Philip Hamburger – Is Administrative Law Unlawful?
Administrative law is essentially a fancy name for regulation. This is arguably the most important regulatory studies book of the last decade. Hamburger argues that in many cases, yes, administrative law is unlawful. Regulatory agencies, not legislatures, do most of today’s legislating. Many agencies even have their own courts and judges outside of the traditional judicial system, which are immune from its checks and balances from the other branches.
A partial list of the administrative state’s systemic rights violations include “separation of powers, the grants of legislative and judicial powers, the internal divisions of these powers, the unrepresentative character of administrative lawmaking, the nonjudicial character of administrative adjudication, the obstacles to subdelegation, the problems of federalism, the due process of law, and almost all the other rights limiting the judicial power.” (pp. 499-500)
Hamburger traces the intellectual roots of modern American administrative power abuses back to absolutist royal prerogative under King James I of England and his Star Chamber in the early 1600s, and the German Historical School of the late 19th century.
While the reaction against James I eventually begat the Glorious and American Revolutions, German historicism had the opposite effect. It was a major ideological influence for early progressivism and President Woodrow Wilson, who did as much as any politician to enable the modern administrative state to grow. Then again, German historicism’s dominance also inspired a rebellious F.A. Hayek to emphasize instead a bottom-up philosophy of emergent order, which continues to be an animating principle of today’s larger market liberal movement.
This is a landmark book for regulatory scholars, though drily written. The innumerable distinctions, divisions, subdivisions, and legal parsing inherent to the subject reminded me of my distaste for legal studies.
Many people treat legal structures as unquestionably sacred and eternal. But in the end, people just made them up over time. Disturbingly few people ever ask “why,” not just “what.”
Hamburger is better than most legal scholars about this, and spends plenty of time digging into why principles such as separation of powers and due process are good ideas, or why we have separate codes and court systems for criminal law and administrative law. But the accumulated legalistic minutiae are so overwhelming that even Hamburger gets lost in all the what.