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08/08/2014

Philip Hamburger Guest-Blogging at Liberty Law Blog
Michael Ramsey

He is everywhere...

Here are the initial posts:

Extralegal Power

From Prerogative to Administrative Power

From the latter:

Of course, what early Americans called “prerogative” power, we call “administrative” power. But this difference in terms cannot obscure the reality that this sort of power–consisting of binding extralegal edicts–was what provoked the development of constitutional law and what was emphatically barred by it.

It therefore is odd to hear from contemporary defenders of administrative power that it is a new sort of power, which could not have been anticipated by the U.S. Constitution. Although the late nineteenth- and early twentieth-century proponents of administrative power did much damage to constitutional governance, many of them at least understood what they sought. They recognized that they were reviving prerogative power–the sort of power that provoked the development of constitutional law–and rather than shy away from this reality, they often candidly admitted it.