The Noxious Whiff of the Old Regime Threatens

eaglePhilip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia, is a scholar of Constitutional Law and its history.   According to Professor Hamburger, the standard narrative used by the left to justify the very existence of the administrative state and thus legitimate its power is that “America in the late 19th and early 20th centuries entered into a realm of industrialization, corporate power and concentration, that entailed the need for expert rule in executive agencies, to adjust the social order to rapidly arising needs not anticipated in the ‘horse and buggy’ Constitution.”

In his latest book, Is Administrative Law Unlawful? Professor Hamburger says that the entire structure of executive-agency rule-making is illegitimate and the rules and the regulators have to go since “their job is to fling down the Constitution and dance on it.”   Administrative agencies, which make rules, carry them out, and adjudge and punish infractions thereof, blend together legislative, executive and judicial powers into one giant anti-constitutional Cuisinart.

James Madison, following political theorist Baron de Montesquieu, saw the separation of powers as an essential bulwark of American liberty.   For starters, the Constitution lodges all legislative power in Congress which legally cannot delegate that function; therefore, it was illegal for Congress to pass a law that created executive branch agencies charged with writing rules with the force of law to accomplish whatever end they choose. “The power of the legislative,” as political philosopher John Locke wrote is “only to make laws and not to make legislators.”

Moreover, judicial power is as undelegatable as legislative power, since the Constitution lodges all of it in the judicial branch. So, while administrative [agency] judges may look “just like real judges, they are no such thing – and not only because the Constitution makes it impossible for them to be so but also because, unlike real judges, their sole duty, rather than using their independent and expert judgment to carry out the law of the land, is to carry out the policy of their agency, as set and overseen by their department chief or the relevant cabinet secretary who in turn oversees him.

Equally offensive, individuals or corporations can be called up before one of these gimcrack agencies charged with offenses, fined or receive cease and desist orders, all criminal penalties, without due process of law. Acting sometimes on tips, these agencies do not seek a subpoena based on probable cause to search private papers; they can just demand them. From corporations and banks they can extort millions in settlements or force companies to allow inspectors to enter their premises without warrants through the use of threats and intimidation. Indeed, through their informal adjudications, these agencies routinely evade not just the Constitution, but also the 1946 Administrative Procedures Act that gives them their fig leaf of legitimacy.

The world historical accomplishment of the American Revolution and of the Constitution that came out of it, Hamburger notes, was that they turned upside-down the traditional government model of “elite power and popular subservience.” Americans ‘”made themselves masters and lawmakers their servants” through a Constitution that they themselves had made. They observed laws that had legitimacy because they themselves had consented to them, through representatives whom they themselves had chosen.  And, “they made clear that not only their executives but even their legislatures were without absolute power.” Citizens claimed for themselves the liberty to do anything that the laws didn’t expressly forbid, and that freedom richly nourished talent, invention, experimentation, specialization – all the human qualities that are the fuel of progress and modernity.

The advent of administrative power brought back a noxious whiff of the old regime since it “threatens the confidence of individuals and their organizations in their legally protected freedom.”   Why invest, if a mere administrator, without much political or legal constraint, can later prohibit your investment? When enter a business, if an administrator, without even adopting a regulation, can use an interpretation or waiver to give advantages to your competitors,” who conspire in the rule-making process and have armies of lawyers and lobbyists to romance the regulators and sometimes even write the regulations? The result is a diminution of “investment, wealth, innovation, experimentation, and personal happiness.”

The administrative state is a kind of “soft despotism”… .“Prerogative power has crawled back out of its constitutional grave in administrative form and “inevitably deprives Americans of their liberty.” It more closely resembles a modern dictatorship, whose essence, as Christopher Hitchens once put it, is its “unpredictability and caprice; those who live under it must never be able to relax, must never be quite sure they have followed the rules correctly or not. Thus, the ruled can always be found in the wrong.”

“Today, only the shell of a Republic experiment remains. Within it another government has arisen in which new masters once again asset themselves, issuing commands as if they were members of a ruling class and as if the people were merely their servants. Self-government has given way to a system of submission.”

Additional sources:  The Unlawful Administrative State: A Conversation with Philip Hamburger

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