University of Chicago Press
May 27, 2014
Is administrative law unlawful? This provocative question has become all the more significant with the expansion of the modern administrative state. While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent. With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious—and profoundly unlawful—return to dangerous pre-constitutional absolutism.
This is a magnificent book, simultaneously haunting and bracing. In this book, Philip Hamburger demonstrates, shows, and proves that Americans are currently ruled by a system that the U.S. Constitution was explicitly designed to prevent. Our current system of administrative law “returns to the very power that constitutional law developed in order to defeat, it does more than simply depart from one or two constitutional provisions. It systematically steps outside the Constitution’s structures, thereby creating an entire anti-constitutional regime” (p. 498).
This book is a fifty-gallon-drum-sized stick of dynamite with the fuse already lit. It is required reading for every attorney, every political activist, and every land owner hassled by the EPA because of that duck that lands in your puddles in the spring, thus making your lower acre a wetlands.