Book of the Month/August 2014

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.
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.

Royal Prerogative
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).

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soylentg
Member

Pastor, either your page count for this book is a typo or your calculator is on the blink. A dollar a page on a 500 page book would put it in the out of reach category for almost all of us.

Now if I was one of those oft commenting trolls here in your comments section, I would go on to say that this just proves you know nothing about math and are unqualified comment on math.

But I’m not one of those.

Michael Duenes
Member

As I commented that last time Doug wrote about this topic, and I’ll reiterate here, the need of the hour is not merely to assert that the Founders were perfectly well aware of the modern industrial state in which we now live, and formed a government to deal with it. The need of the hour is to propose how such a government would work without the administrative state we have now. It is definitely not sufficient to say that the Constitution appoints legislative power solely to the Congress, without at the same time giving a detailed and persuasive explanation as… Read more »

RFB
Guest
RFB

Amazing.

I was heading directly here to post (another) suggestion that Pastor Wilson read this very book. I was bringing this quote-of-a-quote from a NRO review of the book: “…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.”

Thank you Sir!

Jon Swerens
Member

And if I were a troll, I’d mention how in no way does that book cover use Times New Roman.

gettimothy
Guest
gettimothy

@Michael Duenes

Start with things that where never regulated and worked.

In the modern era, the Internet is your example.
In the Founders era it was America itself.

Then, look at the characteristics of those two things. Both where (to use modern terms) loosely-coupled, fault-resistant, resilient , self-organizing systems with feedback effects that worked wonderfully and created great things.

Then, ask yourself what is God like? Lewis used the term “dynamo” to describe a vision in scripture.

Finally, God made us free and moral creatures.

cheers

t

RFB
Guest
RFB

When I think of administrative law, I think of a pinch-faced apparatchik sniffing “that would be highly irregular” while the zampolit stands carefully watching from the background.

Jon Swerens
Member

Not that it’s a pleasant looking cover. Blech.

Jon Swerens
Member

Ha! Sorry, Doug, but I thought I had better strike before Valerie did.

RFB
Guest
RFB

Speaking of zampolits: IRS settles with atheists by promising to monitor sermons for mentions of the right to life and traditional marriage.

JohnM
Guest
JohnM

@gettimothy

Your examples puzzle me. If I wanted to cite examples of things that were never regulated I wouldn’t cite something the invention of which was sponsored by the government. I also wouldn’t cite something that apparently the founders quickly decided didn’t work without regulation.

Michael Duenes
Member

Doug, you say that if it is too complicated for Congress to deal with, then you don’t want anybody dealing with it. OK, let’s just take highway safety, as one example of an arena where an administrative agency has authority. It don’t know where highway safety falls on the “complicated” scale, but there certainly is a ton of highway travel in our modern economy. Congress surely does not have the time or expertise to oversee and “deal with” highway safety in our nation. So, if this is “too complicated for Congress to deal with,” and it is, then you don’t… Read more »

timothy
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timothy

@JohnM. While I find your reply vague, I find it concrete enough to recognize it misses the point. Where will always be regulation–the question is who does the regulating; where does power lie? Is it centralized? or is it dispersed with checks and balances? What I do find enlightening is how internalized the Progressive mindset of centralized control defines at least two commentators on this thread. Freedom from the state’s minions is literally inconceivable to you. Any nail that stands up must be pounded back in. It is a very un-American mindset that too many Americans have now-a-days. We are… Read more »

Daniel Berkompas
Guest
Daniel Berkompas

@Michael, I believe that most roads currently fall within the jurisdiction of State and local governments, not Congress. If so, that leaves only the Interstate highway system under their direct control. It seems possible to me that Congress could pass the laws necessary to govern the Interstate highway system, such as setting speed limits, etc. They were able to pass a 2,000 page bill about healthcare, so I doubt they would find it impossible to write laws for the highways. As the author of this book suggested in a recent interview, you don’t even have to get rid of the… Read more »

JBrigham
Guest
JBrigham

@gettimothy – Go ahead, just give up and throw your hands in the air! It’s impossible to live with all these devices because they cause us to sin! We really need the civil government to step in and tell us how to use them! As an alternative, we could simply trust that God will give us exactly what we need – for every era. That Great Administrator doesn’t need a petty bureaucrat to do His work! Things work best when there are fewer people in the command chain.

Frank Acevedo
Guest
Frank Acevedo

Regardless of what form a government takes be it a constitutional republic or a monarchy, it is only as faithful as the foundation that undergirds it’s laws. Even if we try to head off this return to the failed polity that the framers sought to overcome, it still begs the question whether or not their program was any better. “We the people” smacks of enlightenment and french revolutionary ideology. This is antithetical to the biblical principle of a nation in covenant with God and which holds to His laws as the supreme law of the land. Each office holder abiding… Read more »

Andrew Lohr
Member

@ St Lee: $50 for 500 pages is 10 cents per page, which is what Doug wrote. The US economy grew faster A.D. 1840-1860 than it has grown in any 20-year-period since. In those days we had a gold standard yet banks printed their own money, and the cabinet had about 6 departments. I joined the Libertarian Party when I noticed that the private sector already supplies parks, schools, welfare, even security guards, even mercenaries! And the Chunnel, maybe the biggest single infrastructure thang ever, was privately built. The presupposition that government must supply this, that, and the other is,… Read more »

Michael Duenes
Member

Daniel, I appreciate your thoughtful comment. I am all in favor of severely reducing the role of government, so I am not commenting here in order to try and preserve the status quo. I remember taking Administrative Law in law school, and often writing in the margins of my casebook that the Supreme Court decisions in this area essentially enabled more bloated government. I would largely agree with you that the states could handle a lot of these matters. Yet the states handle them largely the way the federal government handles them, which is to say, by administrative agencies. Hence,… Read more »

timothy
Guest
timothy

@JBrigham Go ahead, just give up and throw your hands in the air! It’s impossible to live with all these devices because they cause us to sin! We really need the civil government to step in and tell us how to use them! I think you are misreading my position; I hope so anyway as what you are conveying is 180 degrees from my position on an Administrative State. Let me re-iterate. We live in an emerging age of decentralization with which the Progressive Era constructs of monolithic bureaucracies and the Administrative State are anathema. I expect the centrifugal forces… Read more »

Daniel Berkompas
Guest
Daniel Berkompas

@Michael, A fellow law student! I graduated in December. I had a similar experience with my casebooks, particularly when I took Bankruptcy. Ugh. I have great sympathy for Hamburger’s thesis, but I’ve also got a ton of practical questions, and I am hopeful that someone will take Hamburger’s thesis and follow it out to its logical and practical conclusion, in great “blueprint” type detail. Perhaps this is the type of work we law students should be working on? There is a great need for an alternate, detailed vision for law and society. If you want to chat further, my twitter… Read more »

Andrew Isker
Guest
Andrew Isker

Tom Woods had Hamburger on his podcast to discuss this very book.

JohnM
Guest
JohnM

Timothy, You ask: “Is it centralized? or is it dispersed with checks and balances? ” It is dispersed with checks and balances. Be happy about it. I know I am. Now, Timothy, and some others here too, am I to gather it isn’t government regulation per se that makes you mad, but who is doing it? Is that really it? If all the objectionable regulatory functions performed by the executive branch of the federal government, were turned over to whoever you envision doing the regulation you said there will always be, would you then find those regulatory functions non-objectionable? For… Read more »

timothy
Guest
timothy

Hi JohnM

It is dispersed with checks and balances. Be happy about it. I know I am.

It appears we live on different planets.

JohnM
Guest
JohnM

Hi Timothy,

“It appears we live on different planets.”

Well your planet doesn’t sound like a happy place, why don’t you emigrate to mine. It’s far from perfect but it does have the advantage of actually existing.

Seriously, you’re not all wrong, but you do overstate.

gettimothy
Guest
gettimothy

Well your planet doesn’t sound like a happy place, why don’t you emigrate to mine. It’s far from perfect but it does have the advantage of actually existing.

Well, it wasn’t at one time. and then God sent His son Jesus Christ to redeem it. Since then, it is changing in character to something quite wonderful and I prefer to tough it out here with Him.

Thanks for the invite, but I know where my home is.

Grace and Peace.

t

Tim
Guest
Tim

I wonder about the dozens of “administrative” decisions made in a given jurisdiction on a daily basis. If a code or rule cannot be found to have a legitimate pedigree–having been adopted by elected officials through an open public process–are Christians in a place to contend that decision? I think pagans and Christians alike can recognize administrative over-reach in our modern day; I am not convinced that Christians have Biblical marching orders to parse which rules to follow, and which rules not to follow.

APR
Guest
APR

St. Lee, Doug said it was a dime a page not a dollar a page.