishment of a millennium of Anglo-American political thought and action. With checks and balances, separation of powers into separate branches, limitation of powers to enumerated powers, reservation of all other powers to the states and the people, the Constitution was the perfect manifestation of the American political personality.
Hamburger then describes how things went wrong, how our system was undermined. He notes that each time there was an expansion of suffrage in America; the existing elites attempt to undermine the concept of consensual government. In the 1880’s after waves of immigration from Ireland and southern and eastern Europe, the movement which we know as the modern progressive movement began to have traction.
Prof Hamburger, “Rather than seek popular power, many early advocates of administrative power wanted popular support for a sort of elite power. In the 1880’s Woodrow Wilson believed that ‘[t]he most despotic of governments under the control of wise statesmen is preferable to the freest ruled by demagogues.’”
Sound familiar?
The method used to undermine consensual government was administration, the use of government agencies to use “expertise and efficiency” to solve societal problems and regulate societal behavior beyond the ability of the political process to handle. Agencies write the rules, investigate violations of the rules, hold hearings to judge violations, determine guilt, and hand out penalties. Legislator, investigator, policeman, prosecutor, judge, jury and executioner. No wonder the process is so efficient.
The development and concentration of administrative power was a long gradual process. It was aided by the efforts of the academy, US colleges and universities, which provided intellectual justification for government to overreach its constitutional boundaries. In doing so, US academics were following a centuries-long pattern; from the middle ages, academics would provide an intellectual veneer for a sovereign to violate law and subjugate their populations. In doing so, the academics would establish their own importance and gain power and patronage.
It is ironic that Professor Hamburger’s institution, Columbia, was a leader in justifying administrative undermining of the Constitution during the early progressive era in the late nineteenth and early twentieth centuries.
An important milestone in this academic program was the establishment in 1916 of Washington’s first think tank, the Institute for Government Research, soon renamed the Brookings Institution, which provided voluminous research designed to promote “scientific” and administrative “efficiency” and ultimately to undermine the separation of powers and the constitution.
Some things never change.
Professor Hamburger spends great effort demolishing the various justifications that the proponents of administrative law use to justify their usurpation of governmental power. He deals at length with the judicial abdication of the federal courts and the abject failure to correct the constitutional affront and violation which administrative law represents.
And Hamburger forcefully makes the point that soft tyranny is nonetheless still tyranny.
This is an important book. Even the most experienced political activist will be appalled at how outrageously, transparently unconstitutional is the entire federal agency edifice.
Read this book.
Give it to your congressman and senator and demand that they read it.
Hamburger surprisingly is an optimist and thinks things can change. But first we need to understand the problem and talk about it.
This is my start
May 11, 2020
This is a book that makes plain errors about the English and American history it relies upon. I was not surprised to learn that the book has suffered withering criticism since its publication.
May 21, 2016
It is too early to be sure, but this has the potential to be a book that changes how I think about the world. I was already familiar with both the many abuses of power inherent in the administrative empire, and the very questionable basis by which Congress and the judiciary had acquiesced in its creation. But I had also accepted that there were situations which could not be handled other than by administrative agencies. And while I am practical in my approach, and incremental in my desired outcomes, I will never again accept that administrative rulemaking is a suitable means to those desirable ends. Some things are too dangerous to let out of Pandora's box, and rule by unelected and unaccountable bureaucracy is one of them. I don't expect to see that genie put back in the bottle, but after reading this book, I will be approaching future regulatory discussions from the principle of "How can this be done with generally applicable law, rather than case by case rulemaking". If you deal with regulatory agencies or rulemaking, I can't recommend this book strongly enough. It should be required reading.
March 24, 2016
How did our government morph from limited powers to bloated overreach? From rule of law to obedience to the state? "The U.S. Constitution could carefully erect its barriers to absolutism, but it could not prevent an increasingly dominant class from abandoning the Constitution and securing popular acquiescence in its exercise of precisely the power that Constitution most systematically prohibits."
I appreciate Hamburger's thorough study of the question posed in the title, which he resoundingly answers in the affirmative.
I admit to skipping through several chapters on the history of English law, where he traces the link between the development of kings' prerogative and current administrative power, only because I had a non-renewable interlibrary loan.
I appreciate Hamburger's thorough study of the question posed in the title, which he resoundingly answers in the affirmative.
I admit to skipping through several chapters on the history of English law, where he traces the link between the development of kings' prerogative and current administrative power, only because I had a non-renewable interlibrary loan.
November 30, 2023
The answer is yes, the reasons and history are explained. A very dry read of an extremely important topic, the major problem with our current government is our transition from a constitutional republic into a Prussians administrative states run by our “betters”
August 18, 2014
Fantastic. Please read it.
July 13, 2015
Great book with historical refernces.
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