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Kings repealed old statutes by obtaining new statutes They issued dispensations and suspensions— similar to our waivers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

It’s Not Your Founding Fathers’ Republic Any More – Review and Commentary — Bernhardt Writer

This week, I’d like to recommend Myron Magnet’s book review: ‘It’s Not Your Founding Fathers’ Republic Any More.’ According to Magnet we abandoned the original intent of the U.S. Constitution long ago. The books he reviews suggest many remedies including automatic sunsetting of laws and regulations in the U.S. Code (USC) and Code of Federal Regulations (CFR), respectively.

Magnet says President Wilson established in the WWI era the doctrine of the “Living Constitution” administered by the Supreme Court thereby codifying judicial activism that undid civil liberty victories in the aftermath of the Civil War. Secondly, President Roosevelt established prior to and during the WWII era unelected extra-governmental commissions (aka agencies) that have independent legislative, administrative, and judicial powers within themselves. Agencies are created as a matter of course now by legislative action. FDR also strengthened the power of the judiciary to act as a permanent constitutional convention amending the document through their decisions.

Signing the U.S. Constitution

Scene at the Signing of the Constitution of the United States, Howard Chandler Christy (January 10, 1873 – March 3, 1952), Public Domain in the US

Magnet states that the Founders original intent was to limit governmental authority through the division and limited enumeration of powers. Only nineteen federal government powers were enumerated. Principle among these were: raising taxes, coining money, keeping the country safe, building post offices and post roads, regulating the armed forces, and making laws for carrying out limited governmental responsibilities. All other powers devolved to the states or the people.

Flawed through compromise (in the bad sense), the Constitution was amended from 1865 and 1870 via the Thirteenth Amendment which freed the slaves, the Fourteenth assuring black Americans citizenship and civil rights, and the Fifteenth that prohibited states from denying black citizens the right to vote.

However, a series of Supreme Court decisions undid the power of those amendments won through Civil War bloodshed. In 1873, the Supreme Court subverted the Fourteenth Amendment through the Slaughter-House Cases, stating that the amendment did not include the rights: to own property; to court access; to equal taxation; to vote; to live, work, and travel where you want; and to have the protection of the Bill of Rights against state and federal violation. The Court held the amendment only granted the right to travel on interstate waterways and to petition the federal government for redress of grievances

In 1876, the Supreme Court, in their United States v. Cruikshank decision, threw out a federal indictment of Louisiana murderers for conspiracy to deprive more than 100 freedmen of their constitutional rights, on the grounds that the killers had violated no federal rights that extended to the states, citing the Slaughter-House Cases. This decision led Southern Democrats to enact Jim Crow laws. Cruikshank smoothed the way for Plessy v. Ferguson, in 1896, which enabled Southern states to segregate transportation and schools and outlaw interracial marriage.

In 1908, Wilson wrote:

No doubt a great deal of nonsense has been talked about the inalienable rights of the individual, and a great deal that was mere vague sentiment and pleasing speculation has been put forward as fundamental principle…Living political constitutions must be Darwinian in structure and practice…The chief instrumentality by which the law of the Constitution has been extended to cover the facts of national development has of course been judicial interpretations—the decisions of courts. The process of formal amendment of the Constitution was made so difficult by the…Constitution itself that it has seldom been feasible to use it; and the difficulty of formal amendment has undoubtedly made the courts more liberal, not to say more lax, in their interpretation than they would otherwise have been.

Wilson went on to advocate that the judicial system adapt the Constitution to the times through their decisions. In other words, the courts were to “make the law for their own day.”

Although the Supreme Court deflected attempts to control the national economy, executive pressure during the New Deal swayed the Court’s 1942 Wickard v. Filburn decision. Filburn, a dairy farmer, was fined for not limiting his wheat crop in accordance with the Agricultural Adjustment Act. The act was meant to curb a perceived deflationary overproduction crisis (held, at the time, to be a cause of the Depression). Congress established the act based on the Interstate Commerce Clause. The act established a crop quota system by state. These quotas were then allocated to individual farms by the states. Filburn used his wheat locally to feed his cows. But the Court decided that his wheat competed with wheat in commerce (he could have purchased it instead of growing it) so, therefore, it was subject to the Commerce clause and the act’s quotas.

In the same period, FDR noted, “The practice of creating independent regulatory commissions, who perform administrative work in addition to judicial work, threatens to develop a ‘fourth branch’ of Government for which there is no sanction in the Constitution.” He was responsible for numerous legislative Acts and their associated bureaucratic agencies.

So much for the intent of Lincoln’s Gettysburg Address:

FOUR SCORE AND SEVEN YEARS AGO OUR FATHERS BROUGHT FORTH ON THIS CONTINENT A NEW NATION CONCEIVED IN LIBERTY AND DEDICATED TO THE PROPOSITION THAT ALL MEN ARE CREATED EQUAL…

IT IS RATHER FOR US TO BE HERE DEDICATED TO THE GREAT TASK REMAINING BEFORE US

THAT FROM THESE HONORED DEAD WE TAKE INCREASED DEVOTION TO THAT CAUSE FOR WHICH THEY GAVE THE LAST FULL MEASURE OF DEVOTION

THAT WE HERE HIGHLY RESOLVE THAT THESE DEAD SHALL NOT HAVE DIED IN VAIN

THAT THIS NATION UNDER GOD SHALL HAVE A NEW BIRTH OF FREEDOM~AND

THAT GOVERNMENT OF THE PEOPLE BY THE PEOPLE FOR THE PEOPLE SHALL NOT PERISH FROM THE EARTH

I must admit, with everything going on lately, I became overwhelmed. I’m sure it’s happened to you too. Please forgive the hiatus. We’ll cover two special topics from Professor Siegel’s book Revolt Against the Masses in the future.