Liberty, Prudence, Imperfection, and Law

“Erasing the Fundamental Commitments of American Constitutionalism,” By Joseph Postell

American colonists in New York City pull down a statue of King George III to be melted into bullets. Licensed under Public Domain via Wikimedia Commons.

Philip Hamburger’s Is Administrative Law Unlawful? is a timely and major contribution to the most significant constitutional crisis of our time. As a work of scholarship it will inform and inspire future thinking on the administrative state for years.

This book, however, will greatly contribute to an emerging consensus about the perils of the administrative state and will help shape the constitutional response. Therefore, it may well be the most important book that has been written in decades. Scholars have been denouncing the modern administrative state as incompatible with American constitutionalism for years, but nobody has made the argument as thoroughly and forcefully as Hamburger.

His fundamental thesis is that administrative law is profoundly antithetical to any conception of law, not just the conception of law articulated in the US Constitution. The crisis is not simply a constitutional crisis. It is a crisis of law itself. We risk moving from a nation governed by law to a nation of absolutism—the very absolutism that it took centuries for Britain and America to shed.

Specifically, Hamburger argues that the rise of binding administrative power represents the recurrence of extralegal, supralegal, and consolidated power. Administrative law is extralegal because it is a binding power exercised outside the law. That is, it binds citizens not through the laws and the orders of the courts, “but through other sorts of commands and orders” such as administrative legislation and adjudication.

Administrative law is supralegal because these administrative commands and orders are considered to be above the law and therefore not subject to the scrutiny of judicial review. Despite the fact that judges “have an office or duty that requires them to exercise their own, independent judgment,” they have accepted the legitimacy of extralegal administrative power and even constructed a regime of judicial deference around it. By substituting appeals from administrative proceedings for adjudication through the courts themselves, “the judges have come to participate in the administrative regime, and they thereby have been drawn into circumstances that invite deference” to administrative agencies. The result is “an entire jurisprudence of deference” in administrative law, Hamburger argues, and “not even James I got such consistent deference to his proclamations, regulations, interpretations, and adjudications” as agencies get today.

Hamburger’s argument contains a twist on previous accounts of the administrative state: in his view, the administrative state is not a new phenomenon but the return of a very old one. He alerts us to “the danger that the government already has returned to the preconstitutional past.” While “the details of absolute power in England may at first seem merely historical, it gradually will become apparent that they are disturbingly like the details of contemporary American administrative power.” Much of the first half of the book explains how developments in American administrative law parallel the British Crown’s assertion of prerogative powers in the centuries prior to the American Revolution.

One way to understand this argument is to revisit the Declaration of Independence and to read the often-overlooked indictments that comprise the middle of the document. The very charges brought by the Americans against the British in July 1776 are replicated, Hamburger argues, by contemporary administrative power.

“Giving his Assent to their Acts of Pretended Legislation”

Hamburger argues that “contemporary administrative legislation returns to an extralegal regime of lawmaking. Like the old prerogative bodies, administrative agencies act outside the law, the legislature, and the legislative process to impose binding rules and interpretations. The agencies thereby return to extralegal governance, which is precisely what constitutional law developed in the seventeenth century to prevent.”

Although they are euphemistically called “rules,” many agency rules are legally binding on citizens and have the same force and effect as laws passed by Congress. Calling a law by another name makes it no less a law. Agencies’ rules, to borrow from the Declaration, are “acts of pretended legislation.”

To make this case, Hamburger must confront the claims of scholars such as Jerry Mashaw and Kenneth Culp Davis that the Founders delegated rule-making powers to administrative agencies from the very beginning of the republic. Davis and Mashaw offer numerous historical examples in favor of their position, and one of the great contributions of Hamburger’s book is his confrontation with those examples.

To address them, he draws a basic distinction: “The natural dividing line between legislative and nonlegislative power was between rules that bound subjects and those that did not.” When, however, “executive rules purport to bind subjects, they create a regime of legislation outside the law and the lawmaking institutions and processes established by the Constitution.” Some administrative decisions, such as those regulating executive officers themselves or those that applied to people who were not subjects of the United States, “affected the public, but did not purport to bind them,” and therefore do not serve as precedent for administrative legislation. Hamburger’s application of this distinction to numerous cases in early American history is a great contribution to the debate over the nondelegation doctrine (as Gary Lawson, one of the great defenders of that doctrine, noted in his review of the book).

“Judges Dependent on his Will Alone, for the Tenure of their Offices, and the Amount and Payment of their Salaries”

Administrative law is not only extralegal in the sense that binding legislation is produced outside of the regular legislative process. Agencies render specific determinations, or adjudications, in addition to making their own laws or rules. In this way, Hamburger argues, agencies exercise not only extralegal legislative power but also extralegal judicial power. And these adjudications are not carried out by independent judges, but by administrative decision makers.

As a result, the idea of an independent judge with an independent will is sacrificed. Administrative decision makers, Hamburger writes, “must do less than exercise independent judgment, for they are precommitted to carrying out the government’s policy in its regulations, and they must submit to having their decisions reconsidered by executive officers—neither of which is compatible with judicial independence.”

Administrative law judges, to make matters worse, are not really independent, “as they can be removed or…demoted to a lower pay scale for failing to follow administrative regulations.” Thus “they lack the independence of judges on the essential question, the lawfulness of their own administrative proceedings and of administrative regulations.” Finally, the decisions of these officials are typically reviewable by political appointees, who can make their own determinations.

Therefore, across the board, there is a stunning repudiation of independent adjudication in the administrative process. At the bottom, informal determinations are made by low-level officers who are hardly independent of the agencies for which they work. Further up, administrative law judges lack constitutional tenure and salary protections and are overseen by political appointees who review their decisions. Hardly independent, the judges of the administrative state are truly dependent on the will of another: one of the core complaints in the Declaration of Independence.

“For Depriving us in Many Cases, of the Benefits of Trial by Jury”

Not only do administrative adjudications result in binding decisions without independent judges, they also violate “a wide range of procedural rights” including the protections of trial by jury. Administrative agencies have the power to launch open-ended inquisitorial investigations without a grand jury, can charge offenders with violating their regulations without a grand jury, and can reach verdicts in cases involving fines without a jury.

Hamburger argues persuasively that this cuts against episodes in the 1780s where governments tried to impose fines and forfeitures without juries, only to be struck down on constitutional grounds by state courts. Where the courts in the 1780s vindicated the right to trial by jury, and the Founders enshrined it in our Bill of Rights, modern administrative trials flout these requirements. Clearly the right to due process and trial by jury was prominent in the Declaration’s denouncement of King George III in 1776, but many of these indictments could be leveled at administrative process today. As I have previously written on this site, this might actually be the most alarming aspect of extralegal administrative power, because of the potential for abuse and intimidation of particular citizens.

“Altering Fundamentally the Forms of our Governments”

Administrative law, Hamburger argues, is not only extralegal and supralegal. It is also consolidated. By consolidated, of course, he is referring to the fact that administrative power flies in the face of the Constitution’s separation of powers. But Hamburger’s argument is slightly different from the typical argument for separation. He recasts the question as one of specialization—administrative power is unspecialized because it is undivided.

“Specialization is not a familiar way of thinking about the separation of powers,” he admits, “but it reveals how much the administrative consolidation departs from the Constitution.” The separation of powers has a fundamental advantage in that it “institutionalizes specialized decisionmaking,” yet “an agency can blend these specialized elements together . . . [and] can avoid separately deliberating about its legislative will, its executive force, and its adjudicatory judgment.” Thus the issue is not simply one of conflict of interest, where the same person can make, judge, and enforce the law. The consolidated nature of administrative power is fundamentally contrary to the forms of constitutional government, where power is separated so that the specialization of functions can be given full effect.

“A Jurisdiction Foreign to Our Constitution and Unacknowledged by our Laws”

When briefly reviewing a book as expansive, important, and detailed as Is Administrative Law Unlawful?, one can do little more than summarize its chief arguments. Most important is that people learn of the book and grasp why it deserves a careful read. But there are some questions that need to be raised, if for no other reason than to prompt the author to further the important work that has begun.

One question which I have raised in various places is whether the description of judicial deference is accurate. In Hamburger’s depiction of administrative law as supralegal, the courts are said to defer to administrative agencies. Certainly we could identify many examples of judicial deference to agencies, and the “Chevron doctrine” is a chief culprit. But do courts really defer when they profoundly disagree with an agency’s decision or its decision-making process? I think the answer is more complicated. When administrative law is taught, many recent cases are covered that involve judicial intervention in overturning an agency’s decision. Think Massachusetts v. EPA, Gonzales v. Oregon, Motor Vehicle Manufacturers Association v. State Farm, or FDA v. Brown & Williamson. On climate change, assisted suicide, airbags, and the regulation of tobacco, the courts have been pleased to intervene and overturn an agency’s handiwork.

If the courts aren’t always deferential, however, that would complicate but not contradict Hamburger’s argument. It would simply mean that this whole extralegal and supralegal regime is supported by judges who are more than happy to usurp the binding powers that normally belong to agencies—hardly better than if they kept to themselves and deferred to the administration. In the end, Hamburger is still correct that the courts fail to fulfill the basic function of constraining administrative power, and in many cases judicial intervention only serves to feed the beast.

A second (and perhaps inevitable) quibble is that the book proceeds too hastily at certain points in the argument. Despite extensive and important discussions of British and American legal history, the most interesting chapters come near the end. There, Hamburger delves into constitutional principles involving representation and the separation of powers, as well as the roots of administrative law’s infiltration of the American legal system. There are fascinating sections on questions of class and the theory of scientific knowledge undergirding the conception of American public administration, but they are strikingly brief. This is an area where more explanation would be highly profitable.

Along the same lines, there is little historical analysis of the evolution of the administrative state after the Founding period. While that is not the purpose of Hamburger’s book, our understanding of the administrative state would be greatly advanced by a more thorough study of its historical development and evolution. In particular, Hamburger at times sweeps state and local administration under the rug. He acknowledges that some local regulations consolidated power and bound citizens outside the law, but diminishes their importance: “To the extent local determinations crossed into legislation, they are historical anomalies—inherited local exceptions from American constitutional principles rather than evidence of such principles. And because they occurred at the local level, they never posed the threat of centralized extralegal power that has come with federal administrative law.” Such hasty dismissals of state and local practices are unlikely to satisfy scholars who think that they do reflect American constitutional principles rather than anomalies. If forced to integrate these practices into his argument rather than dismiss them, how might Hamburger deal with the nature of local regulation and administration?

Finally, in discussing how administrative law is “foreign to our constitution,” Hamburger inevitably confronts the “German Connection” to American administrative law. The chapter on this subject is perhaps the most interesting of the book. Hamburger’s treatment of the relationship between German legal thought and American administrative law is commendably balanced. He acknowledges the influence but does not overstate it: “It would be a mistake, for example, to assume that German ideas were in any strong sense a cause of what happened in the Anglo-American sphere.” Rather, the American Progressives “ended up assimilating elements of the heritage of Continental civilian absolutism, as transmitted through German scholarship, partly because their own anxieties and hopes led them to see their situation through lenses borrowed from the Continent, and partly because the German ideas seemed to solve American problems.”

The discussion of the German-American relationship could serve as fertile soil for many future articles, but the chapter’s best features are Hamburger’s illustration of the ways in which American municipal law and police power assimilated German thought and his discussion of the (classical) liberal reformers who attempted to bring the Rechtstaat to Germany. Not all of the German reformers wanted an unfettered administrative state, and the story of the Rechtstaat has not been adequately explored. Hamburger addresses this only briefly but it’s a great start (and has prompted some fine comments from Michael Greve on this site), though it is clear that Hamburger thinks the Rechtstaat is a poor substitute for rule under and through law.

These quibbles aside, Is Administrative Law Unlawful? is an impressive book that makes a powerful case that the modern administrative state is profoundly “foreign to our constitutions” and “unacknowledged by our [fundamental] laws.” The argument is novel and will certainly influence the direction of future scholarship on the administrative state for years to come. Let’s hope that Professor Hamburger himself will give us an encore.


Joseph Postell is Assistant Professor of Political Science at the University of Colorado-Colorado Springs. His research focuses primarily on regulation, administrative law, and the administrative state. He is the editor, with Bradley C. S. Watson, of Rediscovering Political Economy (Lexington Books, 2011) and, with Johnathan O’Neill, of Toward an American Conservatism (Palgrave Macmillan, 2013). This essay was originally published in September 2014 at Liberty Fund’s Library of Law and Liberty, and it is republished here with gracious permission from that web-magazine.

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