Michael Seltzer

“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?

“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?

“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?