September 2014 | Volume 43, Number 9
Philip Hamburger
Columbia Law School
Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He received his B.A. from Princeton
University
and his J.D. from Yale Law School. He has also taught at the University
of Chicago Law School, the George Washington University Law School, the
University of Virginia Law School, and Northwestern Law School. A
contributor to National Review Online, he has written for several law
reviews and journals, including the
American Journal of Legal History, the
Supreme Court Review, the
Notre Dame Law Review, and the
Journal of Law and Politics. He is the author of
Separation of Church and State, Law and Judicial Duty, and, most recently,
Is Administrative Law Unlawful?
The following is adapted from a speech delivered on May 6, 2014,
at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional
Studies and Citizenship in Washington, D.C., as part of the AWC Family
Foundation Lecture Series.
There are many
complaints about administrative law—including that it is arbitrary, that
it is a burden on the economy, and that it is an intrusion on freedom.
The question I will address here is whether administrative law is
unlawful, and I will focus on constitutional history. Those who forget
history, it is often said, are doomed to repeat it. And this is what has
happened in the United States with the rise of administrative law—or,
more accurately, administrative power.
Administrative law is commonly defended as a new sort of power, a
product of the 19th and the 20th centuries that developed to deal with
the problems of modern society in all its complexity. From this
perspective, the Framers of the Constitution could not have anticipated
it and the Constitution could not have barred it. What I will suggest,
in contrast, is that administrative power is actually very old. It
revives what used to be called prerogative or absolute power, and it is
thus something that the Constitution centrally prohibited.
But first, what exactly do I mean by administrative law or
administrative power? Put simply, administrative acts are binding or
constraining edicts that come, not through law, but through other
mechanisms or pathways. For example, when an executive agency issues a
rule constraining Americans—barring an activity that results in
pollution, for instance, or restricting how citizens can use their
land—it is an attempt to exercise binding legislative power not through
an act of Congress, but through an administrative edict. Similarly, when
an executive agency adjudicates a violation of one of these edicts—in
order to impose a fine or some other penalty—it is an attempt to
exercise binding judicial power not through a judicial act, but again
through an administrative act.
In a way we can think of administrative law as a form of off-road
driving. The Constitution offers two avenues of binding power—acts of
Congress and acts of the courts. Administrative acts by executive
agencies are a way of driving off-road, exercising power through other
pathways. For those in the driver’s seat, this can be quite
exhilarating. For the rest of us, it’s a little unnerving.
The Constitution authorizes three types of power, as we all learned
in school—the legislative power is located in Congress, executive power
is located in the president and his subordinates, and the judicial power
is located in the courts. How does administrative power fit into that
arrangement?
The conventional answer to this question is based on the claim of the
modernity of administrative law. Administrative law, this argument
usually goes, began in 1887 when Congress created the Interstate
Commerce Commission, and it expanded decade by decade as Congress
created more such agencies. A variant of this account suggests that
administrative law is actually a little bit older—that it began to
develop in the early practices of the federal government of the United
States. But whether it began in the 1790s or in the 1880s,
administrative law according to this account is a post-1789 development
and—this is the key point—it arose as a pragmatic and necessary response
to new and complex practical problems in American life. The pragmatic
and necessitous character of this development is almost a mantra—and of
course if looked at that way, opposition to administrative law is
anti-modern and quixotic.
But there are problems with this conventional history of
administrative law. Rather than being a modern, post-constitutional
American development, I argue that the rise of administrative law is
essentially a re-emergence of the absolute power practiced by pre-modern
kings. Rather than a modern necessity, it is a latter-day version of a
recurring threat—a threat inherent in human nature and in the
temptations of power.
The Prerogative Power of Kings
The constitutional history of the past thousand years in common law
countries records the repeated ebb and flow of absolutism on the one
side and law on the other. English kings were widely expected to rule
through law. They had Parliament for making law and courts of law for
adjudicating cases, and they were expected to govern through the acts of
these bodies. But kings were discontent with governing through the law
and often acted on their own. The personal power that kings exercised
when evading the law was called prerogative power.
Whereas ordinarily kings bound their subjects through statutes passed
by Parliament, when exercising prerogative power they bound subjects
through proclamations or decrees—or what we today call rules or
regulations. Whereas ordinarily kings would repeal old statutes by
obtaining new statutes, when exercising prerogative power they issued
dispensations and suspensions—or what we today call waivers. Whereas
ordinarily kings enforced the law through the courts of law, when
exercising prerogative power they enforced their commands through their
prerogative courts—courts such as the King’s Council, the Star Chamber,
and the High Commission—or what we today call administrative courts.
Ordinarily, English judges resolved legal disputes in accordance with
their independent judgment regarding the law. But when kings exercised
prerogative power, they expected deference from judges, both to their
own decrees and to the holdings and interpretations of their extra-legal
prerogative courts.
Although England did not have a full separation of powers of the sort
written into the American Constitution, it did have a basic division of
powers. Parliament had the power to make laws, the law courts had the
power to adjudicate, and the king had the power to exercise force. But
when kings acted through prerogative power, they or their prerogative
courts exercised all government powers, overriding these divisions. For
example, the Star Chamber could make regulations, as well as prosecute
and adjudicate infractions. And defenders of this sort of prerogative
power were not squeamish about describing it as absolute power.
Absolutism was their justification.
Conceptually, there were three central elements of this absolutism:
extra-legal power, supra-legal power, and the consolidation of power. It
was extra-legal or outside the law in the sense that it bound the
public not through laws or statutes, but through other means. It was
supra-legal or above the law in the sense that kings expected judges to
defer to it—notwithstanding their duty to exercise their own independent
judgment. And it was consolidated in the sense that it united all
government powers—legislative, executive, and judicial—in the king or in
his prerogative courts. And underlying these three central elements was
the usual conceptual justification for absolute power: necessity.
Necessity, it was said, was not bound by law.
These claims on behalf of absolutism, of course, did not go
unchallenged. When King John called Englishmen to account extralegally
in his Council, England’s barons demanded in Magna Carta in 1215 that no
freeman shall be taken or imprisoned or even summoned except through
the mechanisms of law. When 14th century English kings questioned men in
the king’s Council, Parliament in 1354 and 1368 enacted due process
statutes. When King James I attempted to make law through proclamations,
judges responded in 1610 with an opinion that royal proclamations were
unlawful and void. When James subsequently demanded judicial deference
to prerogative interpretations of statutes, the judges refused. Indeed,
in 1641 Parliament abolished the Star Chamber and the High Commission,
the bodies then engaging in extra-legal lawmaking and adjudication. And
most profoundly, English constitutional law began to develop—and it made
clear that there could be no extra-legal, supra-legal, or
consolidated power.
The Rise of Absolutism in America
The United States Constitution echoes this. Early Americans were very
familiar with absolute power. They feared this extra-legal,
supra-legal, and consolidated power because they knew from English
history that such power could evade the law and override all legal
rights. It is no surprise, then, that the United States Constitution was
framed to bar this sort of power. To be precise, Americans established
the Constitution to be the source of all government power and to bar any
absolute power. Nonetheless, absolute power has come back to life in
common law nations, including America.
After absolute power was defeated in England and America, it circled
back from the continent through Germany, and especially through Prussia.
There, what once had been the personal prerogative power of kings
became the bureaucratic administrative power of the states. The
Prussians were the leaders of this development in the 17th and 18th
centuries. In the 19th century they became the primary theorists of
administrative power, and many of them celebrated its evasion of
constitutional law and constitutional rights.
This German theory would become the intellectual source of American
administrative law. Thousands upon thousands of Americans studied
administrative power in Germany, and what they learned there about
administrative power became standard fare in American universities. At
the same time, in the political sphere, American Progressives were
becoming increasingly discontent with elected legislatures, and they
increasingly embraced German theories of administration and defended the
imposition of administrative law in America in terms of pragmatism and
necessity.
The Progressives, moreover, understood what they were doing. For
example, in 1927, a leading Progressive theorist openly said that the
question of whether an American administrative officer could issue
regulations was similar to the question of whether pre-modern English
kings could issue binding proclamations. By the 1920s, however,
Progressives increasingly were silent about the continuity between
absolute power and modern administrative power, as this undermined their
claims about its modernity and lawfulness.
In this way, over the past 120 years, Americans have reestablished
the very sort of power that the Constitution most centrally forbade.
Administrative law is extra-legal in that it binds Americans not through
law but through other mechanisms—not through statutes but through
regulations—and not through the decisions of courts but through other
adjudications. It is supra-legal in that it requires judges to put aside
their independent judgment and defer to administrative power as if it
were above the law—which our judges do far more systematically than even
the worst of 17th century English judges. And it is consolidated in
that it combines the three powers of government—legislative, executive,
and judicial—in administrative agencies.
Let me close by addressing just two of many constitutional problems
illuminated by the re-emergence of absolutism in the form of
administrative power: delegation and procedural rights.
One standard defense of administrative power is that Congress uses
statutes to delegate its lawmaking power to administrative agencies. But
this is a poor defense. The delegation of lawmaking has long been a
familiar feature of absolute power. When kings exercised extra-legal
power, they usually had at least some delegated authority from
Parliament. Henry VIII, for example, issued binding proclamations under
an authorizing statute called the Act of Proclamations. His binding
proclamations were nonetheless understood to be exercises of absolute
power. And in the 18th century the Act of Proclamations was condemned as
unconstitutional.
Against this background, the United States Constitution expressly
bars the delegation of legislative power. This may sound odd, given that
the opposite is so commonly asserted by scholars and so routinely
accepted by the courts. But read the Constitution. The Constitution’s
very first substantive words are, “All legislative Powers herein granted
shall be vested in a Congress of the United States.” The word “all” was
not placed there by accident. The Framers understood that delegation
had been a problem in English constitutional history, and the word “all”
was placed there precisely to bar it.
As for procedural rights, the history is even more illuminating.
Administrative adjudication evades almost all of the procedural rights
guaranteed under the Constitution. It subjects Americans to adjudication
without real judges, without juries, without grand juries, without full
protection against self-incrimination, and so forth. Like the old
prerogative courts, administrative courts substitute inquisitorial
process for the due process of law—and that’s not just an abstract
accusation; much early administrative procedure appears to have been
modelled on civilian-derived inquisitorial process. Administrative
adjudication thus becomes an open avenue for evasion of the Bill of
Rights.
The standard justification for the administrative evasion of
procedural rights is that they apply centrally to the regular courts,
but not entirely to administrative adjudication. But the history shows
that procedural rights developed primarily to bar prerogative or
administrative proceedings, not to regulate what the government does in
regular courts of law. As I already mentioned, the principle of due
process developed as early as the 14th century, when Parliament used it
to prevent the exercise of extra-legal power by the King’s Council. It
then became a constitutional principle in the 17th century in opposition
to the prerogative courts. Similarly, jury rights developed partly in
opposition to administrative proceedings, and thus some of the earliest
constitutional cases in America held administrative proceedings
unconstitutional for depriving defendants of a jury trial.
* * *
In sum, the conventional understanding of administrative law is
utterly mistaken. It is wrong on the history and oblivious to the
danger. That danger is absolutism: extra-legal, supra-legal, and
consolidated power. And the danger matters because administrative power
revives this absolutism. The Constitution carefully barred this threat,
but constitutional doctrine has since legitimized this dangerous sort of
power. It therefore is necessary to go back to basics. Among other
things, we should no longer settle for some vague notion of “rule of
law,” understood as something that allows the delegation of legislative
and judicial powers to administrative agencies. We should demand rule
through law and rule under law. Even more fundamentally, we need to
reclaim the vocabulary of law: Rather than speak of administrative law,
we should speak of administrative power—indeed, of absolute power or
more concretely of extra-legal, supra-legal, and consolidated power.
Then we at least can begin to recognize the danger.
The present four-year California drought is not novel --
even if President Barack Obama and California Gov. Jerry Brown have
blamed it on man-made climate change.
