From Prerogative to Administrative Power

My new book, Is Administrative Law Unlawful?, argues that administrative power revives prerogative power. This is not, however, an entirely original thesis. On the contrary, it once was widely acknowledged by proponents of administrative power.

In the late 1880s, Woodrow Wilson looked across the Atlantic to Bismarck’s Prussia for inspiration. He envied the success of European monarchies in “concentrat[ing] legislative leadership,–leadership, that is, in progressive policy.” He even praised “monarchy” for “its perfect model of progressive order” and hoped for “concentrating” the United States “by putting leaders forward, vested with abundant authority in the conceptions and execution of policy.” He therefore urged that “[o]ur democracy, plainly, was not a body of doctrine; it was a stage of development”–a stage that had to be left behind. Ultimately, he concluded, “we shall remain a nation only by obeying leaders.”

Most other American advocates of administrative power were not as extreme, but well into the twentieth century, they recognized what was at stake. As John Dickinson–soon to be a professor of law at the University of Pennsylvania–explained in 1927, “the question of whether or not the king can issue ordinances parallels our modern question as to whether or not an executive body or officer can establish regulations; and the arguments used pro and con have followed much the same lines.”

It therefore seems worth exploring the similarities between the old prerogative power and the new administrative power. The prerogative power to which administrative power returns was, to be precise, the absolute prerogative. This was the power by which a king or his prerogative tribunals could bind his subjects with legislative and adjudicatory edicts, thus allowing him to rule not through the acts of the legislature and the courts, but extralegally. Administrative power largely revives this extralegal mode of governance, except that whereas it once was a personal prerogative power, it now is a bureaucratic administrative power.

This is constitutionally significant because the absolute prerogative was the problem that led to the development of constitutional law. When seventeenth-century English kings used their absolute prerogative power to evade governance through Parliament and the courts, the English responded by developing ideas of constitutional law. In particular, they concluded that their constitution, even if its origins were lost in the mists of time, had placed legislative power in Parliament and judicial power in the courts, thus precluding the exercise of these powers by the king in his prerogative tribunals.

Eighteenth-century Americans were deeply familiar with this history, and like the English, they used constitutional law to bar binding extralegal or prerogative power. As put by John Adams in 1776, Americans aimed to establish governments in which a governor or president had “the whole executive power, after divesting it of those badges of domination called prerogatives,” by which Adams meant, of course, the absolute prerogatives. So far did Americans go in this direction that when James Madison worried about the threat from legislative tyranny, he complained in Federalist 48 that the “founders of our republics” seem “never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate.”

Of course, what early Americans called “prerogative” power, we call “administrative” power. But this difference in terms cannot obscure the reality that this sort of power–consisting of binding extralegal edicts–was what provoked the development of constitutional law and what was emphatically barred by it.

It therefore is odd to hear from contemporary defenders of administrative power that it is a new sort of power, which could not have been anticipated by the U.S. Constitution. Although the late nineteenth- and early twentieth-century proponents of administrative power did much damage to constitutional governance, many of them at least understood what they sought. They recognized that they were reviving prerogative power–the sort of power that provoked the development of constitutional law–and rather than shy away from this reality, they often candidly admitted it.