Administrative law is unlawful. In fact, "Administrative law runs contrary to the very origin and nature of Anglo-American constitutional law." Is it wise to write such things in the ''Administrative Lawyer"?
Philip Hamburger presents his powerful if perhaps quixotic argument in "Is Administrative Law Unlawful?" (University of Chicago Press, 2014). Delving deeply into Anglo-American common law, Hamburger shows that troubling issues with administrative law and power are not new, and argues that the result of such an "extralegal" system is, as in the past, an alternate, parallel system of law which is not law but mere command which threatens the liberty established by the Constitution.
Hamburger's new book has been praised and damned along lines which readers can readily imagine. Nevertheless, "Is Administrative Law Unlawful?" is an important scholarly look at the legal, historical and intellectual foundations (or lack thereof) of administrative law. Hamburger provides ample background and reflection on important legal and social issues while wading into English and American legal history as well as German scholarship on the administrative state. A professor at Columbia Law School, Hamburger is also the author of "Separation of Church and State" (Harvard, 2002) and "Law and Judicial Duty" (Harvard, 2008).
The English struggle to limit executive extralegal power, exemplified in the Star Chamber and High Commission, extended over many centuries. American founders were keenly influenced by English constitutional law and history and drafted a Constitution meant to be the source of all government power, properly separated into equal branches while also attempting to exclude extralegal, supralegal and consolidated power. In American constitutions (state and federal), governments were to exercise legislative power through the acts of their legislatures, and judicial powers through the adjudications of their courts. The intent was that Americans only be bound through regular legislation and adjudication, not through executive acts (with certain exceptions).
If all legislative powers are vested in Congress such powers cannot be elsewhere. Yet administrative law, a fourth power not mentioned in the Constitution, has consolidated judicial, executive and legislative power. Americans are forced to comply not only with acts of Congress but with the acts of myriad agencies who engage in all sorts of "lawmaking;' including formal rulemaking, informal rulemaking, notice-and-comment interpretation, and the indefinite range of other sorts of lawmaking interpretation such as guidance, manuals, letter opinions, briefs, and waivers.
Formerly, Hamburger suggests, one could learn the law without consulting government. Now one must consult an agency for its interpretations of complex laws and rules and anticipate enforcement and other discretionary decisions of administrators. This may work well for interests able to employ sufficient lobbyists and lawyers, but it is daunting for individuals and small business. Agencies can be captured by powerful concerns and at the same time accustom an otherwise self-governing people to a regime of potentially pervasive control and "gradually deprive them of their capacity for self-rule."
Politicians and bureaucrats are both unpopular but "the beauty of elections is not only that the people can put legislators in Congress, but also that they can remove them." State administrators, however nice, intelligent and civic-minded they may be, are unrepresentative and largely unaccountable. This is not an accident. A purpose of the expanded administrative state has been to escape political patronage and in sulate law-making from retail politics and potential corruption, leaving civic-minded "experts" to run the country.
Insulating "good government" from public or political whim is and was a goal of what Hamburger calls "the knowledge class." The parallel expansion of the American electorate and the growth of the administrative state is remarkable. As representative government became more open to the people, whether in 1870, 1920, or 1965, legislative power moved away from the people and their representatives to unelected administrators. Some of the strongest advocates of progressive administrative reform disparaged democratic government where the "ignorant rule the enlightened." The more people who have the vote the more important it is that the country be kept on course by, and for, the "knowledge class." This attitude reflects in part the large role of German scholarship on American reformers. which often assumed that administration lay beyond the reach of constitutional law.
Hamburger strives to revive the nondelegalion doctrine, observing that administrative law is not a matter of delegation but of subdelegption. The people delegated power to their representatives.
The legislature, as the agent of the people, cannot subdelegate that power, as an agent cannot ordinarily subdelegate power to a subagent. Since the Constitution emphasizes that all legislative powers shall be vested in Congress, it expressly bars subdelegation. Even if subdelegation is proper in rulemaking, Congress itself has no power to waive or dispense with the obligation of law. Regulators are, or should be, equally powerless to waive law and regulation.
Federal administrative law undermines the federal character of the United States, using mere executive rules and interpretations to set aside state law. Hamburger argues that federal administrative acts, although they come from the federal government, are not part of the supreme law of the land, and therefore contrary state law is not void. The threat of federal administrative action, with the promise of dollars and waivers, is the means of pressing the states into becoming agents of federal administrative power.
Hamburger focuses on federal administrative law but notes that practical experience with administrative governance initially became a part of American life in municipalities which "had never been fully brought in line with the constitutional ideals about the separation of powers." Many state legislatures established municipal commissions to sidestep city bosses and the danger of corruption. In late nineteenth-century New York there was much debate over the constitutionality of government by commission. The mayor of Brooklyn protested that each commission was a "monstrous un-American compound of legislative and executive functions in one body." New York newspapers condemned commissions as threats to democracy, while they were defended on the grounds that it was valuable to have "commissioners with absolute power of administration."
Hamburger addresses numerous defenses of administrative law, including discussions of what is "necessary and proper" under the Constitution, reliance, the "living Constitution," consent, and precedent. He does not address in great detail what is to be done to correct what he characterizes as an unconstitutional assault on liberty. He posits that Congress can react as quickly as agencies when motivated to do so, and suggests step-by step judicial correction. The first step, however. is to recognize that administrative law is extralegal absolute power and use more accurate language in describing administrative actions. The phrase "administrative law," for example, should be understood as a fig leaf which gives legal cover to extralegal lawmaking.
At a time when administrative law and power is in the headlines, Hamburger offers valuable insight into important foundational issues. Is it a positive, a negative, or just the way things are that under a "do nothing Congress" with "broken" and divided elected governance that an administrative state continues to issue thousands of substantive regulations, interpretations and waivers? Hamburger's position is clear. Whether his arguments will have long-term effect on the administrative state remains to be seen.
Image by Bart Everson. Licensed for use under Creative Commons Attribution 2.0 Generic (CC BY 2.0). Image has not been altered.