Academic journal article Texas Law Review

The Return of the King: The Unsavory Origins of Administrative Law

Academic journal article Texas Law Review

The Return of the King: The Unsavory Origins of Administrative Law

Article excerpt

The Return of the King: The Unsavory Origins of Administrative Law IS ADMINISTRATIVE LAW UNLAWFUL? By Philip Hamburger. Chicago, Illinois: The University of Chicago Press, 2014. 648 pages. $55.00.

Philip Hamburger's Is Administrative Law Unlawful? is a truly brilliant and important book. In a prodigious feat of scholarship, Professor Hamburger uncovers the British and civil law antecedents of modern American administrative law, showing that contemporary administrative law "is really just the most recent manifestation of a recurring problem." That problem is the problem of power: its temptations, its dangers, and its tendency to corrupt. Administrative law, far from being a distinctive product of modernity, is thus the "contemporary expression of the old tendency toward absolute power-toward consolidated power outside and above the law." It represents precisely the forms of governmental action that constitutionalism-both in general and as specifically manifested in the United States Constitution-was designed to prevent. Accordingly, virtually every aspect of modern administrative law directly challenges the Constitution.

This extraordinary book will be immensely valuable to anyone interested in public law. My comments here concern two relatively minor points that call for more clarification. First, Professor Hamburger does not clearly identify what it means for administrative law to be "unlawful." Does that mean "in violation of the written Constitution"? "In violation of unwritten constitutional norms"? "In violation of natural law"? There is evidence that Professor Hamburger means something more than the former, but it is not clear what more is intended. In order to gauge the real status of administrative law, we must have a more direct conception of law than Professor Hamburger provides.

Second, much of Professor Hamburger's historical and constitutional analysis focuses on the subdelegation of legislative authority. While his discussion contains numerous profound insights, including some that require correction in my own prior scholarship on the subject, it does not discuss how to distinguish interpretation by judicial and executive actors from lawmaking by those actors. Presumably, the prohibition on subdelegation of legislative authority prohibits only the latter. Figuring out where interpretation ends and lawmaking begins is one of the most difficult questions in all of jurisprudence, and I am not convinced that Professor Hamburger can successfully perform an end run around it.

But these are modest nitpicks about a path-breaking work that should keep people of all different persuasions engaged and occupied for quite some time.

Introduction

When one has taught and researched a subject for more than a quarter of a century, one does not normally expect to encounter a 500-plus page book on that subject from which one learns something new on almost every page. Even less does one normally expect such a book from an author whose scholarly expertise lies outside the relevant field of study. But Philip Hamburger's brilliant book, Is Administrative Law Unlawful?, defies expectations, transcends boundaries, and extends the domain of human knowledge in too many directions to encapsulate in a brief Review. I am honored to have the opportunity to comment on this extraordinary work, and I am profoundly grateful to Professor Hamburger, as should be anyone interested in administrative law or the American Constitution, for the insights that he provides. This is a book that will (or at least ought to) change the way even long-time scholars-and I suppose that I am unhappily old enough to bear that title-will look at the history, practice, and doctrine of administrative law.

Professor Hamburger, a legal historian by trade, has turned his prodigious talents to uncovering the British and civil law antecedents of modern American administrative law. Contrary to the common misperception that there is something distinctive about modernity that gives rise to the administrative state, he shows that contemporary administrative law "is really just the most recent manifestation of a recurring problem. …

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