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.

Reader Discussion

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on August 07, 2014 at 09:56:21 am

Very insightful; and a concise introduction to your book, which I look forward to reading. It could not be more timely.

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Owen Hughes
on August 07, 2014 at 11:51:02 am

Of course, what early Americans called "prerogative" power, we call “administrative” power.

This assumes the very proposition Hamburger purports to prove. As far as I’m aware, today’s governmental executive branch exercises powers given in the constitution or delegated to it by the legislature -- and the legislature has the power to remove the delegation if and when it chooses. Is this also the characteristic of the “absolute prerogatives” exercised by kings? If so, then they don’t seem absolute. If not, then administrative law and absolute prerogatives would seem to differ in a rather fundamental way.

Let’s consider an example of contemporary administrative law: carbon regulation.

Congress passed (and a Republican president signed) the Clean Air Act which, among other things, directs the Administrator of the federal Environmental Protection Agency (EPA) to establish standards “applicable to the emission of any air pollutant from … new motor vehicles or new motor vehicle engines, which in [her] judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” 42 U.S.C. § 4521(a)(1). Contrary to this statute, the EPA declined to regulate automotive carbon emissions. Members of the public sue to compel compliance. The Executive Branch argued that it had the prerogative to refrain from adopting any such regulations. In Massachusetts v. Environmental Protection Agency, 549 U.S. 497 (2007), the Supreme Court overruled the Executive Branch, finding that the Clean Air Act applied to carbon emissions. While the Court did not compel the EPA to regulate carbon emissions, it found that the Executive Branch’s stated rationale for refraining from regulating was inadequate. Upon review, the Executive Branch abandoned its objections and identified six greenhouse gasses that warranted regulation. This finding was later upheld on appeal.

Is this really analogous to how kings exercised “absolute prerogatives”?

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on August 07, 2014 at 12:47:32 pm

While the example you cite makes the parallel between administrative and perogative powers look murky. I invite you to examine the Supreme Court decision in Sackett vs EPA. Where the EPA's position was that citizens could not even appeal to the court to challenge the EPA's determination unless the EPA took them to court - and in the mean time were accruing daily fines. That case is a better example of the simularity between the administrative and perogative power.

Hamburger makes the argument, as I understand it, that administrative law is unconstitutional in the case you cited, as the.Clean Air Act sub-delegated legislative power from Congress to the EPA; under the thesis that the Constiution delegates the legislative power from the People to Congress without explictily allowing Congress to sub-delegate the legislative power.

It's an interesting theory and I suspect that it will become a major strand in legal scholarship, although I do not expect it to have a significant impact in the courts as it would overturn around a century of precedents.

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Rod Thompson
on August 07, 2014 at 12:54:09 pm

As one reads into Professor Hamburger's book and the thrust(s) of his other explications, that by whatever labels (vel non) we are usefully examining the phenomenon of **centralization** of power(s).

In that reading one may be struck with a consideration of "Prerogative" as incident to "Sovereignty" (Bertrand de Jouvenel 1956; available under that title at Liberty Fund Books).

In doing so, a further examination of Power and the efforts (and trends) for its centralization (as Sovereignty, inter alia) is a reminder of de Jouvenel's earlier "On Power" (1945) also available via Liberty Fund Books.

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R Richard Schweitzer
on August 07, 2014 at 15:10:00 pm

I invite you to examine the Supreme Court decision in Sackett vs EPA. Where the EPA’s position was that citizens could not even appeal to the court to challenge the EPA’s determination unless the EPA took them to court – and in the mean time were accruing daily fines. That case is a better example of the similarity between the administrative and prerogative power.

That’s a fine case. The EPA issued an “administrative compliance order” asserting jurisdiction over Sackett’s property and demanding that Sackett submit to certain orders on pain of a potential fine, accruing daily. The EPA acknowledged that its orders would ultimately be subject to judicial review and reversal, but the EPA argued that these remedies were not triggered until it sought to actually collect the fines. Sackett demanded the right to contest the EPA’s jurisdiction immediately – and the Supreme Court agreed unanimously, finding that Sackett’s due process rights were vindicated by the federal Administrative Procedure Act (APA). (More technically, the Court held that an administrative compliance order fell into the category of “final agency action” under the APA, triggering the opportunity for judicial review).

Is this really analogous to how kings exercised “absolute prerogatives” – having to live within the constraints established by the legislature, and knowing that when you exceed those bounds, private parties can get the courts to smack you down? Again, this doesn't strike me as very "absolute."

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on August 07, 2014 at 15:32:22 pm


" Members of the public sue to compel compliance."

Another seemingly reasonable argument and doubtless one that is probably consistent with many legal commentaries.

Yet is would appear that what is hidden in the comment is more revelatory than what is openly asserted.

The selected comment conceals more than it reveals and in some respects, once expanded, may get to the core issue.

Clearly, you are aware that this "public' of which you speak does not include the likes of me, my neighbors, or any energy consuming citizen. Rather, this "public" was dominated by the likes of the Natural Resources Defense Council (is it council or league?). Indeed, it is this very group that drafted the post Sackett regulations.

So what does this mean?
Let us grant that you may be correct that there is a charter for delegation. Even if this is true, are you not then concerned with the "further" delegation by these administrative agencies to groups such as the one mentioned? Several of your prior posts have made reference to agency capture, etc. No disagreement there - it exists, surely.

Yet, it seems to me that THIS is the heart of the issue. When we empower an Executive Agency to make such determinations as these, are we not at the same time relegating "political" decision making to non- elected bodies / factions. This is not an instance of an agency deciding on the proper color of a traffic sign but rather one that has the potential for enormous economic harm (or even benefit depending upon ones perspective) and will have repercussions throughout the society. The expectation (perhaps outdated) is that only accountable elected representatives ought to make, and are competent to make, such political decisions.
Bad enough that the Legislature, asleep at the wheel, has relinquished its delegated power to some government appendage but then this appendage further delegates rulemaking to an outside faction. Whether this process involves NGO's, Big Business, etc. is irrelevant. The peoples "delegation" (to Congress) is, depending upon ones perspective, either sub-delegated or sub-sub-delegated to a third party. The result is a concentration of power in the Executive with all the potential for the exercise of either Executive or Administrative prerogative - and I and my energy consuming neighbors are unable to point the finger at those responsible for raising my energy costs.
Do you think that those Old Virginians had this in mind in 1789?

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on August 07, 2014 at 16:25:38 pm

Clearly, you are aware that this “public’ of which you speak does not include the likes of me, my neighbors, or any energy consuming citizen. Rather, this “public” was dominated by the likes of the Natural Resources Defense Council (is it council or league?). Indeed, it is this very group that drafted the post Sackett regulations.

1. If you are suggesting that there’s some distinction between the speech engaged in by organization such as the National Resources Defense Council (NRDC) and mere citizens such as you and me, I might be inclined to agree. But the Supreme Court has ruled differently: For better and worse, corporations are people; money is speech. Deal with it.

2. Can you seriously be concerned about being bound by a regulation that might have been drafted by the NRDC but then subject to the rulemaking process of the ADA? In contrast, please pick up any section of the US Tax Code – lovingly adopted into statute by Congress, not by agencies – and identify the Congressman that put pen to paper drafting that piece of legislation. I suspect you will rapidly conclude that statutes are not drafted by legislators, either.

And unlike regulations, statutes are not subject to ANY requirement at justification or cost/benefit analysis. Whatever you can get a majority of people to vote for (or abstain from voting against) becomes statute.
Some of us are old enough to remember that the first of W’s scandals involved the fact that the White House refused to disclose with industry groups were meeting with White House officials as they drafted their energy bill. Do you derive comfort from the fact that they were working on statutes, not regulations?

Face it – today legal drafting is a kind of expertise. We can like that; we can hate that; but it doesn’t see likely we can change that. Nor obvious that we should.

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on August 07, 2014 at 17:51:54 pm

No, I gain no comfort from either; nor do I gain comfort from the assertion that legal drafting is a form of "expertise." it is precisely this expertise that I find wanting both as a practical matter (in that this expertise has historically been wrong) and as a substitute for good old fashioned "open" political haggling.

It is not altogether clear to many of us that we can not change it; eliminating it would be well nigh impossible - but the possibility for change remains. This would be something more than submitting regs / stats for Judicial Review. It ain't their role either - it is for the Legislature to make these determinations. Perhaps, a system where rulemaking, etc. is non - operative until after a) public comment (won't get much, perhaps) and a Congressional vote. Anything but a further ceding of authority to the Executive.

Lastly, why would you assume that I appreciated W's corporate Big Ear? The same applied to him.
Was it something I said - I think not!

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on August 07, 2014 at 19:06:15 pm


In my last response to your comments, I did not read clearly your remarks concerning Tax codes and Statutes.

I will ascribe it to the giddiness I am experiencing from finally breaking 80 this morning for the first time since an auto accident 2 years ago. So my apologies in not recognizing the import of your statute argument and the "transparency" of Legislators.

Yet, my position still obtains, I think.
1) The difference with Tax Code legislation is that at least one has on record the votes of individual legislators who voted for the "legal expert" assisted text. I am fine with this. Of course, there still remains the issue of influence of unacknowledged industry experts (industry, NGO hagglers) that have had their say. (Goodness, I wish they would come to my little utopia, I could offer some advice).

Whereas, when the IRS does its little determinations, no one knows, nor can know a) who drafted it, who approved it (nominally the Executive, yes, but....) and there ain't a whole lot one can do about it. (Unless you are swayed by the Internet ads "demonstrating that the 16th Amendment ain't kosher).

2) Part of the issue is that government has simply put its "expert little fingers" into far too many areas. My previous comments about fees for decks, etc. are typical and are intended to show that the effect on our daily lives / liberties is quite considerable. Yet, no one can or will acknowledge "Who dun it?"

When dealing with Federal legislation, there is indeed a need for some expertise (not just that of lawyers). consider this however, were the government not involved so extensively in the regulation of everything from my deck to regulating what some old pastry chef can make and to whom he must sell his wares, da ya think that we would need so many experts (legally trained or otherwise).
I am all for the prudent employment of "experienced" industry, scientific personnel in the drafting of legislation - not in rulemaking by admin agencies. At least with the legislature, I can (and d0) check to see who "dun it"?
Pretty difficult with rulemaking wouldn't you say.

So again, my apologies for not reading your comment closely enough. But what the heck, you should have seen this beautiful high arcing draw around the corner of the lake..........

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on August 08, 2014 at 00:33:17 am

(Hey, has anyone else noticed that Gabe is having extended conversations with ... well, with nobody? I'm starting to worry about that guy....)

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on January 14, 2015 at 04:33:26 am

Dear Sirs and Madames,

Professor Hamburger has hit it square on the nose.

I purchased the book and am still reading it back and forth and over and over again.

Please read the book before conjecture, or declaring any yeahs or nays.

I have lived through and somehow survived, albeit not without great and continuing injury, these Article I [Legislative] Courts that are run by the Article II Executive [the Police and/ or Military] and that are rubber stamped without oversight or any necessary degree of review by the Article III Judiciary.

These courts cannot be fixed.

They are un - Constitutional in every regard.

Ridiculous charges that a Federal Court would not entertain, no discovery, no witnesses, no affirmative defenses, no testimony, compelled testimony that if you do not give it - the fact that you do not can be used against you, hearsay within hearsay is allowed, Federal Rules of Civil or Criminal Procedure do not apply, Federal Rules of Evidence do not apply, right to counsel does not apply, rights against self-incrimination do not apply, they can go on for over a decade, they can get papers, documents, records without a warrant or probable cause, and without charges, charges do not have to be read into the record, you do not have a right to answer to charges. They are worse than GITMO in America.

These courts and proceedings place all three independent powers of the Legislature, and Executive and the Judiciary under one single Branch of Government in direct violation of the Separation of Powers Doctrine which was one of our founding principles.

This is a principle that our Founder's studied from people like Locke, Coke and others.

Professor Hamburg does an excellent job of laying out the nature of these prerogative powers that are intended to undermine the concept of limited governance in a Republic, and do so from within. These same machinations have destroyed every other Republic and far too many Constitutional Monarchies from within.

They are an end run around the Constitution.

Get the book and support his and other people and authors efforts in this regard as it is what is undoing us all.

The Administrative State is now so far afield of our Constitutional Principles.

One thing that Hamburger points out is that these Prerogative Courts like the Star Chamber were first used to go after "Industry Magnates" in Europe under the Crown, here the very same thing was done in justifying these courts by using them to go after Corporate Titans [persons]and Robber Barons. Then they were turned on and against the people.

These Administrative Courts violate the Bill of Rights and Constittuion.

I even had one Administrative Law Judge [Article II ALJ] argue against the 5th Amendment and it took him close to 50 pages to do so.

These Courts are minimally, Police Tribunals, if not in many cases now, Military Tribunals where certain and various Branches of the Military [in Uniform] are now running these courts.


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Eric Shine

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