September 2014
The History and Danger of
Administrative Law
Philip Hamburger
Columbia Law School
Columbia Law School
“Reprinted by permission from Imprimis, a publication of
Hillsdale College.”
is the Maurice and
Hilda Friedman Professor of Law at Columbia Law School. He received his B.A.
from Princeton University and his J.D. from Yale Law School. He has also taught
at the University of Chicago Law School, the George Washington University Law
School, the University of Virginia Law School, and Northwestern Law School. A
contributor to National Review Online, he has written for several law reviews
and journals, including the American Journal of Legal History, the Supreme
Court Review, the Notre Dame Law Review, and the Journal of Law
and Politics. He is the author of Separation of Church and State, Law
and Judicial Duty, and, most recently, Is Administrative Law Unlawful?
The
following is adapted from a speech delivered on May 6, 2014, at Hillsdale
College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship
in Washington, D.C., as part of the AWC Family Foundation Lecture Series.
There are many complaints about administrative
law—including that it is arbitrary, that it is a burden on the economy, and
that it is an intrusion on freedom. The
question I will address here is whether administrative law is unlawful, and I
will focus on constitutional history. Those who forget history, it is often
said, are doomed to repeat it. And this is what has happened in the United
States with the rise of administrative law—or, more accurately, administrative
power.
Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal
with the problems of modern society in all its complexity. From this
perspective, the Framers of the Constitution could not have anticipated it and
the Constitution could not have barred it. What I will suggest, in contrast, is
that administrative power is actually
very old. It revives what used to be called prerogative or absolute power, and
it is thus something that the Constitution centrally prohibited.
But first, what exactly do I mean by
administrative law or administrative power? Put simply, administrative acts are binding or constraining edicts that come, not
through law, but through other mechanisms or pathways. For example, when an
executive agency issues a rule constraining Americans—barring an activity that
results in pollution, for instance, or restricting how citizens can use their
land—it is an attempt to exercise binding legislative power not through an act
of Congress, but through an administrative edict. Similarly, when an executive
agency adjudicates a violation of one of these edicts—in order to impose a fine
or some other penalty—it is an attempt to exercise binding judicial power not
through a judicial act, but again through an administrative act.
In a way we can think of administrative law as
a form of off-road driving. The Constitution offers two avenues of binding
power—acts of Congress and acts of the courts. Administrative acts by executive
agencies are a way of driving off-road, exercising power through other
pathways. For those in the driver’s seat, this can be quite exhilarating. For
the rest of us, it’s a little unnerving.
The Constitution authorizes three types of
power, as we all learned in school—the legislative power is located in
Congress, executive power is located in the president and his subordinates, and
the judicial power is located in the courts. How does administrative power fit
into that arrangement?
The conventional answer to this question is
based on the claim of the modernity of administrative law. Administrative law,
this argument usually goes, began in 1887 when Congress created the Interstate
Commerce Commission, and it expanded decade by decade as Congress created more
such agencies. A variant of this account suggests that administrative law is
actually a little bit older—that it began to develop in the early practices of
the federal government of the United States. But whether it began in the 1790s
or in the 1880s, administrative law according to this account is a post-1789
development and—this is the key point—it arose as a pragmatic and necessary
response to new and complex practical problems in American life. The pragmatic and necessitous character of
this development is almost a mantra—and of course if looked at that way,
opposition to administrative law is anti-modern and quixotic.
But there are problems with this conventional
history of administrative law. Rather than being a modern, post-constitutional
American development, I argue that the
rise of administrative law is essentially a re-emergence of the absolute power
practiced by pre-modern kings. Rather than a modern necessity, it is a
latter-day version of a recurring threat—a threat inherent in human nature and
in the temptations of power.
The Prerogative Power of Kings
The constitutional history of the past thousand
years in common law countries records the repeated ebb and flow of absolutism
on the one side and law on the other. English kings were widely expected to
rule through law. They had Parliament for making law and courts of law for
adjudicating cases, and they were expected to govern through the acts of these
bodies. But kings were discontent with governing through the law and often
acted on their own. The personal power
that kings exercised when evading the law was called prerogative power.
Whereas ordinarily kings bound their subjects through
statutes passed by Parliament, when exercising prerogative power they bound
subjects through proclamations or decrees—or what we today call rules or
regulations. Whereas ordinarily kings
would repeal old statutes by obtaining new statutes, when exercising
prerogative power they issued dispensations and suspensions—or what we today
call waivers. Whereas ordinarily kings enforced the law through the courts
of law, when exercising prerogative power they enforced their commands through
their prerogative courts—courts such as the King’s Council, the Star Chamber,
and the High Commission—or what we today call administrative courts.
Ordinarily, English judges resolved legal disputes in accordance with their
independent judgment regarding the law. But when kings exercised prerogative
power, they expected deference from judges, both to their own decrees and to
the holdings and interpretations of their extra-legal prerogative courts.
Although England did not have a full separation
of powers of the sort written into the American Constitution, it did have a
basic division of powers. Parliament had the power to make laws, the law courts
had the power to adjudicate, and the king had the power to exercise force. But
when kings acted through prerogative power, they or their prerogative courts
exercised all government powers, overriding these divisions. For example, the
Star Chamber could make regulations, as well as prosecute and adjudicate
infractions. And defenders of this sort of prerogative power were not squeamish
about describing it as absolute power. Absolutism was their justification.
Conceptually, there were three central elements of this
absolutism: extra-legal power, supra-legal power, and the consolidation of
power. It was extra-legal or outside the law in the sense that it bound the
public not through laws or statutes, but through other means. It was
supra-legal or above the law in the sense that kings expected judges to defer
to it—notwithstanding their duty to exercise their own independent judgment.
And it was consolidated in the sense that it united all government
powers—legislative, executive, and judicial—in the king or in his prerogative
courts. And underlying these three central elements was the usual conceptual
justification for absolute power: necessity. Necessity, it was said, was not
bound by law.
These claims on behalf of absolutism, of
course, did not go unchallenged. When King John called Englishmen to account
extralegally in his Council, England’s barons demanded in Magna Carta in 1215
that no freeman shall be taken or imprisoned or even summoned except through
the mechanisms of law. When 14th century English kings questioned men in the
king’s Council, Parliament in 1354 and 1368 enacted due process statutes. When King James I attempted to make law
through proclamations, judges responded in 1610 with an opinion that royal
proclamations were unlawful and void. When James subsequently demanded
judicial deference to prerogative interpretations of statutes, the judges
refused. Indeed, in 1641 Parliament
abolished the Star Chamber and the High Commission, the bodies then
engaging in extra-legal lawmaking and adjudication. And most profoundly, English constitutional law began to develop—and it made clear that
there could be no extra-legal, supra-legal, or consolidated power.
The Rise of Absolutism in America
The United States Constitution echoes this.
Early Americans were very familiar with absolute power. They feared this
extra-legal, supra-legal, and consolidated power because they knew from English
history that such power could evade the law and override all legal rights. It
is no surprise, then, that the United States Constitution was framed to bar
this sort of power. To be precise, Americans established the Constitution to be
the source of all government power and to bar any absolute power. Nonetheless,
absolute power has come back to life in common law nations, including America.
After absolute power was defeated in England
and America, it circled back from the continent through Germany, and especially
through Prussia. There, what once had been the personal prerogative power of
kings became the bureaucratic administrative power of the states. The Prussians
were the leaders of this development in the 17th and 18th centuries. In the
19th century they became the primary theorists of administrative power, and
many of them celebrated its evasion of constitutional law and constitutional
rights.
This German theory would become the
intellectual source of American administrative law. Thousands upon thousands of
Americans studied administrative power in Germany, and what they learned there
about administrative power became standard fare in American universities. At
the same time, in the political sphere, American Progressives were becoming
increasingly discontent with elected legislatures, and they increasingly
embraced German theories of administration and defended the imposition of
administrative law in America in terms of pragmatism and necessity.
The Progressives, moreover, understood what
they were doing. For example, in 1927, a
leading Progressive theorist openly said that the question of whether an
American administrative officer could issue regulations was similar to the
question of whether pre-modern English kings could issue binding proclamations.
By the 1920s, however, Progressives increasingly were silent about the
continuity between absolute power and modern administrative power, as this
undermined their claims about its modernity and lawfulness.
In this way, over the past 120 years, Americans have reestablished the very sort of
power that the Constitution most centrally forbade. Administrative law is
extra-legal in that it binds Americans not through law but through other
mechanisms—not through statutes but through regulations—and not through the decisions
of courts but through other adjudications. It is supra-legal in that it
requires judges to put aside their independent judgment and defer to
administrative power as if it were above the law—which our judges do far
more systematically than even the worst of 17th century English judges. And it
is consolidated in that it combines the three powers of government—legislative,
executive, and judicial—in administrative agencies.
Let me close by addressing just two of many
constitutional problems illuminated by the
re-emergence of absolutism in the form of administrative power: delegation and
procedural rights.
One standard defense of administrative power is
that Congress uses statutes to delegate its lawmaking power to administrative
agencies. But this is a poor defense. The delegation of lawmaking has long been
a familiar feature of absolute power. When kings exercised extra-legal power,
they usually had at least some delegated authority from Parliament. Henry VIII,
for example, issued binding proclamations under an authorizing statute called
the Act of Proclamations. His binding proclamations were nonetheless understood
to be exercises of absolute power. And in
the 18th century the Act of Proclamations was condemned as unconstitutional.
Against this background, the United States Constitution expressly bars the delegation of
legislative power. This may sound odd, given that the opposite is so
commonly asserted by scholars and so routinely accepted by the courts. But read the Constitution. The Constitution’s
very first substantive words are, “All legislative Powers herein granted shall
be vested in a Congress of the United States.” The word “all” was not placed
there by accident. The Framers understood that delegation had been a problem in
English constitutional history, and the word “all” was placed there precisely
to bar it.
As for procedural rights, the history is even
more illuminating. Administrative adjudication evades almost all of the
procedural rights guaranteed under the Constitution. It subjects Americans to
adjudication without real judges, without juries, without grand juries, without
full protection against self-incrimination, and so forth. Like the old
prerogative courts, administrative courts substitute inquisitorial process for
the due process of law—and that’s not just an abstract accusation; much early
administrative procedure appears to have been modelled on civilian-derived
inquisitorial process. Administrative adjudication thus becomes an open avenue
for evasion of the Bill of Rights.
The standard justification for the
administrative evasion of procedural rights is that they apply centrally to the
regular courts, but not entirely to administrative adjudication. But the
history shows that procedural rights developed primarily to bar prerogative or
administrative proceedings, not to regulate what the government does in regular
courts of law. As I already mentioned, the principle of due process developed
as early as the 14th century, when Parliament used it to prevent the exercise
of extra-legal power by the King’s Council. It then became a constitutional
principle in the 17th century in opposition to the prerogative courts.
Similarly, jury rights developed partly in opposition to administrative
proceedings, and thus some of the earliest constitutional cases in America held
administrative proceedings unconstitutional for depriving defendants of a jury
trial.
* * *
In sum, the conventional understanding of
administrative law is utterly mistaken. It is wrong on the history and
oblivious to the danger. That danger is absolutism: extra-legal, supra-legal,
and consolidated power. And the danger matters because administrative power
revives this absolutism. The Constitution carefully barred this threat, but
constitutional doctrine has since legitimized this dangerous sort of power. It
therefore is necessary to go back to basics. Among other things, we should no
longer settle for some vague notion of “rule of law,” understood as something
that allows the delegation of legislative and judicial powers to administrative
agencies. We should demand rule through law and rule under law. Even more
fundamentally, we need to reclaim the vocabulary of law: Rather than speak of
administrative law, we should speak of administrative power—indeed, of absolute
power or more concretely of extra-legal, supra-legal, and consolidated power.
Then we at least can begin to recognize the danger.
-----------------------------
My Brief Comment:
I find the above to be an excellent article and very legally sound. It demonstrates that it is an egregious dereliction of duty for Congress to allow Obama the Usurper the ability to be so derisive and dismissive of the Constitution, and to issue edicts and waivers he has no legal right and no legal prerogative to issue under the Constitution.
In regard to Dr. Bonham's Case and the legal decision rendered by Lord Coke in 1610 A.D., you may want to read the Oxford Journal of Legal Analysis 22 page article with 8 more pages of references from 2009 http://jla.oxfordjournals.org/content/1/1/325.full.pdf
and see that even with this case, there is a problem between legal reality and legal enforcement of what the laws are and how they are to be enforced, needing a strong legislative and other means of support in seeing that they be enforced and confirmed as the legal reality they are supposed to be.
-- Brianroy
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