The History and Danger of Administrative Law – A Review

Administrative law is thought to be a recent threat to the American republic because it appeared in the last 120 years. Considered essential for decades by our leaders to handle the challenges of a complex and modern civilization, it was supposedly unforeseen by the framers of the U.S. Constitution.

Instead, Philip Hamburger proves that this corruption of our republic is very old. In his article, “The History and Danger of Administrative Law,” he says administrative law is the reinstitution of prerogative or absolute power of kings, now enforced by unelected bureaucrats. Hamburger says, “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.” It is potentially the end of representative democracy.

As many of us know, the U.S. Constitution authorizes three government powers—legislative power entrusted to Congress, executive power entrusted to the president and his subordinates, and judicial power entrusted to the courts.

Acts of administrative law or administrative power are binding or constraining edicts by the executive branch that replace Congress’s binding legislative power and the Judiciary’s legal adjudications.

Prerogative power

Hamburger uses England’s history to exhibit the prerogative power of kings. English kings were expected to govern through the laws of Parliament and rulings of law courts. However, those same kings acted on their own when they wanted to evade those laws and rulings. Such evasions were the exercise of prerogative power. The following table compares these two means of rule.

Rule Through Law Prerogative Power
Kings constrained their subjects through statutes passed by Parliament They constrained subjects through proclamations or decrees—similar to our rules or regulations
Kings repealed old statutes by obtaining new statutes They issued dispensations and suspensions— similar to our waivers
Kings enforced the law through the law courts They enforced their commands through their prerogative courts (e.g., King’s Council, Star Chamber, High Commission) — similar to our administrative courts
English judges used their independent judgment to resolve legal disputes Kings expected judges to defer to their own decrees and to the holdings and interpretations of their extra-legal prerogative courts
Parliament had the power to make laws, the law courts had the power to adjudicate, and the king had the power to exercise force Kings or their prerogative courts exercised all government powers, overriding these divisions (e.g., the Star Chamber issued regulations, and prosecuted and adjudicated infractions.)

Defenders of England’s prerogative power boldly described it as absolute power. Necessity, a king’s justification for prerogative power, was said to be not bound by law.

Never-the-less, prerogative power was opposed. In 1215, England’s barons codified in the Magna Carta that no free man could be summoned or imprisoned extralegally, the King must use processes of law as then defined.

In 1354 and 1368, Parliament enacted due process statutes to protect men from arbitrary questioning by the king’s council.

In 1610, judges opined that royal proclamations were unlawful and void when King James made law via proclamations. When the king demanded judicial deference to his interpretations of law, these judges refused.

In 1641, Parliament abolished the king’s Star Chamber and High Commission which engaged in extra-legal lawmaking and adjudication.

As English constitutional law developed, it prohibited extra-legal (i.e., outside the law,) supra-legal (i.e., above the law,) or consolidated (i.e., joint legislative, executive, and judicial) power.

These attributes are compared as exercised in England and America in the table below.

Absolutism Comes to America

Early Americans had experienced England’s prerogative power that sidestepped law and overruled legal rights. The framers barred absolute power by making the U.S. Constitution the source of all government power. Notwithstanding, absolute power has reasserted itself in liberal democracies including America.

While England and America defeated absolute power early-on, it found fertile ground in 17th and 18th century Prussia where it grew as bureaucratic administrative power. In the 19th century, Prussia vaunted their efficient bureaucracy that evaded constitutional law and rights.

American intellectuals flocked to Germany to study this new governmental innovation. During this time, American Progressives, disappointed with elected, deliberative legislatures poor speed and quality of results sought to impose administrative power as a matter of pragmatism and necessity.

In the 1920s, Progressives openly acknowledged the similarity between regulations issued by American administrative officers and binding proclamations issued by pre-modern English kings. However, they suppressed this discussion because it undermined their claims about administrative power’s modernity and lawfulness.

Thus, America reestablished absolute power in contravention of the Constitution. This matured over the past 120 years into what we see today.

Definition England America
Extra-legal power is exercised outside the law It bound the public through edicts and proclamations, not laws and statues Binds not through statutes but through regulations and not through court decisions but through agency adjudications
Supra-legal power is exercised above the law Kings expected judges to defer to it instead of exercising their own independent judgment. Judges defer to administrative power instead of employing independent judgment
Consolidated power joins legislative, executive, and judicial power Kings or their prerogative courts operated this way Administrative agencies consolidate power without due process rights

In conclusion, Hamburger states,

…The United States Constitution expressly bars the delegation of legislative power. 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.

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…  Administrative adjudication thus becomes an open avenue for evasion of the Bill of Rights.

Every alphabet executive agency exercises administrative power. Though agency bureaucrats are unelected, and therefore, unaccountable to the American people, some are unaccountable to the Congress and the President (e.g., Consumer Financial Protection Bureau (CFPB).)

Congress, having abdicated their constitutional deliberative and legislative responsibilities, now exercises “executive oversight” through establishment of, appropriation for, and investigation of these agencies. The constitutional Judiciary has abdicated its responsibility to interpret the law and now defers to agency decisions (e.g., Chevron deference.) offering little or no relief to the American people as the agencies exercise consolidated power.

We, as a nation, stand on the precipice of a dictatorship initiated 120 years ago. Its establishment will be our “Augustus” moment, when Romans realized that their republic had been transformed into a dictatorship.

I urge you to vote for the candidate who has cut regulations, reduced administrative power, and promises to do more for the benefit of the American people than any candidate in many decades.

Who Are the Most Powerful People in America? December 10, 2018, YouTube, PragerU