March 18, 2025
Dear Friends and Family,
Welcome to a new series. I elected to start this series with excerpts defining the law surrounding the administrative state. The excerpts reveal several interesting things:
Next: The next segment’s excerpts come for the book titled Unmasking the Administrative State. It will detail the Administrative State’s rise to power, how it had changed the character of Congress, and some political ramifications.
Happy Learning,
Harley
Dear Friends and Family,
Welcome to a new series. I elected to start this series with excerpts defining the law surrounding the administrative state. The excerpts reveal several interesting things:
- Administrative power can be defined as a pre-constitutional mode (e.g. a monarchy) the very sort of power that constitutions were most clearly expected to prevent.
- The Administrative State having its current power is a violation of our Constitution because Congress has delegated rulemaking to them which to Constitution clearly bans.
- This delegating by Congress is codified via the Chevron Doctrine which provides the Administrative State agency’s the right and responsibility to interpret statutes enacted by Congress. In doing so, the prevailing court is instructed via the Doctrine to follow a two-step process. First to determine if Congress provided a “clear” or “unambiguous” answer to the meaning of the statute. If not or if it is silent on the explanation, the court is to enforce the agency’s interpretation as long as it is “reasonable.” The court is not required to provide due process.
- Some agencies have administrative law judges who are part of the Executive branch versus the judicial branch of government. They are appointed by a panel made up of representatives from the American Bar Association, the Office of Personnel Management and one current Federal Administrative Law judge. Once appointed, they can only be removed from office for cause (e.g. not for performance). Such administrative law judges are utilized in the Social Security Office, and the Department of Labor, Interior, Agriculture, and Drug Enforcement.
Next: The next segment’s excerpts come for the book titled Unmasking the Administrative State. It will detail the Administrative State’s rise to power, how it had changed the character of Congress, and some political ramifications.
Happy Learning,
Harley
THE GOVERNMENT OF THE EXECUTIVE BRANCH: SEGMENT 1
ADMINISTRATIVE STATE -- EXCERPTS
Introduction: Although the United States remains a republic, administrative power creates within it a very different sort of government. The result is a state within the state – an administrative state within the Constitution’s United States. The state within is sometimes called the “regulatory state” to emphasize its burdens on economic and personal freedom and is sometimes called the “deep state” because of its tendency to interfere with our elected government.
It is said that administrative power is inefficient, dangerously centralized, burdensome on business, destructive of jobs, and stifling for innovation and growth. All of this is painfully true, but these are largely economic complaints, and economic complaints are not the entire critique of administrative power. Although this power began as an exceptional method of regulation, and was applied mostly to corporations, it has become the dominant reality of American governance which intrudes into the full range of American life, including not only economic endeavors but also political participation and personal decisions. The economic critique does not address the breadth of this danger. Indeed, it tends to protest merely the degree of administrative regulation, and it thereby usually accepts the legitimacy of administrative power – as long as it is not too heavy-handed on business. No wonder the economic criticism has not stopped the growth of administrative power.
The Centrality of the Legal Challenge: For a better understanding of the administrative threat, one must turn to law. The legal critique more fully addresses the problem than does the economic protest, for although much administrative power is economically inefficient, all of it is unconstitutional. In saying that administrative power is unconstitutional, this is not to deny that executive power is extensive. Executive power is often portrayed as merely the power to execute the laws, but more accurately it amounts to the power to execute all of the nation’s lawful force. It thus includes the power to prosecute offenders in court, to exercise discretion in distributing benefits, to determine the status of immigrants, and so forth. The US Constitution placed lawmaking power in Congress and judicial power in the courts. The power to bind – that is, to create legal obligation – was thus in these departments, not the executive.
Nonetheless, through administrative power, the executive purports to create legal obligation. Adding to the problem, administrative power also evades many of the Constitution’s procedures, including both its legislative and judicial processes.
Absolute Power: The Affordable Care Act, for example, authorizes Health and Human Services to issue binding rules on health care. Indeed, many federal agencies make binding rules with express authorization. This sort of administrative rule making is justified on the fiction that when Congress states an “intelligible,” agencies that follow the principle are merely specifying what Congress has enacted. But this is a fantasy. The crude reality is that the agencies are exercising legislative power.
Federal judges show varying degrees of deference to agency interpretations, and the agencies therefore can use their interpretations to create law. Most famously, under the 1984 Supreme Court case Chevron v. Natural Resources Defense Council, judges must defer to administrative interpretations of ambiguities in statues. Such interpretations must be among the “permissible” possible interpretations, but within this standard, agencies generally enjoy much freedom to choose their interpretations and thus to make law whenever they can find a plausible statutory ambiguity. As a result, even where Congress has not expressly authorized administrative rule making, agencies often can use interpretations to make binding rules – that is, to make the law.
This can be illustrated by the Clean Power Plan – an Environmental Protection Agency (EPA) rule designed to reduce greenhouse gas emissions by establishing emission standards for existing power plants. Most commentators protest its substance, but the point here is how the agency made the rule. According to the EPA, it can issue the rule because it is merely interpreting an ambiguous section of the Clean Air Act. Similarly, the EPA relies on interpretation to make its rule on the waters of the United States – a rule that potentially regulates almost all waters in the nation. Even if an agency does not interpret a statute with the formality required for Chevron deference, it can issue less formal statutory interpretation. Topping it off, agencies make laws not only by interpreting statutes but also by interpreting their own rules, often in the form of guidance. These methods of lawmaking through agency interpretation are disturbing. They are pathways for agencies to do what Congress itself did not do, or even expressly authorize.
Administrative Tribunals: Contemporary administrative tribunals evade the courts, their judges, their juries, and the due process of law. Administrative tribunals sometimes apply inquisitorial methods, but even where their proceedings are adversarial, they do not live up to the Constitution’s procedural guarantees. The Securities Exchange Commission (SEC). for example, can bring civil insider-trading cases in federal courts, or it can bring civil insider-trading cases in federal courts, or it can refer insider-trading cases to the Justice Department for it to prosecute criminally in such courts, and either way, defendants get judges and juries and the full range of the Constitution’s applicable procedural rights. But the SEC can also pursue insider-trading cases before administrative law judges, who work for the commission, are not really judges, do not offer juries, and do not even allow discovery.
Moreover, administrative adjudicators cannot question the lawfulness of the regulations they enforce. It often is said that administrative law judges are independent because they are protected in their tenure and salary. But actually, they can be demoted or have their salary docked if they reject administrative regulations as unlawful. It thus becomes apparent that administrative law judges are pre-committed to upholding the government’s position on the most persistent and serious legal questions. And this means that they usually are systematically biased in favor of one of the parties before them, in violation of the due process of law.
Source: The Administrative Threat by Philip Hamburger (2017).
CHEVRON DOCTRINE
America’s administrative state has long been afflicted by recurring crises of legitimacy. These crises typically follow an expansion of the federal government. Expansions typically mean creating new agencies or conferring new powers on existing agencies. And given that the Constitution says nothing about administrative agencies, other than a few passing references to the heads of departments, it is perhaps not surprising that those opposed to the expansion of federal authority respond by raising questions about the legitimacy of the administrative state. The latest crisis of legitimacy appears to have been triggered by efforts of the Obama Administration to tackle climate change and immigration reform by expanding existing administrative authority. Agitation about the legitimacy of these efforts led to dark warnings that America is governed by a “deep state,” and, at least among conservative legal commentators, too as its most prominent target “the Chevron Doctrine.”
What exactly is the Chevron doctrine? It refers to a standard that courts apply in determining whether an administrative agency has correctly interpreted the statute under which it operates. The doctrine says a court is always to proceed in two steps. First, if the court finds Congress provided a “clear” or “unambiguous” answers to the meaning of the statute, the court is to enforce that understanding. But if the statute does not provide a clear answer – if it is ambiguous or silent – then, as a second step, the court is to enforce the agency’s interpretation as long as it is “reasonable.” This is the gist of the Chevron doctrine, at least as commonly formulated.
So, what is the big deal? Terms like “clear” (versus “unclear”) and “reasonable” (versus “unreasonable) are vague, and conceivably the Chevron doctrine two-step does not impose any real barrier to courts accepting or rejecting the agency’s view of the law on any particular case.
Perhaps most fundamentally, the Chevron doctrine seems to validate a dramatic shift in power in our system of constitutional government. The two-step standard of review, taken at face value, seems to say that primary authority to interpret ambiguous agency statutes – and virtually every statute is unclear or silent on many points – has been transferred from courts to agencies. Chevron seems to take a big chunk of that authority and transfer it to agencies, now widely regarded as part of the executive branch. The Chevron doctrine downplays the role of Congress’s faithful agent, the courts, and elevates the roles of executive agencies, which are not so faithful because they are subject to oversight by the President, who often has different views about policy than did the enacting legislature. This has profound implications for how we think of the role of Congress under our system of government. The conventional view is that Congress is the prime mover in establishing policy, and the role of the agencies is to implement that policy under the supervision of the courts. The Chevron doctrine seems to validate a different view, that agencies are a co-equal source of policy change, and Congress can constrain the agencies only by adopting limits – in “clear” language – on what agencies can do. Considered in this light, the Chevron doctrine may countenance one of the largest transfers of political power in our history, from Congress to the executive. One might think this would require a constitutional amendment, not a decision of the Supreme Court.
The Court cannot indefinitely continue to dodge that fate of the Chevron doctrine. The confusion spawned by the Court’s silence must be frustrating to the lower courts, not to mention the lawyers who appear before them and the agencies whose interpretations are challenged in court. A decision by the Court to overrule the Chevron doctrine seems unlikely. It would be hard to explain why a doctrine applied by the Court in over a hundred decisions was suddenly discovered to be demonstrably wrong.
The saga of the Chevron doctrine can therefore be regarded as an extended case study in the trade-offs that inevitably arise under any system of administrative government subject to the check of judicial review.
Discerning the Boundaries of Agency Authority to Interpret: Determining the boundaries of an agency’s delegated authority is unquestionably the most difficult task assigned to courts in reviewing agency interpretations of law. Fortunately, that task is not imposed on courts as a routine matter. In most cases, it will be uncontested that the agency is operating with the sphere of its delegated authority.
In Sum: In making a final assessment of the Chevron doctrine it is important not to overstate its weakness. Any doctrine that came out of nowhere, gained such rapid ascendency, endured for thirty-five years, and was applied by the Court in more than one hundred cases, must have something going for it. At the same time, uneasiness about the doctrine, expressed over the years by a variety of legal commentators and Justices, strongly suggests that it is possible to do better.
Concluding Thoughts: As this is written, the fate of the Chevron doctrine is unknown. The Court may continue to ignore it until some kind of consensus emerges about what to do next. When and if that happens, the Court may overrule it or may reaffirm it. Most likely the Court will modify it in some fashion, either piecemeal or in one grand revision.
Whatever its fate, the Chevron doctrine has facilitated the transfer of power from Congress to the administrative state. When cases present technical questions under complicated statutory regimes, busy lower-court judges can invoke the Chevron doctrine and simply ratify whatever the agency proposes to do. In matters that judges find more compelling, it has facilitated the transfer of power to the courts by manipulating the nebulous standards of clarity and reasonableness. But the transfer of power that has taken place has been facilitated by the Chevron doctrine, and especially by the ambiguities of step 1 and step 2.
Source: The Chevron Doctrine by Thomas W. Merrill (2022).
Administrative State Threat
Absolute Power: Absolute power includes all efforts to bind (or impose legal obligation) not merely through law and the courts but through other pathways. In this sense, absolute power is an evasion of the regular paths of governance, and this is why it has been a repeated problem across the centuries. The evasion, moreover, is why administrative power has continually expanded. There has been a continual “rise and rise” of the administrative state, and this is no coincidence. Being not law but a mode of evasion, which flows around law and law-like things, administrative power has flowed around the Constitution’s pathways of power and even around formal administrative pathways, thus creating a cascade of evasions. Thus, administrative power can be defined as a pre-constitutional mode (e.g. a monarchy) – the very sort of power that constitutions were most clearly expected to prevent. The extralegal or absolute character of administrative power is very revealing. At the very least, it shows that absolute power is a recurring danger. In addition, it allows one to understand that constitutional law is developed in response to this threat. Americans thus were fully aware of the threat from absolute power and its extralegal paths, and they feared that this dangerous mode of governance might come back to life. It therefore should be no surprise that, in the US Constitution, they adopted structures and rights that systematically barred this danger.
The Constitution’s Structures: Moreover, binding adjudications deprive Americans of their right under Article III to be subject only to such federal judicial decisions as come from a court, with a real judge, a jury, and the full due process of law. Thus, even before one gets to violations of enumerated constitutional rights, it should be apparent that the administrative evasions of the Constitution’s pathways for binding power come with severe consequences for constitutional freedom.
Delegation: Administrative lawmaking is often justified as delegated power – as if Congress could divest itself of the power that the people had delegated to it. The Constitution, however, expressly bars any such sub-delegation. How does the Constitution bar congressional sub-delegation? The document begins: “All legislative powers herein granted shall be vested in Congress…” If all legislative powers are to be in Congress, they cannot be elsewhere. If the grant were merely permissive, not exclusive, there would be no reason for the word all. That word bars sub-delegation.
Net, the US Constitution systematically precludes administrative power. In particular, the Constitution carefully authorizes the government to bind Americans and the states only through acts of Congress and the courts. It thereby forbids the government from evading these avenues of power by going down other pathways. Accordingly, when agencies issue binding rules or adjudications, or when they issue waivers, they are violating the Constitution.
Is It Practicable to Abandon Administrative Power? Conclusion: Ultimately, the question as to whether the government can get along without administrative power should be answered by its proponents. The arguments about the need for administrative power are empirical, and those who assert the need to depart from the Constitution must bear the burden of proof. Nonetheless, the advocates of administrative power rarely, if ever, back up their claims with serious empirical evidence.
Meanwhile, the empirical evidence of the danger from administrative power is mounting. Not being directly accountable to the people – or even to judges who act without bias – administrative power crushes the life and livelihood our of entire classes of Americans, depriving them of work and even of lifesaving medicines. It therefore is difficult to avoid the conclusion that, overall, the administrative assault on basic freedoms is unnecessary and even dangerous.
What is To Be Done? First, although Congress has repeatedly authorized and acquiesced in administrative power, it still perhaps can redeem itself. Most basically, congress should reclaim its legislative power. And, of course, it need not do this all at once; instead, it can convert rules to statutes at a measured pace, agency by agency. By leaving so much lawmaking to the executive, our legislators have allowed not only power but also leadership and even fundraising to shift to the president. Ambitious legislators might therefore realize the advantages of reclaiming their constitutional role.
Ultimately, the defeat of administrative power will have to come from the people. Only their spirit of liberty can move Congress, inspire the president, and brace the judges to do their duty. Americans therefore need to recognize that administrative power revives absolute power and profoundly threatens civil liberties. Once Americans understand this, they can begin to push back, and the fate of administrative power will then be only a matter of time.
Source: The Administrative Threat by Philip Hamburger (2017).
The unabbreviated version of the above can be found in the pdf document below.
ADMINISTRATIVE STATE -- EXCERPTS
Introduction: Although the United States remains a republic, administrative power creates within it a very different sort of government. The result is a state within the state – an administrative state within the Constitution’s United States. The state within is sometimes called the “regulatory state” to emphasize its burdens on economic and personal freedom and is sometimes called the “deep state” because of its tendency to interfere with our elected government.
It is said that administrative power is inefficient, dangerously centralized, burdensome on business, destructive of jobs, and stifling for innovation and growth. All of this is painfully true, but these are largely economic complaints, and economic complaints are not the entire critique of administrative power. Although this power began as an exceptional method of regulation, and was applied mostly to corporations, it has become the dominant reality of American governance which intrudes into the full range of American life, including not only economic endeavors but also political participation and personal decisions. The economic critique does not address the breadth of this danger. Indeed, it tends to protest merely the degree of administrative regulation, and it thereby usually accepts the legitimacy of administrative power – as long as it is not too heavy-handed on business. No wonder the economic criticism has not stopped the growth of administrative power.
The Centrality of the Legal Challenge: For a better understanding of the administrative threat, one must turn to law. The legal critique more fully addresses the problem than does the economic protest, for although much administrative power is economically inefficient, all of it is unconstitutional. In saying that administrative power is unconstitutional, this is not to deny that executive power is extensive. Executive power is often portrayed as merely the power to execute the laws, but more accurately it amounts to the power to execute all of the nation’s lawful force. It thus includes the power to prosecute offenders in court, to exercise discretion in distributing benefits, to determine the status of immigrants, and so forth. The US Constitution placed lawmaking power in Congress and judicial power in the courts. The power to bind – that is, to create legal obligation – was thus in these departments, not the executive.
Nonetheless, through administrative power, the executive purports to create legal obligation. Adding to the problem, administrative power also evades many of the Constitution’s procedures, including both its legislative and judicial processes.
Absolute Power: The Affordable Care Act, for example, authorizes Health and Human Services to issue binding rules on health care. Indeed, many federal agencies make binding rules with express authorization. This sort of administrative rule making is justified on the fiction that when Congress states an “intelligible,” agencies that follow the principle are merely specifying what Congress has enacted. But this is a fantasy. The crude reality is that the agencies are exercising legislative power.
Federal judges show varying degrees of deference to agency interpretations, and the agencies therefore can use their interpretations to create law. Most famously, under the 1984 Supreme Court case Chevron v. Natural Resources Defense Council, judges must defer to administrative interpretations of ambiguities in statues. Such interpretations must be among the “permissible” possible interpretations, but within this standard, agencies generally enjoy much freedom to choose their interpretations and thus to make law whenever they can find a plausible statutory ambiguity. As a result, even where Congress has not expressly authorized administrative rule making, agencies often can use interpretations to make binding rules – that is, to make the law.
This can be illustrated by the Clean Power Plan – an Environmental Protection Agency (EPA) rule designed to reduce greenhouse gas emissions by establishing emission standards for existing power plants. Most commentators protest its substance, but the point here is how the agency made the rule. According to the EPA, it can issue the rule because it is merely interpreting an ambiguous section of the Clean Air Act. Similarly, the EPA relies on interpretation to make its rule on the waters of the United States – a rule that potentially regulates almost all waters in the nation. Even if an agency does not interpret a statute with the formality required for Chevron deference, it can issue less formal statutory interpretation. Topping it off, agencies make laws not only by interpreting statutes but also by interpreting their own rules, often in the form of guidance. These methods of lawmaking through agency interpretation are disturbing. They are pathways for agencies to do what Congress itself did not do, or even expressly authorize.
Administrative Tribunals: Contemporary administrative tribunals evade the courts, their judges, their juries, and the due process of law. Administrative tribunals sometimes apply inquisitorial methods, but even where their proceedings are adversarial, they do not live up to the Constitution’s procedural guarantees. The Securities Exchange Commission (SEC). for example, can bring civil insider-trading cases in federal courts, or it can bring civil insider-trading cases in federal courts, or it can refer insider-trading cases to the Justice Department for it to prosecute criminally in such courts, and either way, defendants get judges and juries and the full range of the Constitution’s applicable procedural rights. But the SEC can also pursue insider-trading cases before administrative law judges, who work for the commission, are not really judges, do not offer juries, and do not even allow discovery.
Moreover, administrative adjudicators cannot question the lawfulness of the regulations they enforce. It often is said that administrative law judges are independent because they are protected in their tenure and salary. But actually, they can be demoted or have their salary docked if they reject administrative regulations as unlawful. It thus becomes apparent that administrative law judges are pre-committed to upholding the government’s position on the most persistent and serious legal questions. And this means that they usually are systematically biased in favor of one of the parties before them, in violation of the due process of law.
Source: The Administrative Threat by Philip Hamburger (2017).
CHEVRON DOCTRINE
America’s administrative state has long been afflicted by recurring crises of legitimacy. These crises typically follow an expansion of the federal government. Expansions typically mean creating new agencies or conferring new powers on existing agencies. And given that the Constitution says nothing about administrative agencies, other than a few passing references to the heads of departments, it is perhaps not surprising that those opposed to the expansion of federal authority respond by raising questions about the legitimacy of the administrative state. The latest crisis of legitimacy appears to have been triggered by efforts of the Obama Administration to tackle climate change and immigration reform by expanding existing administrative authority. Agitation about the legitimacy of these efforts led to dark warnings that America is governed by a “deep state,” and, at least among conservative legal commentators, too as its most prominent target “the Chevron Doctrine.”
What exactly is the Chevron doctrine? It refers to a standard that courts apply in determining whether an administrative agency has correctly interpreted the statute under which it operates. The doctrine says a court is always to proceed in two steps. First, if the court finds Congress provided a “clear” or “unambiguous” answers to the meaning of the statute, the court is to enforce that understanding. But if the statute does not provide a clear answer – if it is ambiguous or silent – then, as a second step, the court is to enforce the agency’s interpretation as long as it is “reasonable.” This is the gist of the Chevron doctrine, at least as commonly formulated.
So, what is the big deal? Terms like “clear” (versus “unclear”) and “reasonable” (versus “unreasonable) are vague, and conceivably the Chevron doctrine two-step does not impose any real barrier to courts accepting or rejecting the agency’s view of the law on any particular case.
Perhaps most fundamentally, the Chevron doctrine seems to validate a dramatic shift in power in our system of constitutional government. The two-step standard of review, taken at face value, seems to say that primary authority to interpret ambiguous agency statutes – and virtually every statute is unclear or silent on many points – has been transferred from courts to agencies. Chevron seems to take a big chunk of that authority and transfer it to agencies, now widely regarded as part of the executive branch. The Chevron doctrine downplays the role of Congress’s faithful agent, the courts, and elevates the roles of executive agencies, which are not so faithful because they are subject to oversight by the President, who often has different views about policy than did the enacting legislature. This has profound implications for how we think of the role of Congress under our system of government. The conventional view is that Congress is the prime mover in establishing policy, and the role of the agencies is to implement that policy under the supervision of the courts. The Chevron doctrine seems to validate a different view, that agencies are a co-equal source of policy change, and Congress can constrain the agencies only by adopting limits – in “clear” language – on what agencies can do. Considered in this light, the Chevron doctrine may countenance one of the largest transfers of political power in our history, from Congress to the executive. One might think this would require a constitutional amendment, not a decision of the Supreme Court.
The Court cannot indefinitely continue to dodge that fate of the Chevron doctrine. The confusion spawned by the Court’s silence must be frustrating to the lower courts, not to mention the lawyers who appear before them and the agencies whose interpretations are challenged in court. A decision by the Court to overrule the Chevron doctrine seems unlikely. It would be hard to explain why a doctrine applied by the Court in over a hundred decisions was suddenly discovered to be demonstrably wrong.
The saga of the Chevron doctrine can therefore be regarded as an extended case study in the trade-offs that inevitably arise under any system of administrative government subject to the check of judicial review.
Discerning the Boundaries of Agency Authority to Interpret: Determining the boundaries of an agency’s delegated authority is unquestionably the most difficult task assigned to courts in reviewing agency interpretations of law. Fortunately, that task is not imposed on courts as a routine matter. In most cases, it will be uncontested that the agency is operating with the sphere of its delegated authority.
In Sum: In making a final assessment of the Chevron doctrine it is important not to overstate its weakness. Any doctrine that came out of nowhere, gained such rapid ascendency, endured for thirty-five years, and was applied by the Court in more than one hundred cases, must have something going for it. At the same time, uneasiness about the doctrine, expressed over the years by a variety of legal commentators and Justices, strongly suggests that it is possible to do better.
Concluding Thoughts: As this is written, the fate of the Chevron doctrine is unknown. The Court may continue to ignore it until some kind of consensus emerges about what to do next. When and if that happens, the Court may overrule it or may reaffirm it. Most likely the Court will modify it in some fashion, either piecemeal or in one grand revision.
Whatever its fate, the Chevron doctrine has facilitated the transfer of power from Congress to the administrative state. When cases present technical questions under complicated statutory regimes, busy lower-court judges can invoke the Chevron doctrine and simply ratify whatever the agency proposes to do. In matters that judges find more compelling, it has facilitated the transfer of power to the courts by manipulating the nebulous standards of clarity and reasonableness. But the transfer of power that has taken place has been facilitated by the Chevron doctrine, and especially by the ambiguities of step 1 and step 2.
Source: The Chevron Doctrine by Thomas W. Merrill (2022).
Administrative State Threat
Absolute Power: Absolute power includes all efforts to bind (or impose legal obligation) not merely through law and the courts but through other pathways. In this sense, absolute power is an evasion of the regular paths of governance, and this is why it has been a repeated problem across the centuries. The evasion, moreover, is why administrative power has continually expanded. There has been a continual “rise and rise” of the administrative state, and this is no coincidence. Being not law but a mode of evasion, which flows around law and law-like things, administrative power has flowed around the Constitution’s pathways of power and even around formal administrative pathways, thus creating a cascade of evasions. Thus, administrative power can be defined as a pre-constitutional mode (e.g. a monarchy) – the very sort of power that constitutions were most clearly expected to prevent. The extralegal or absolute character of administrative power is very revealing. At the very least, it shows that absolute power is a recurring danger. In addition, it allows one to understand that constitutional law is developed in response to this threat. Americans thus were fully aware of the threat from absolute power and its extralegal paths, and they feared that this dangerous mode of governance might come back to life. It therefore should be no surprise that, in the US Constitution, they adopted structures and rights that systematically barred this danger.
The Constitution’s Structures: Moreover, binding adjudications deprive Americans of their right under Article III to be subject only to such federal judicial decisions as come from a court, with a real judge, a jury, and the full due process of law. Thus, even before one gets to violations of enumerated constitutional rights, it should be apparent that the administrative evasions of the Constitution’s pathways for binding power come with severe consequences for constitutional freedom.
Delegation: Administrative lawmaking is often justified as delegated power – as if Congress could divest itself of the power that the people had delegated to it. The Constitution, however, expressly bars any such sub-delegation. How does the Constitution bar congressional sub-delegation? The document begins: “All legislative powers herein granted shall be vested in Congress…” If all legislative powers are to be in Congress, they cannot be elsewhere. If the grant were merely permissive, not exclusive, there would be no reason for the word all. That word bars sub-delegation.
Net, the US Constitution systematically precludes administrative power. In particular, the Constitution carefully authorizes the government to bind Americans and the states only through acts of Congress and the courts. It thereby forbids the government from evading these avenues of power by going down other pathways. Accordingly, when agencies issue binding rules or adjudications, or when they issue waivers, they are violating the Constitution.
Is It Practicable to Abandon Administrative Power? Conclusion: Ultimately, the question as to whether the government can get along without administrative power should be answered by its proponents. The arguments about the need for administrative power are empirical, and those who assert the need to depart from the Constitution must bear the burden of proof. Nonetheless, the advocates of administrative power rarely, if ever, back up their claims with serious empirical evidence.
Meanwhile, the empirical evidence of the danger from administrative power is mounting. Not being directly accountable to the people – or even to judges who act without bias – administrative power crushes the life and livelihood our of entire classes of Americans, depriving them of work and even of lifesaving medicines. It therefore is difficult to avoid the conclusion that, overall, the administrative assault on basic freedoms is unnecessary and even dangerous.
What is To Be Done? First, although Congress has repeatedly authorized and acquiesced in administrative power, it still perhaps can redeem itself. Most basically, congress should reclaim its legislative power. And, of course, it need not do this all at once; instead, it can convert rules to statutes at a measured pace, agency by agency. By leaving so much lawmaking to the executive, our legislators have allowed not only power but also leadership and even fundraising to shift to the president. Ambitious legislators might therefore realize the advantages of reclaiming their constitutional role.
Ultimately, the defeat of administrative power will have to come from the people. Only their spirit of liberty can move Congress, inspire the president, and brace the judges to do their duty. Americans therefore need to recognize that administrative power revives absolute power and profoundly threatens civil liberties. Once Americans understand this, they can begin to push back, and the fate of administrative power will then be only a matter of time.
Source: The Administrative Threat by Philip Hamburger (2017).
The unabbreviated version of the above can be found in the pdf document below.
| exec._1l_administrative_state_--_segment_1.pdf |