Vol. 24 No. 12 (December 2014) 549-553
IS ADMINISTRATIVE LAW UNLAWFUL?, by Philip Hamburger. Chicago: University of Chicago Press. 2014. 635pp. Cloth $55.00. ISBN 978022611659.
Reviewed by Johnathan O’Neill, Department of History, Georgia Southern University. Email: email@example.com.
This book is a wholesale indictment of administrative law in the United States. Philip Hamburger argues, at length and in great detail, that administrative law usurps both legislative and judicial authority. It is nothing less than the recrudescence of the royal prerogative – a form of absolute power. Much of contemporary governance has thus returned to what the English and American constitutional traditions had evolved to constrain. The relentlessly fundamental criticism in this bracing work is rooted in Hamburger’s usual prodigious research and deep understanding of constitutional principles.
Given that the question of the book’s title is answered so affirmatively, Hamburger’s careful treatment of the rule of law is pertinent. He discards the common locution “rule of law” as too “vague” and “minimal” to be “relied upon to illuminate what is at stake” (p. 7 note d). He prefers “rule through and under law” because it better captures how liberty is secured when law is understood not only as a limit on state action, but also as the specialized structures, methods, and procedures which the state must abide by when it acts. It was the experience of prerogative power outside this richer understanding of law which led England, and more particularly the U. S. Constitution, to clothe with legal authority only the actions of legislatures and courts. Hamburger rightly emphasizes that “lurking not far below was the Lockean reasoning about consent” (p. 23). Power otherwise exercised might be an edict or a command or a proclamation, but it cannot be law. The core of Hamburger’s position – and the depth of his criticism – is evident when he writes: “If government must rule through the law and through the judgments of the courts, it cannot rule through acts that are not law or court judgments. The difference between the constitutional and the administrative regimes thus ultimately rests on the distinction between law and mere state power – between the regular law by which Americans govern themselves and the irregular administrative commands by which the government imposes its will on them” (p. 24).
The book is divided into five parts. Part I on “extra-legal legislation” recounts resistance to the royal prerogative in seventeenth-century English constitutional history. Included are the confrontation between James I and Sir Edward Coke; Star Chamber and its abolition; the suspending and dispensing powers; and such famous cases as those dealing with “ship money” and the “forced loan.” In each instance Hamburger explicates how the nub of the conflict pitted the established principles and procedures for legislating against the monarchy’s attempt to have its way. Part II on “extra-legal adjudication” similarly traces how prerogative courts violated common law due process rights through their inquisitorial and ex officio proceedings. For example, they permitted self-incrimination, official accusation based on secret information, and the use of general warrants. Parts I and II of the book each contain a chapter establishing the close resemblance of the modern administrative state to these bygone methods of the “preconstitutional past” (p. 10). [*549] From this perspective, modern administrative agencies are not courts and their officeholders are not judges as understood in the Anglo-American legal tradition. Hamburger agrees that “in the words that Frederick Maitland applied to the Star Chamber, an agency tribunal is ‘a court of politicians enforcing a policy, not a court of judges administering the law’” (p. 237). Accordingly, Hamburger would appear to be profoundly unconvinced by the argument of Daniel R. Ernst that the rule of law was truly preserved in the relaxed conception of it necessary to accommodate the administrative state (Ernst 2014). Hamburger does not cite this recent book, but engages several of Ernst’s articles which preceded it. Also in Part II is an extended and devastating treatment of the weak simulacrum of due process, and often its outright violation, under the Administrative Procedure Act (1946). This part also critically examines the various forms of informal agency rulemaking and interpretation that have the force of law, and condemns agencies’ biased use of “waivers.”
Hamburger denies that early American history contains clear precedents for modern administrative law, as argued most notably by Jerry Mashaw (2012). Such arguments, Hamburger says, conflate legally nonbinding executive acts with those that affect the rights of people in general who were subject to the law. In the late eighteenth and nineteenth centuries there were a variety of executive instructions and orders which did not purport to bind legal subjects, but only officers in the executive branch, or aliens. They were in essence executive housekeeping measures to direct subordinates, or the executive licensure or regulation of aliens who were beyond the law. In the former cases they bound only these subordinates in carrying out their official duties; in neither case were they directed at, nor did they claim to bind, the general public (pp. 18 note a, 106, 191-92. See also, pp. 80-81 note b, 526 note b). Likewise, the executive’s determination of an individual’s claims, benefits, or privileges against the government, or its establishment of the facts which triggered these things, were not adjudications and did not in principle bind the public at large. This fundamental distinction should not be obscured by the executive’s paralleling or imitation of judicial procedure in undertaking such actions (pp. 197-98, 203).
Part III develops a theme evident in the book’s earlier and later parts: the extralegal character of administrative power demands deference from courts. Judges are pressured to traduce what was so sorely won in earlier constitutional struggles – the definitively judicial duty of independent legal judgment. One reason for this change was that the legal system gradually substituted appeals in place of damage suits against wayward executive officials (chapter 16). This contraction of the remedies available to aggrieved citizens began to make administrative officials a class “above the law” well before the modern constitutional jurisprudence of [*550] deference. Turning next to the APA, Hamburger pointedly questions how a statute can set the standards by which judges determine the constitutionality of executive acts. That fundamental issue aside, he sees the field as tilted steeply toward state power by the Act’s very accommodating “arbitrary and capricious” and “abuse of discretion” standards. The “substantial evidence” standard on which agency decisions must be based is equally biased in their favor. Nor is Hamburger persuaded by the often-defended “hard look” review courts sometimes apply to agency rules. He describes it too as “utterly deferential” (p. 313). The jurisprudence of deference built on the CHEVRON and SKIDMORE decisions he calls an “abandonment of judicial office” (p. 316). Likewise, judicial deference to an agency’s factual record in lieu of de novo review “violates several constitutional principles,” including the grant of judicial power to the courts, the guarantee of due process, and the right to a jury trial (p. 319). This is strong stuff, and Hamburger conveys a certain tone of anger or disgust at the ways that administrative law undermines constitutional government.
Hamburger further underscores administrative law’s evasion of the formalism inherent in any principled defense of constitutionalism. This theme is particularly evident when he notes that judges have often excused their deference on the ground that they lack expertise in a particular technical area being regulated. He responds, rightly, that technical knowledge or data do not resolve policy questions: all legislation involves political choices. “It therefore is not the difficulty of technical knowledge, but the extralegal character of administrative legislation that creates the problem. Rather than have to decide matters requiring scientific expertise, the judges need only confront the question of law: They need only decide whether the legislation has been adopted in an act of Congress” (p. 314). But because they have been “unwilling to confront this question about institutional procedures for lawmaking, the judges instead ask whether the executive has met procedures for rational thinking” (p. 314). They are then able to follow the APA’s inquiry about “arbitrary and capricious lawmaking” and “abuses of discretion.” Judges have taken this “hint” and so defer to administrative rules that seem “more or less rational – the mental process thus filling the gap in the institutional process” (p. 314). Hamburger protests that this is a grave self-deception, or perhaps a fig-leaf of respectability. “Rather than admit that they are prostrating themselves before administrative lawmaking, they can stand on principle and engage in at least the formality of judicial review. Their principles, however, are not those of the Constitution, and the review is candidly a matter of deference to power” (p. 314).
Parts IV and V delve more deeply into the claim that administrative law is profoundly anti-constitutional because it has returned to the exercise of power which is both “ consolidated” and “absolute.” It is consolidated because it rejects both the logic and the actual practice of the separation of powers, thereby imperiling the liberty this structure was designed to protect. Legislative, executive, and judicial powers are combined and exercised in a multitude of specialized agencies who act largely unchecked. Thus has modern government retrogressed to undifferentiated yet dispersed centers of power: much of what constitutional systems had evolved since the Middle Ages to oppose. The result “leaves even phalanxes of corporate lawyers doubtful about what is allowed under the law and what is not” (p. 353). The magnitude, opacity, and inaccessibility of the power consolidated in the administrative state undermines the principles of consent and obligation that are central to republican government. On this account the “notice and comment” provisions of the APA are a “charade,” a “laughable” mimicry of our foundational principles which only dramatizes how deeply they are being violated (p. 361).
Under the head of “consolidation” Hamburger also attacks delegation, the common defense of administrative law which holds that Congress can delegate power to the executive as its agent. He notes [*551] that the very notion overcomes the separation of powers, and therefore is immediately suspect. Moreover, the Supreme Court’s doctrinal requirement that delegated power be applied by administrative agencies according to some “intelligible principle” derived from Congress is a “ludicrously low standard ” – a “fiction” which avoids the fundamental question of whether Congress can legitimately transfer its power (p. 378). Hamburger’s answer to that question is resoundingly negative because, he argues, the debate over the delegation issue has been fundamentally misconceived. Adverting again to the formal structure of the Constitution, he writes that when Congress purports to delegate legislative power, in fact it is “subdelegating” the power originally granted to it by the people. In doing so it violates the foundational republican principle of government by consent as expressed in Article I’s statement that “all legislative Powers herein granted shall be vested in a Congress of the United States.” Likewise, Congress cannot delegate to the Executive the power to dispense with a law via a waiver, nor can it give the power to adjudicate, because Congress itself was never constitutionally granted either of these powers. Thus another central pillar of administrative law falls via Hamburger’s recurrence to the formal, foundational structures of the constitutional order.
In the final part of the book on “absolutism” Hamburger states that the type to be feared under administrative law is the “soft” despotism that Alexis de Tocqueville first diagnosed. The centralized administrative state relieves democratic citizens from the burdens of self-government. It places them under its paternal supervision, enervating their capacity even to recognize their bondage. Hamburger observes that Roscoe Pound echoed Tocqueville’s concerns in the early twentieth century, but somewhat confusedly and episodically. One is left with the impression that, more than a half century later, Hamburger aims to return the debate to fundamentals in a way that Pound did not quite sustain.
In further arguing that administrative law is absolutist, Hamburger engages the appeal to “necessity” as the traditional justification for extralegal action. Administrative law is certainly not the classic case of necessity – preservation in a time of emergency. Rather, its defenders have long claimed that it was a necessarily novel response to the sui generis complexities of modern life that emerged in the late nineteenth and early twentieth centuries. Hamburger has several responses to this defense. One is that a continuing necessity over the course of now more than a century should mandate regularization via amendment of the Constitution. Another is that the “necessary and proper” clause cannot be relied upon to legitimate the administrative state because it permits Congress only the discretionary choice of means to carry out other powers vested in the government, not to create new ones. Moreover, he holds that it should not be “merely assumed that sociological complexity requires the weight of administrative control” rather than “rule by and under law” (pp. 430, 431). The assertion that modern complexity, irregularity, and rapid change must be met with centralized administrative control is in fact a non sequitur that is typically defended abstractly rather than empirically. “The supposition seem to be there is something distinctively irregular about modernized relationships or other circumstances, which places them beyond the regularity of rules, but whatever that irregularity is, it has yet to be identified” (p. 430). [*552]
This book richly describes administrative law from its origins in prerogative power to today, at both the level of constitutional principle and historical detail. It is less elaborate in its explanation of why this power reemerged. Nevertheless, because Hamburger insists that it is the recrudescence of an old form of absolute power rather than a necessary response to modern conditions, he must attribute responsibility. And he does: to the desire for order, social control, and status among a expertise-based “new class” that emerged in the early twentieth century; and to the allied imperatives of Progressive political science as tutored by German state theory. These developments constituted a “flight from consent.” Legislative power was displaced from representatives of a recently expanded electorate that was not to be trusted, and given to administrators to be exercised “on behalf of the intellect, rationality, and knowledge they saw in themselves” (pp. 369, 373). A substantial chapter on the “German connection” carefully traces the importation of related conceptions of administration which were hostile to foundational American ideas such as social contact theory, the separation of powers, individual rights, and limited government. One need not search far in the work of major figures such as Woodrow Wilson, Frank Goodnow, and William Willoughby for illustrations of their version of elite rule by expert state administrators. Hamburger is aware that such analysis of expertise and Progressive political science is not wholly new. Yet he cogently connects earlier scholarship to his own arguments, offering a plausible explanation of why administrative law reemerged in America.
Hamburger argues persuasively that America has overlaid its constitutional system with a form of governance that is both alien and dangerous. The final subsection of the book is titled “candor,” and this word aptly summarizes his call for recognition of the gravity of the challenges assayed in the previous five hundred pages. Some readers undoubtedly will find daunting this book’s length and occasional repetitiousness. But it is lucidly written and carefully organized, and certainly it is no small task to analyze just how deeply the administrative state threatens liberty and constitutionalism. Scholars will return to Hamburger’s exhaustive explication of these issues for a long time to come.
Ernst, Daniel R. 2014. TOCQUEVILLE’S NIGHTMARE: THE ADMINISTRATIVE STATE EMERGES IN AMERICA.1900-1940. Oxford: Oxford University Press.
Mashaw, Jerry L. 2012. CREATING THE ADMINSTRATIVE CONSTITUTION: THE LOST ONE HUNDRED YEARS OF AMERICAN ADMINSTRATIVE LAW. New Haven: Yale University Press.
CHEVRON USA, INC. V. NATURAL RESOURCES DEFENSE COUNCIL, 467 U.S. 837 (1984).
SKIDMORE V. SWIFT AND CO., 323 U.S. 134 (1944)
© Copyright 2014 by the author, Johnathan O’Neill.