Columbia Law School professor Philip Hamburger’s The Administrative Threat makes a powerful case that the executive branch has assumed “absolute power,” albeit in a “soft” form. It is entirely unConstitutional.
Through its administrative bureaucracy, the executive branch has taken on the power to create “legal obligation—the obligation to obey” (3). Americans have long assumed that “a rule could have the obligation of law only if it came from the constitutionally established legislature elected by the people” and that judicial power could only be exercised by a “constitutionally appointed judge.” In the Constitution, Congress alone has the authority to make law, and only the courts pass conclusive judgment. These powers are not granted to the executive branch (3).
Hamburger shuts down the argument that administrative law only implements laws passed by Congress, exercising a power that Congress has delegated. When the Constitution says “All legislative powers . . . shall be vested in Congress,” it “bars subdelegation” (24). It’s no more Constitutional for Congress to delegate the power to impose legal obligation than it would be for a judge to delegate power to deliver a judgment to a clerk (24).
Administrative law tramples Constitutional guarantees of procedural rights: “federal agencies can demand testimony and private records and can impose fines without even going to court, let along offering must administrative process” (32). Administrative law removes the right to a jury trial (33-34), and “binding administrative warrants have become commonplace” (37). Administrative power is absolute power because it operates extralegally, and “almost all of the Constitution’s procedural rights . . . were designed not only to set standards in court but also to defeat extralegal adjudication” (36).
Substantive rights don’t care any better. Historically, freedom of speech was understood as “freedom from licensing – from the requirement of having to get prior administrative permission” (40). Various federal agencies suppress free speech in precisely this sense: “The Federal Communications Commission imposes administrative licensing on broadcasters and thereby limits what they say. The SEC uses this sort of licensing to regulate some financial disclosures. Least well known but perhaps most dangerous, Health and Human Services establishes licensing, conducted by institutional review boards, for what is said in much empirical academic research and even for what can be published about it” (40). Bureaucrats don’t have to prove some violation of laws governing speech in court; they can force speakers “to seek prior administrative permission” (41). This is precisely what the First Amendment was designed to prevent.
The courts don’t stop this abuse of Constitutional rights, but protect and advance it. Judges defer to agency interpretations of rules and this deference was upheld by the Supreme Court in Chevron v. Natural Resource Defense Council (1984). This is not only an abdication of judicial power, but creates systematic bias in favor of the bureaucracy: “When the government is a party to a case, the doctrines that require judicial deference to agency interpretation are precommitments in favor of the government’s legal position, and the effect is systematic judicial bias” (43). Judges even rely on the agency’s fact-finding in order to establish a record of a case, and thus rely “on a record that is merely one party’s version of the facts” (46).
Hamburger traces administrative law to the revival of absolute power in German law during the 18th century, but it comes to America as a tool of progressivism. There’s a link between the expansion of the franchise and the rise of administrative law. As more people received the right to vote, right-thinking people worried that the wrong sorts of people had too much power to make decisions. Woodrow Wilson complained that reformers had to persuade a large and diverse and ignorant population about their cause, and was happy that “much legislative power would be shifted out of an elected body and into the hands of the right sort of people” – members of the knowledge class (55).
This shift was sometimes overtly racist, but even when it was not, it meant that power moved from “classes and attachments that are more apt to find expression through representative government” and into the hands of the a homogenous class of experts (56). Administrative power “comes with little accountability to – or even sympathy for – local, regional, religious, and other distinctive communities” (56). Hamburger draws regular and chilling parallels between the English crown’s use of extralegal procedures and institutions (Star Chamber, for instance).
Hamburger’s arguments have circulated in less sophisticated forms for a long time on the Right. Rarely have they come from law professors, even more rarely from Columbia law professors. The book is as important for its source as for its substance.
Hamburger makes a persuasive case that administrative law is “the civil liberties issue of our time” (4). And his calm, incisive treatment of the American version of absolute power is an illuminating a primer on the frustrations and hopes of Trump supporters.