Is Administrative Law Unlawful?


The book that took me the longest to get around to reading relative to its insight was Thinking Like a Terrorist: Insights of a Former FBI Undercover Agent. Author Mike German patiently suggested for years that I should make it part of my work on unpacking the strategic logic of terrorism. Had I read it sooner, I’d have understood terrorism faster and been even less scared (if possible) of that particular threat.

Second place may go to Is Administrative Law Unlawful? by Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia Law School. The book also took me far too long to get to. Hamburger detailed in his 2014 tome how “administrative law”—if you can call it that—returns modern government to the historical exercise of prerogative. This time, it’s not royal prerogative, but the prerogative of an elite class of government officials.

It may not reach those who love the status quo administrative state, but Hamburger’s book will either remind or reinforce for the favorably inclined reader that much of modern bureaucracy violates the careful separation of powers that the Framers wrote into the Constitution. There was a time—or at least we can appeal to the principles of the time—when the legislative branch made the rules, the executive branch carried them out, and the judicial branch determined how the rules applied in the event of a dispute.

Today, administrative agencies have all three powers. The legislative branch and the judiciary are spectators who, as often as not, make a show of participating in the actual work of the U.S. federal government.

Now, the message may not reach all audiences because it’s a dense 500-page read about abstract legal concepts in history. It’s easier to get through all that material if you already like it, and the leavening doesn’t come until the end, where Hamburger seems to loosen up and allow himself to broach some of the implications of modern administrative law.

Just one of the startling revelations in his book is only hinted at early on and so subtly stated that it’s easy to miss: “The growth of administrative power in America has followed the expansion of suffrage,” Hamburger observes. “The almost paradoxical result has been to agonize over voting rights while blithely shifting legislative power to unelected administrators.”

Friends of administrative power often pride themselves on their love of democracy. While they fight to give people the fullest possible access to the vote, the power that voting is supposed to represent has been drained out and transferred to different organs of government. That’s worth pausing on.

Is Administrative Law Unlawful? seems unlikely to convert the dubious all by itself. No one book can, of course. We can emulate Hamburger’s style, though, and patiently remind friends who have forgotten their way that a well-functioning democracy would be closer to their ideals than the exercises of administrative prerogative that make up so much of American government today.