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07/21/2014

More from Philip Hamburger on "Is Administrative Law Unlawful"
Michael Ramsey

Philip Hamburger, guest-blogging at Volokh Conspiracy, has these posts describing his recent book:

Why the history of administrative power matters

The foundation of my new book, Is Administrative Law Unlawful?, is a new account of the history of administrative law. Administrative power has been a part of American life for more than a century, but much of its history has remained untold. And this matters, because the history is sobering, and once it is understood, the danger and unlawfulness of administrative power become painfully apparent. ...

Extralegal power, delegation, and necessity

Conventionally, the constitutional analysis of administrative power focuses simply on whether this sort of power collides with particular provisions of the Constitution. It is useful, however, before turning to detailed constitutional questions, to consider the way in which this power is extralegal. With this concept, one can begin recognize the dangerous nature of administrative power and thus can begin to understand the importance of the constitutional objections. ...

The Constitution’s repudiation of extralegal power

The Constitution systematically repudiated absolute power, including extralegal power. Too often, administrative law is considered in terms of relatively flat constitutional doctrines, without much thought about its history, the dangers that provoked the development of constitutional law or broader conceptions of the role of law. Once one realizes that absolute power — to be precise, extralegal power — was the central danger that provoked the development of constitutional law, it becomes clear that such power is forbidden by the U.S. Constitution. Such is the main legal argument of my new book, Is Administrative Law Unlawful? ...

Rule of law vs. rule through law

At the level of political theory, my book, Is Administrative Law Unlawful?, questions the usefulness of the notion of rule of law. This amorphous principle has been used by some commentators, such as Richard Epstein, to critique administrative power, but more typically it has lent itself to justifications of this sort of power. And this should be no surprise, for much administrative power has statutory authorization, and it therefore is not obvious that it violates the rule of law.

What more clearly is at stake in administrative and other extralegal power is the principle of rule through law (or, if you prefer, rule by law). As explained by my book, absolute power in the 17th century was an attempt to rule outside the law, and, in response, constitutional law (both in England and America) was framed as a means of imposing rule through law, including rule through the regular courts. Precisely to preclude rule by prerogative or administrative edict, constitutional law placed lawmaking power in a legislative body and judicial power in courts, thereby allowing only rule by law. ...

Also, at Liberty Law Forum, The Unlawful Administrative State: A Conversation with Philip Hamburger (podcast).