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The Unlawful Administrative State: A Conversation with Philip Hamburger

with Philip Hamburger

The standard narrative used to justify the existence of the administrative state and thus legitimate its powers is that America in the late 19th and early 20th centuries entered into a realm of industrialization, corporate power and concentration, density and urbanization, among other causes, that entailed the need for expert rule in executive agencies. Necessity of government action required courts and rule-making agencies that could adjust the social order to rapidly arising needs not anticipated in the ‘horse and buggy’ Constitution. However, what if there really is nothing new under the sun about administrative power? Instead, what if its call for the exercise of judicial and legislative powers, apart from the channels of the Constitution, also found comparative expression in medieval and early modern legal absolutism, particularly in the Stuart monarchs? That’s the stunning claim made by Philip Hamburger in his latest book, Is Administrative Law Unlawful?

Hamburger does not make formal arguments of constitutional law, instead he seeks to show that administrative law, which he hesitates to even properly call law, is a fundamental threat to our liberties in its very operation. The administrative state, he believes, must first and foremost be criticized for the deprivations it works on individual liberty in defiance of the core protections set forth in the Anglo-American legal tradition. This conversation explores how the administrative state operates above and apart from the law. We focus on the detailed legal historical arguments made in the book that compare the operations of our administrative state with the prerogative powers of the Stuarts as the best way to understand the constitutional settlement of the 17th century that law must be exercised through the law of the land and the courts. This settlement naturally found expression in our own Constitution. The reasons why our Founders set forth these limitations are at the heart of Hamburger’s book and this podcast.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on July 22, 2014 at 00:24:44 am

[…] Supreme Court, which seldom grants cases raising non-delegation doctrine, agrees to hear Dept. of Transportation v. Assn. of American Railroads [Roger Pilon/Cato, Gerard Magliocca] And Prof. Philip Hamburger, author of bracing new book Is Administrative Law Unlawful (earlier), has just guest-blogged about it for a week at Volokh Conspiracy, and has a related podcast at Law and Liberty; […]

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Image of July 22 roundup | Internet Tax Lawyers
July 22 roundup | Internet Tax Lawyers
on July 27, 2014 at 18:11:02 pm

[…] Richard Reinsch talks to Philip Hamburger about the latter’s new book, Is Administrative Law Unlawful? […]

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Image of Weekday Reading | The Ordeal of Consciousness
Weekday Reading | The Ordeal of Consciousness
on October 28, 2014 at 20:55:30 pm

Administrative Law, if it does not serve to complement the spirit of the Law, is unconstitutional. The HHS Contraception Mandate, for example, is a violation of both the First Amendment, in regards to Religious Liberty, and the Eighth Amendment, due to obscene fines, that violate the principle of proportionality, for those persons who provide a Health Care Plan that does not include contraception coverage.

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Image of Nancy D.
Nancy D.
on June 07, 2016 at 08:57:57 am

After listening, take the time to read Hamburger's book. It is ironic that the seeds of our American brand of statism
as practiced in the administrative state are those planted by Bismarck in Germany, and that we don't have a better understanding of where that led--though we should. Why do we continue to foster the alteration of our American political soil to make these seed flourish?

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Image of Derek Simmons
Derek Simmons
on February 28, 2017 at 18:39:26 pm

[…] unconstitutional administrative state has arisen. It is a fundamental threat to our liberty because it undermines […]

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Image of Looking at Trump as a Turnaround Executive - American Greatness
Looking at Trump as a Turnaround Executive - American Greatness
on July 08, 2017 at 12:44:18 pm

[…] is destroyed, replaced by the rule of a remote, unelected, nameless, faceless, and unaccountable administrative state that seeks to regulate an ever-increasing span of societal activities. One result of these […]

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Image of How Do We Rediscover Our American Heritage? Start With the Declaration - American Greatness
How Do We Rediscover Our American Heritage? Start With the Declaration - American Greatness
on September 27, 2018 at 07:20:16 am

[…] and administrative law—Separation of Church and State (2002), Law and Judicial Duty (2008), and Is Administrative Law Lawful? (2014), respectively—and many articles. His approach customarily combines legal history and a […]

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Image of Is Section 501(c)(3) a Form of Censorship?
Is Section 501(c)(3) a Form of Censorship?
on May 06, 2019 at 13:40:17 pm

[…] overt face of the Administrative State is a phalanx of agencies with Star Chamber-like powers (see Hamburger) poised to ensure that government of, by, and for the people perishes from the United States.  […]

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Image of The Administrative State's Threat to the American Constitution - Free World Economic Report
The Administrative State's Threat to the American Constitution - Free World Economic Report

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.