Is Administrative Law Unlawful? (Philip Hamburger)

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.

Hamburger’s book has occasioned various academic responses, most or all of which I’ve read, including those by Adrian Vermeule (and Hamburger’s response to Vermeule, which does a very nice job summarizing Hamburger’s book). Vermeule’s main complaint, along with a good deal of meandering, is that “unlawful” is not adequately defined. But it is entirely obvious to a reader of this book that “unlawful” means not merely against statute or constitutional law, but corrosive of the rule of law itself, and of our republican system. The administrative state “abandons rule through and under the law.” Anyway, there is no room here to discuss the back-and-forth of legal academics in response to this book, but the responses are worth reading, because they all reinforce that Hamburger is correct in his analysis and his conclusions.

Finally, I note that there are many possible avenues of attack on our current structure of administrative law, and Hamburger does not presume to cover them all, though he touches on many and some of his arguments could easily apply to non-legal attacks on administrative law. One could attack it on instrumentalist grounds—that is produces bad results, or empowers bad people. Or that is a tool of elite social control. Or, like Hayek, as a fool’s errand, for what Hamburger calls “epistemological arrogance.” But those are arguments for another day, and other books. This argument, on this day, sweeps the field.


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