Michael On Everything Else

Is Administrative Law Unlawful? by Philip Hamburger

I have long railed against executive orders, which are a part of administrative law in the U.S., as I believe the practice has become abused by presidents who wish to yield more power than constitutionally allowed. Administrative law isn’t a new development in the U.S., but it was greatly expanded by Bush 43 and Cheney.

Recently I revisited the subject by reading Is Administrative Law Unlawful? by Philip Hamburger, which presents a great historical perspective on administrative law starting before the U.S. was founded. One of Mr. Hamburger’s points is that one of the main reasons the U.S. constitution was constructed was to protect us from administrative law (a.k.a. prerogative law, or the King’s prerogative).

This reading dovetails nicely with The Cult of the Presidency: America’s Dangerous Devotion to Executive Power by Gene Healy. The two books go hand-in-hand because it is We The People who are to blame for allowing, even encouraging a stronger Executive.

Today I found this post on Powerline.com that has good content and additional links to further understand administrative law.

Hopefully with the renewed interest in limiting the power of the President, we’ll get some momentum behind binding executive orders and re-empowering Congress, as abuse of executive power is not not limited to any single political party, regardless of justification (Obama continued Bush/Cheney’s abuse and justified it by pointing to an obstructionist Congress).

Below are some of my Kindle Clippings from Is Administrative Law Unlawful?:

Administrative Law Defined

“the executive acts against Americans through its own legislation and adjudication. This administrative action, whether legislative or judicial, is known as “administrative law,””

“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.”

“The Constitution generally establishes three avenues of power. It authorizes the government to issue binding edicts through legislative and judicial acts and to exercise force through executive acts.”

“This executive power to issue edicts that bind, or confine, subjects has long been recognized as the central feature of “administrative law,” and it is what this book questions.”

“Traditionally, under the U.S. Constitution, the government could bind its subjects only through its legislative and judicial powers.”

“The power to bind is a power to constrain liberty. Although only Congress and the courts have the power to bind and thereby confine liberty, this is exactly what executive and other administrative bodies claim to do through administrative law.”

Roots In King's Prerogative Power

“Administrative law thus turns out to be not a uniquely modern response to modern circumstances, but the most recent expression of an old and worrisome development.”

“The problem is not merely prerogative power, but absolute power.”

“Rather than work through ordinary law and adjudication, it proceeds alongside them, often mimicking their forms, but remaining different from them.”

“Administrative power thus brings back to life three basic elements of absolute power. It is extralegal, supralegal, and consolidated.” (emphasis mine)

“The absolute character of administrative law is important for understanding its unlawfulness.”

“Prerogative or administrative power, however, imposes rules and adjudications in addition to those of the law, and even where these extralegal constraints have statutory authorization, they interfere with the extent of the liberty enjoyed under the law.”

“Constitutional law developed in the seventeenth century primarily as a means of defeating the absolute prerogative.”

“This antiprerogative stance developed initially in the English constitution, and it was pursued most systematically in the U.S. Constitution.”

“Precisely because of prior experience with prerogative power, the English constitution and especially the U.S. Constitution confined legislative and judicial powers to the constitutionally authorized paths—that is, respectively, to the acts of the legislature and of the courts.”

“Administrative law evades not only the law but also its institutions, processes, and rights.”

BibTeX reference:

@book{hamburger2015,
  Author = {Philip Hamburger},
  Title = {Is Administrative Law Unlawful?},
  Publisher = {University Of Chicago Press},
  Year = {2015},
  ISBN = {022632463X},
}