Hamburger’s “Is Administrative Law Unlawful?” (With Spoilers!)
Philip Hamburger‘s Is Administrative Law Unlawful? has been getting much attention in the blogosphere recently. Hamburger guest-blogged at the Volokh Conspiracy — and his series of posts laid out his position, an emphatic “Yes”, with admirable clarity — and his detractors (Adrian Vermeule, here and here) and supporters (Gary Lawson, Michael Ramsey) are now hammering at one another.
Like Vermeule, I think the answer is “No”. The analogy to absolute prerogative power is entertaining, but it is flawed. Modern administrative law is not like the Star Chamber. The Stuarts did not have to comply with the Administrative Procedure Act and the D.C. Circuit was not watching over their shoulders taking a “hard look” at what was being done.
Moreover, it is a little bit odd to look at English law in the 16th and 17th centuries and then refuse to take account of its subsequent evolution. By its nature, English constitutional law is in a state of constant flux. In particular, English courts have made progress — haltingly, but undeniably — in limiting the exercise of prerogative powers and unfettered administrative discretion. There is no Star Chamber any more. Nowadays, all such powers are subject to judicial review on the conventional grounds of rationality, legality and fairness, subject to an ever-lowering threshold of justiciability. In this way, English courts have sought to legitimate administrative power by enforcing the rule of law. I do not see how this is different in principle from what American courts now do, albeit that the applicable legal doctrines are somewhat different (indeed, the American requirements are more rigorous in some ways, especially as to rule-making and adjudication). Modern American law is more like modern English law than it is like 16th and 17th century English law.
I will come to Hamburger’s defence on one limited point, however. Both Vermeule and Lawson express puzzlement over Hamburger’s use of the term “unlawful”. In fact — although Hamburger himself does not use the terms this way — his use is consistent with the English distinction between “unlawful” and “unconstitutional” action. To take a pertinent example, the use of “Henry VIII clauses” — grants of power to the executive to modify parts of legislation — is lawful, in the sense that courts will enforce such clauses. But use of such clauses is sometimes said to be unconstitutional, in the sense that it is not desirable to give the executive the authority to modify Acts of Parliament. Subjecting the exercise of such powers to judicial oversight makes their use less objectionable, but Henry VIII clauses continue to excite claims of unconstitutionality, especially when they are of broad scope.
As I understand Hamburger’s argument, the use of administrative power to bind subjects is unconstitutional in this broader sense, because it departs from the Montesquian principles that only the legislature may legislate and only the judiciary may adjudicate. These days, this view has few supporters. Hamburger also argues that it is unconstitutional in the American context, because the U.S. Constitution enshrines a strict separation of legislative, executive and judicial powers that is breached by the existence of the administrative state; the fact that the document was drafted shortly after the misuse of prerogative by English kings gives Hamburger’s argument an originalist flavour. Given that his audience is principally American, this is unsurprising, but means that his critique has little or no force outside the U.S. (and, of course, his detractors think it has little or no force in the U.S. either).
I am not persuaded that Hamburger’s argument is well founded (though he makes some fair points) but the type of argument he makes is one familiar to the Commonwealth ear, albeit with an American twang. Of course, Hamburger does not use the terms in a conventional way, so it may be that my defence is ill-founded!
This content has been updated on September 3, 2014 at 10:47.