Michael Seltzer

“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?

“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?

“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?

“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?