With the issuance last month of his timely and provocative broadside against the legitimacy of the American administrative state, Columbia Law School Professor Philip Hamburger has gained headlines and stirred criticism to an extent uncommon for an erudite scholar in constitutional history.
Hamburger’s new 68-page book, The Administrative Threat, is a compact, forceful distillation of his more scholarly 646-page tome, Is Administrative Law Unlawful?, published in 2014. Both works lay out why Hamburger, the Maurice and Hilda Friedman Professor of Law, considers the powers now routinely exercised by administrative agencies to be “dangerous and unlawful in ways not conventionally recognized,” as he put it in the earlier work.
Hamburger contends that the Constitution permits only the legislative and judicial branches to subject citizens to binding obligations. The executive branch can enforce those obligations, but cannot create its own, he argues. The rise of administrative agencies over the past century violates that scheme, in his view.
As a consequence, Hamburger writes, “Americans must live under a dual system of government—one part established by the Constitution and another circumventing it.” In a recent interview, he talked about his books and their controversial thesis.
This interview was lightly edited for clarity and space.
Much of Is Administrative Law Unlawful? focuses on English legal history. Why is that?
One of the standard justifications for administrative power is that it’s a response to modern circumstances. From that perspective, the Constitution couldn’t have anticipated this sort of power and therefore could not have barred it.
But if one looks beyond the name “administrative” and looks at the substance of the power, one can see that it’s an extralegal power, in the sense that it’s a power not exercised merely through acts of the legislature and the courts, but through other sorts of edicts. Once one understands administrative power this way, then it becomes apparent that it has existed for a very long time. It is what English and European kings called the prerogative or absolute power.
Early Americans well understood this sort of power, they considered it profoundly dangerous, and they very carefully barred it in their constitutions. The state constitutions and, especially, the U.S. Constitution precluded any extralegal power, be it prerogative or administrative.
Since Congress delegates power to administrative agencies and what they do is subject to judicial review, is this power really as dangerous as that exercised by kings?
Much of traditional absolute power in Europe was authorized by legislation, and much of it was subject to review in the courts. But now, as then, legislative authorization does not prevent it from being unconstitutional.
The danger, by the way, is not only what happens in agencies, but also what happens in courts. The courts often defer to the executive—both to its interpretations of law and to its fact-finding. And when the government is a party to a case, this deference means that the court is actually biased in favor of the government’s account of the facts and the law—in violation of the due process of law and the right to a jury. The courts have thus corrupted their processes in order to accommodate administrative power. The courts thereby eviscerate much of the Bill of Rights.
A skeptic might argue that Congress can’t possibly legislate on the minute level that administrative agencies do. Isn’t it just impractical nowadays to do without administrative agencies?
For better or for worse, Congress does actually sometimes adopt bills that are thousands of pages long. So it doesn’t have that much difficulty going into detail when it wants to.
The objection about Congress being unable somehow to do this is really an objection to the fact that Congress is often politically unwilling to do it.
One way of thinking about administrative rulemaking is as an assault on equal voting rights. If you consider the two major developments in American law since the Civil War, one is equal suffrage. In 1870, blacks get the right to vote. In 1920, women get the right to vote. And in 1965, blacks really get the right to vote.
The other major development in American law is the development of administrative power. And the result is a sort of bait-and-switch. The people as a whole were allowed to vote, but at the same time legislative power was taken out of the hands of the legislature and placed in the hands of administrative agencies.
The knowledge class had a profound distaste for the results of expanded suffrage. Woodrow Wilson, for example, complained about how difficult it was for progressives to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of Negroes.” In these circumstances, the knowledge class—meaning not necessarily those who were particularly knowledgeable, but those who identified with academic knowledge—concluded that legislative power should be removed a step further away from the populace. In effect, they said, “Yes, you get the right to vote equally. But the details of legislative power will be exercised by members of our class.”
What would it take for the Supreme Court to create or restore the world you think the Constitution requires? Is it a matter of overruling certain cases?
The Court faces a conundrum. There’s a long history of precedents supporting administrative power. On the other hand, the reality is that much government power is nowadays exercised along pathways not authorized by the Constitution—indeed, forbidden by it. The conundrum is all the more serious because administrative power is a profound threat to civil liberties and an evisceration of equal voting rights. If the Court rigidly adheres to precedents that have gutted people’s constitutional rights, it will end up undermining its own legitimacy.
What’s been the reaction to these two books so far?
Much of the response has been very positive. There has been much disquiet, on the other hand, among those who are attached to administrative power. But I think the books have opened up a conversation that is long overdue. The subject has been largely untouched by any critical attitude. And it’s time for that to change.
“The Tyranny of the Administrative State” (The Wall Street Journal)
“Unelected Bureaucrats Are Running Our Lives” (USA Today)
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Posted on July 7, 2017