“Is Administrative Law Unlawful,” by Philip Hamburger, The University of Chicago Press, 648 pages, $55.
When kings still ruled, law was what the king or his agents said it was.
People could be tried in secret, favorites exempted from law and property seized on a whim.
Private individuals given license by the king could even set up laws themselves and dispense justice as they saw fit.
That was long ago, though — 1,000 years past. Those days are long gone.
Or are they?
According to “Is Administrative Law Unlawful,” by Philip Hamburger, everything old is new again. The modern administrative state now used by the federal government was sold back in the 1890s as an original and uniquely innovation in response to the challenges of the modern world.
Instead, as Professor Hamburger shows, it bears striking parallels to royal prerogative laws dating to medieval times. Back then, prerogative law gave kings the ability to issue law through proclamations, and the power to dispense with laws passed by the legislature or to suspend laws for favored individuals.
In a process starting in the late 1400s, citizens in Great Britain and what became the United States pushed back against prerogative law. The English Civil War and the Revolution of 1688 eliminated royal prerogative in Britain.
The American Revolution established even legislatures could not assert prerogative rights. Hamburger details this process, showing why it led to the constitution of enumerated powers established by the Constitutional Convention of 1787.
Hamburger also illustrates how many powers now granted to administrative agencies of the federal government restore prerogative powers. Today, agencies write regulations that work like royal proclamations, issue waivers to laws (suspending powers) and subdelegate their powers to private bodies.
Their administrative courts procedures mirror Star Chamber courts, suspending due process. Indeed, Hamburger shows they revive the inquisition courts of the Counterreformation, where asserting innocence leads to greater punishment than pleading guilty.
“Is Administrative Law Unlawful” is a long book which challenges the reader. Its language is readable, but the ideas require thought and reflection. It gains power throughout, building strength to the end.
Hamburger lays out his arguments with detailed thoroughness. He uses history and legal tradition to show how the Constitution was established, why it was structured as it was and where current administrative law deviates from its intent.
A spectacular piece of scholarship, it leads logically to its conclusion — today’s administrative state saddles 21st century America with legal processes of the Dark Ages. Can we afford it?