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A New Old Regime

by Scott W. Johnson

Is Administrative Law Unlawful? by Philip Hamburger (Chicago, 648 pp., $55)

Before you turn the page, dear reader, let me answer the question in the back of your mind. Can a book about administrative law really be must-read? Compelling? Of interest to the general reader? Like the answer to the question posed in the title of this absorbing book, the answer to each of these questions is Yes! in thunder.

To adapt the adage misattributed to Trotsky that is achieving the status of a cliché, you may not be interested in administrative law, but administrative law is interested in you. Hamburger declares that although administrative law is unrecognized by the Constitution, it “has become the government’s primary mode of controlling Americans.” He observes that “administrative law has avoided much rancor because its burdens have been felt mostly by corporations.” This is where you come in: “Increasingly, however, administrative law has extended its reach to individuals. The entire society therefore now has opportunities to feel its hard edge.”

Hamburger’s assessment of the proliferation of administrative law may be an understatement. Formal administrative law — the regulations promulgated by the alphabet soup of federal agencies — dwarfs the laws enacted by Congress. To take one vivid example from the front pages of the news in the Age of Obama, the Affordable Care Act (a.k.a. Obamacare) runs for 2,800 pages. Democratic House majority leader Nancy Pelosi famously predicted that we would have to pass the bill to find out what was in it. Pelosi was right in more ways than one. By one count published last year, the regulations implementing the act have consumed 10,000 closely printed pages of the Federal Register, at 30 times the length (in words) of the law passed by Congress.

Beginning roughly with the New Deal, but ever more since then, we have been ruled by agency government. In this form of government, Congress delegates its legislative authority to an administrative agency in the executive branch. The agency promulgates regulations with the binding force of law. It prosecutes citizens for violating the regulations. It also acts as the judge and jury in prosecutions it brings. The agencies therefore combine legislative, executive, and judicial functions in the same body.

The Interstate Commerce Commission, established in 1887, is recognized as the first administrative agency established by federal law. The agency form of government, however, came into its own in the Progressive era and the New Deal. It purported to be something new under the sun, an adaptation of republican government to the modern age. The Administrative Procedure Act, passed in 1946, formalized the triumph of the agency form of government.

It is Hamburger’s contention that agency government is in essence not new at all, but rather something antique and retrograde, dating back to the early Middle Ages. According to Hamburger, agency government represents a return to the prerogative power of the English monarchy before the reforms of Magna Carta (1215) and the acts of Parliament and decisions of the law courts in the 16th and 17th centuries.

As Hamburger says repeatedly in this book, administrative law establishes a regime of the kind the United States Constitution was carefully designed to prevent. By his reckoning, we have returned to “the preconstitutional world” of the inglorious reign of James I: Royal edicts are in style, the Star Chamber is in session, and the king is working the outer limits of absolute royal power.

It is a form of government that is, in Hamburger’s view, fundamentally unconstitutional, unlawful, and illegitimate. He has some impressive authority on his side. James Madison famously proclaimed “a political truth of the highest intrinsic value” in Federalist 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Hamburger concurs, arguing that it may also justly be pronounced the very definition of agency government.

Well, who is Philip Hamburger and why is he saying these things? Hamburger is not some rabble-rouser with thoughts of fame or fortune in mind looking to make a name or attract an audience. Rather, he holds an endowed chair at Columbia Law School. He is a distinguished scholar specializing in legal history. He is the epitome of respectability. His book bears the imprint of an elite academic publisher and it draws on a deep well of original scholarship to address what he characterizes as a leading danger to the future of limited constitutional government.

The book is in substantial part devoted to English legal history. Hamburger recounts how British monarchs claimed a right to issue edicts with the binding force of law and even to impose taxes under their prerogative power. They also established their own courts — the Star Chamber being the most notable example — to enforce their will.

This prerogative power was reformed over time, with legislative power restricted to Parliament and judicial power to the law courts. The courts rejected edicts promulgated by the king with the binding force of law; in 1641, Parliament abolished the Star Chamber and other prerogative tribunals.

Against this backdrop of legal history, the vesting by the U.S. Constitution of “all legislative Powers” in Congress (emphasis added), of “the executive Power” in a president, and of “the judicial Power” in the Supreme Court and the inferior courts established by Congress sparkles with a new eloquence, at least to me. This tripartite division of power among the branches of the government profoundly reflects the Founders’ understanding of the legal history recounted by Hamburger. They meant to lay out in our fundamental law the painful lessons learned in the long development of the English constitution.

Hamburger focuses on prerogative power, or absolute power, as he also calls it, in three aspects that recur in administrative law. His somewhat awkward terminology summarizes his critique. First, like the edicts issued under the prerogative power claimed by kings, administrative pronouncements are outside the law, or extralegal. The power to enact law is delegated by the people to Congress. Edicts promulgated by administrative agencies are, so Hamburger argues, outside the law.

Second, administrative pronouncements are above the law, or supralegal. The regulations and adjudications of administrative agencies demand and receive deference from Article III courts. Hamburger contends that such deference places administrative law and proceedings above the law.

Third, administrative law represents power that is consolidated. What the Constitution carefully puts asunder into three branches, administrative law has come to join in unholy union. As it was meant to do by its progressive advocates, it defeats the separation of powers.

Hamburger seeks to revive arguments about the legitimacy of agency government that, but for the exertions of a few hardy legal scholars, have long been interred. In this book and in his hands, old or forgotten arguments take on new life.

One such argument has to do with Congress’s delegation (or, as Hamburger emphasizes, subdelegation) of its lawmaking authority to agencies of the executive branch. The regime of administrative law depends to a great extent on Congress’s delegation of its lawmaking authority to these administrative agencies. The Supreme Court has purported to limit Congress’s authority to delegate its lawmaking power under an extremely lenient nondelegation doctrine (Congress’s lawmaking delegation must articulate an “intelligible principle”). The last time it enforced the doctrine to strike down a statute was in 1935. Reports of the death of the nondelegation doctrine are not greatly exaggerated.

The Court’s history to the contrary notwithstanding, Hamburger argues in a key chapter that Congress’s delegation of lawmaking authority is flatly unconstitutional; this argument is central to his indictment of administrative law. Among other things, Hamburger argues that delegation is expressly prohibited by the text of the Constitution. Hamburger dryly observes: “In a republic, it is not too much to expect that law will be made by a legislature composed of representatives of the people.” He cites John Locke (“The legislative can have no power to transfer their authority of making laws, and place it in other hands”) and other authorities in support of his argument that legislative power may not be delegated (or subdelegated), yet the Supreme Court has rejected such a flat prohibition, and Hamburger lacks much support among critics of administrative law in making this argument. Hamburger persuades me completely on this important point, but he is a voice crying in the wilderness.

How is the perverse genie of administrative law to be put back into the bottle? Unlike many books devoted to the analysis of a dire problem, Hamburger’s does not propose a solution to the problem of administrative law. Toward the end of the book, he  briefly implores federal judges to revisit the doctrine of nondelegation and suggests how they might usefully do so. He alludes to the right of revolution (“when the English Crown justified its absolute power as constitutional, the English and eventually the Americans engaged in revolutions against it”). Mostly, however, he provides the intellectual wherewithal for us to think through the problem on our own.

This is not a perfect book. One would not wish it a page longer than it is; one would wish it to be shorter. It is not elegantly written and it is not easy reading. It makes few concessions to the general reader, pursuing its arguments in both footnotes and endnotes; indeed, Hamburger frequently continues the footnotes in the endnotes.

Yet this is a book that rewards the reader willing to make the necessary effort with a deepened understanding of the Constitution and the challenges that confront us in the task of restoration. Though it was not written to be the book of a season, the news of the day repeatedly buttresses the powerful case Hamburger makes against the legitimacy of the vast administrative apparatus that does so much to dictate the way we live now. It is a book not only of this season but of many seasons to come.

– Mr. Johnson is a Minneapolis attorney and a contributor to the website Power Line.

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