Michael Seltzer

“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?

“The nature of news is likely to distort people’s view of the world because of a mental bug that the psychologists Amos Tversky and Daniel Kahneman called the Availability heuristic: people estimate the probability of an event or the frequency of a kind of thing by the ease with which instances come to mind.11”
― Steven Pinker, Enlightenment Now: The Case for Reason, Science, Humanism, and Progress

“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?