Is Administrative Law Unlawful?

Hamburger Philip

Is administrative law unlawful? This is a central question in contemporary law and politics, and it has become all the more important with the expansion of the modern administrative state. While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. With "Is Administrative Law Unlawful?", Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution – and constitutions in general – were designed to prevent. With a clear yet many-layered argument that draws on history, law, and legal thought, "Is Administrative Law Unlawful?" reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious – and profoundly unlawful – return to dangerous pre-constitutional absolutism.

About the Author

Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He is the author of "Law and Judicial Duty" and "Separation of Church and State".

Reviews

"'Is Administrative Law Unlawful?' is a work of the very highest quality, a learned scholarly exegesis setting out the intellectual foundations – in medieval and early modern English constitutional thought – for the proposition that the contemporary American administrative state is profoundly unconstitutional and unlawful. Philip Hamburger's argument is intricately wrought and forcefully expressed. Its indictment of modern administration in America doubles as a major statement on the virtues of a genuinely constitutional government" – Ken I. Kersch, Boston College

"With characteristic erudition, Philip Hamburger shows how virtually every aspect of the modern administrative state undermines the Anglo-American legal tradition – or at least that part of the tradition that most informed the American founding. It is a provocative thesis, but one that is amply supported by extensive scholarly argument and fascinating historical study. Hamburger makes an impressive case that modern administrative law owes its lineage to claims of monarchical prerogative and civil law absolutism that were precisely the ideas that the American revolution was trying to reject. This is a tremendously important book" – Gary S. Lawson, Boston University School of Law

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