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Vol 21 No 10 Oct/Nov 2016

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Is Administrative Law Unlawful?

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ISBN13: 9780226116594
Published: June 2014
Publisher: The University of Chicago Press
Country of Publication: USA
Format: Hardback
Price: £38.50
Paperback edition , ISBN13 9780226324630



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Is administrative law unlawful? This is a central question in contemporary law and politics, and it has become all the more important with the expansion of the modern administrative state. While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society.

With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts.

Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution-and constitutions in general-were designed to prevent. With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious - and profoundly unlawful - return to dangerous preconstitutional absolutism.

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Subjects:
Constitutional and Administrative Law, Other Jurisdictions , USA
Contents:
INTRODUCTION

1. The Debate
2. Conceptual Framework

I . EXTRALEGAL LEGISLATION

3. Proclamations
4. Interpretation, Regulation, and Taxation
5. Suspending and Dispensing Powers
6. Lawful Executive Acts Adjacent to Legislation
7. Return to Extralegal Legislation

II . EXTRALEGAL ADJUDICATION

8. Prerogative Courts
9. Without Judges and Juries
10. Inquisitorial Process
11. Prerogative Orders and Warrants
12. Lawful Executive Acts Adjacent to Adjudication
13. Return to Extralegal Adjudication
14. Rule through the Law and the Courts of Law

III . SUPRALEGAL POWER AND JUDICIAL DEFERENCE

15. Deference
16. Return to Deference

IV. CONSOLIDATED POWER

17. Unspecialized
18. Undivided
19. Unrepresentative
20. Subdelegated
21. Unfederal

V. ABSOLUTE POWER

22. Absolutism
23. Necessity
24. The German Connection
25. Obstacles

CONCLUSION

Notes
Index of Cases
General Index