For this month’s installment, I am going to do something a little bit different. I am going to throw some superlatives into the second paragraph, explain some obstacles in the next, and then add my own observations following all that.
This book, Is Administrative Law Unlawful?, is one of the most important books of this generation — magnificent, magisterial, monster-mojo-fun. Everyone who is directly or indirectly connected with politics needs to get it, read it, and digest it. It is an unlikely contender for best seller status, but we need to make sure it gets there anyway. I am taking the unusual step of reviewing a book for this spot before finishing it — but bear with me. I want to take it all in slowly while getting the word out quickly.
Okay, there are some obstacles. The book costs about fifty clams, which works out to about a dime a page — worth every penny. This thing has a tight weave of 511 pages, with 111 pages of dense footnotes on top of that. It is a carefully written academic tome, published by The University of Chicago Press, in a nondescript powder blue cover, with the title looking suspiciously Times Romanesque. Take all these things together, and you scarcely notice the fuse sticking out of the top. But then, after a double take, you realize it is a lit fuse. Despite all these challenges, one time I checked it was ranked around 12,000 at Amazon. That is remarkable for a book like this, but we need to have it do a lot better than that.
Why, yes. Yes, it is.
But don’t just buy it to make a statement. Read it, and let the good law professor make his statement. Scott Johnson of Powerline has a review of the book in the current issue of National Review, an adaptation of which can be found here.
We have been told that the modern world is a complex place, and that the archaic rules laid down for our governance in the Constitution have not be able to keep up. Modern! Shiny! Techno! Faster! How could we possibly expect the powdered wig guys, however much we revere them, to have anticipated the modern challenges that confront us Today?
In this book, Philip Hamburger simply destroys this glib assumption, not to mention the hubris it rode in on. The modern administrative state is not the shining achievement of technocratic man, but is rather a retrograde political movement returning, like a dog to its vomit, to a certain medieval form of governance that our constitutional forms of government first arose and smote.
The only thing missing is that the EPA has not seen fit to start meeting in a Star Chamber. Enough with the disparagement of constitutionalism as powdered wig governance. The “modern” administrative state is governance by despots in Elizabethan breeches and piccadills. There is nothing new about any of this.
The growth of constitutional liberty was a long slog, and the Glorious Revolution of 1688 was one great victory over the dogma of the “royal prerogative.” The American War for Independence was another great moment in that same struggle. The result of the American resistance to arbitrary government was our written Constitution, a document expressly designed to prohibit the kind of governance we now suffer. The fact that this Constitution was designed to prohibit the current shenanigans is something that Hamburger demonstrates again and again.
We have determined that the employer mandate may be waived for the present, as it suits our pleasure . . .
Do you want to know why Obama thinks he can simply alter the requirements of Obamacare? Congress passes a law, he signs it into law, but then when aspects of it land heavily upon certain lords and barons who are friendly to the crown, he just issues his administrative waivers — his “suspending and dispensing powers,” as Henry VIII would have called them. As Scott Johnson put it, this is a “new old regime.”
There are two great takeaways from this book. The first is that our current regime is an old enemy in a new guise. It was not a development that the Founders could not have anticipated — it was their old foe. They knew it quite well. They knew the arguments of expedience and necessity, and they rejected them. They rejected them at the root and in the flowering fruit. They wanted nothing to do with it.
The arguments for administrative law are therefore arguments for absolute power. The whole thing is deeply and profoundly unlawful, illegal, and subversive. The ruling elites always gravitate toward this kind of dry rot polity, all while assuring us that everything is perfectly sound. But this book will forever dispel their ability to lie that particular lie.
The second takeaway is an implication of the book for those Christians who take their faith seriously, and who therefore believe that we have an obligation before God to be law-abiding citizens (Rom. 13:1-7; 1 Pet. 2:13-17).
In this respect, the title of this book is explosive. Is Administrative Law Unlawful? The answer to this question is provided over and over in the course of the book, and the answer is that administrative law is unlawful. It is not binding. It is lawless. It is rebellion. It is subversive. It follows then that those who reject its authority are not rejecting authority — just the reverse, actually.
There are of course a host of practical questions that arise. But before tackling the practical questions, it is important to get the theory straight. Whether or not a particular agency has enough SWAT teams to take my property away from me, I should at least be clear that when they do, they are the ones being the outlaws. Resisting them in whatever ways I can ought not to be a burden on my conscience. And to be perfectly frank, not resisting them should be.
Whatever you do, get this book. For all your getting, get wisdom (Prov. 4:7).