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07/15/2014

Ilan Wurman on "Is Administrative Law Unlawful"?
Michael Ramsey

In The Weekly Standard, Ilan Wurman (see his interesting prior article here) reviews (favorably) Philip Hamburger's Is Administrative Law Unlawful? From the review's introduction:

The administrative state is a modern invention. It was, and remains, a necessity in our complex modern age. Or so goes the argument.

“The trouble in early times was almost altogether about the constitution of government; and consequently that was what engrossed men’s thoughts,” wrote Woodrow Wilson in his Study of Administration (1887). “The functions of government were simple, because life itself was simple. .  .  . No one who possessed power was long at a loss how to use it.” That all changed—apparently in Wilson’s generation—when “present complexities of trade and perplexities of commercial speculation” posed new challenges for government. 

“In brief,” Wilson wrote, “if difficulties of governmental action are to be seen gathering in other centuries, they are to be seen culminating in our own.” So we need experts: “[W]e have reached a time when administrative study and creation are imperatively necessary to the well-being of our governments saddled with the habits of a long period of constitution-making.” 

Necessary; there is no alternative. As the Supreme Court has dclared, “[I]n our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” 

That is a convenient narrative for the defenders of the administrative state. But it is fanciful. It is not historically accurate. And the justifications—especially the claim of necessity—are not new. Neither are the powers of the administrative state. Indeed, Philip Hamburger, professor of law at Columbia, argues here that it was precisely these justifications and powers that English and American constitutional law developed to protect us against. Not only is the modern administrative state unconstitutional, it is the very thing our Constitution sought to prevent.

(Via Power Line)

RELATED:  Professor Hamburger will be blogging about his book at Volokh Conspiracy this week.