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The Dead Constitution

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The Dead Constitution

Philip Hamburger’s indictment of the regulatory state is profound and sobering. April 10, 2015
Photo by DonkeyHotey

Is Administrative Law Unlawful?, by Philip Hamburger (University of Chicago Press, 648 pp., $55)

We conservatives like to complain about overregulation and point to this or that destructive rule, but few of us go so far as Philip Hamburger does in his immensely important Is Administrative Law Unlawful?, published last year. A Columbia law professor, Hamburger indicts the entire structure of executive-agency rulemaking as illegitimate. It’s not just the regulations that have to go but the regulators as well, since their job is to fling down the Constitution and dance on it.

For over 400 pages of a 511-page, doorstopper-weight text, Hamburger counts the ways in which the slithery Medusa’s head of executive-branch agencies—from the Interstate Commerce Commission and the National Labor Relations Board to the Environmental Protection Agency and the Consumer Financial Protection Bureau, all spitting out the venom of administrative law—constitutes a flagrant affront to the Constitution. For starters, the Constitution lodges all legislative power in Congress, which therefore cannot delegate its lawmaking function. So it’s forbidden for Congress to pass a law creating an executive-branch agency that writes rules legally binding on citizens—for example, to set up an agency charged with making a clean environment and then to let it make rules with the force of law to accomplish that end as it sees fit. “The power of the legislative,” as the Founding Fathers’ tutelary political philosopher, John Locke, wrote, is “only to make laws and not to make legislators.” And if Congress can’t delegate the legislative power that the Constitution gives it, it certainly cannot delegate power that the Constitution doesn’t give it—namely, the power to hand out selective exemptions from its laws, which is what agencies do when they grant waivers.

Second, Constitution architect James Madison, following political theorist Baron de Montesquieu, saw the separation of powers as an essential bulwark of American liberty. But administrative agencies, which make rules, carry them out, and adjudge and punish infractions of them, blend together legislative, executive, and judicial powers in one giant anti-constitutional Cuisinart. Moreover, judicial power is as undelegatable as legislative power, since the Constitution lodges all of it in the judicial branch. So third, while administrative judges may look “just like real judges,” says Hamburger, they are no such thing—and not only because the Constitution makes it impossible for them to be so but also because, unlike real judges, their sole duty, rather than using their independent and expert judgment to carry out the law of the land, is to carry out the policy of their agency, as set and overseen by their department chief or the relevant cabinet secretary who in turn oversees him. As Justice William Howard Taft pronounced, an administrative tribunal is “miscalled a court.”

Equally offensive, an individual or corporation called up before one of these gimcrack agencies does not receive due process of law but only “such process as is due,” which is no substitute for the right of being indicted (or not) by a grand jury, tried by a petit jury of one’s peers, and judged by a bona fide judge. Instead of due process, the method of an administrative agency is “inquisitorial.” Acting sometimes on the tip of a secret informer, it doesn’t even need to seek a subpoena, based on probable cause, to search private papers. It can just demand them. It can order parties to appear before it on its own flimsy authority. From corporations—big banks, for instance—it can extort millions of dollars in settlements, or force companies to allow inspectors to enter without warrants, just by hinting that even more intrusive and punitive measures might be in store otherwise. But despite this flagrant disregard of due process, it can impose fines and cease-and-desist orders—in other words, real criminal penalties. It can even kill a whole industry, as President Barack Obama’s EPA is currently trying to do to coal mining, over the vehement objections of Obama’s liberal Harvard constitutional-law professor, Laurence Tribe. Indeed, through their informal adjudications, these agencies routinely evade not just the Constitution but also the 1946 Administrative Procedures Act that gives them their fig leaf of legitimacy.

The world-historical accomplishment of the American Revolution, and of the Constitution that came out of it, Hamburger notes, was that they turned upside-down the traditional governmental model of “elite power and popular subservience.” Americans “made themselves masters and made their lawmakers their servants” through a Constitution that they themselves had made. They observed laws that had legitimacy because they themselves had consented to them, through representatives whom they themselves had chosen. And “they made clear that not only their executives but even their legislatures were without absolute power.” Citizens claimed for themselves the liberty to do anything that the laws didn’t expressly forbid, and that freedom richly nourished talent, invention, experimentation, specialization—all the human qualities that are the fuel of progress and modernity.

But the advent of administrative power brought back a noxious whiff of the old regime, since it “threatens the confidence of individuals and their organizations in their legally protected freedom,” says Hamburger. “Why invest, if a mere administrator, without much political or legal constraint, can later prohibit your investment? Why even enter a business, if an administrator, without even adopting a regulation, can use an interpretation or waiver to give advantages to your competitors”—especially big ones, who conspire in the rule-making process and have armies of lawyers and lobbyists to romance the regulators and sometimes even write the regulations? The result is a diminution of “investment, wealth, innovation, experimentation, and personal happiness.”

In fact, Hamburger thinks, the administrative state is a kind of “soft despotism,” a velvet-gloved revival of the arbitrary Star Chamber Stuart absolutism that the English quashed in their 1688 revolution and that Americans overthrew in 1776. After all, what was the infamously tyrannical Star Chamber, asked jurist Frederick Maitland, but “a court of politicians enforcing a policy, not a court of judges administering the law?” Now, says Hamburger, “prerogative power has crawled back out of its constitutional grave in administrative form,” and it “inevitably deprives Americans of their liberty.” True, all this is a far cry from the rack and the gridiron, Hamburger acknowledges. It more closely resembles a modern dictatorship, whose essence, as Christopher Hitchens once put it, is its “unpredictability and caprice; those who live under it must never be able to relax, must never be quite sure they have followed the rules correctly or not. Thus, the ruled can always be found in the wrong.”

Consequently, Hamburger sums up, there “is a jarring disconnect between what is taught and celebrated in constitutional law and what is accepted in administrative law.” For today, “only the shell of [the American] republican experiment remains. Within it, however, another government has arisen, in which new masters once again assert themselves, issuing commands as if they were members of a ruling class, and as if the people were merely their servants. Self-government has given way to a system of submission.” Nearly 150 years ago, Economist founder Walter Bagehot distinguished the dignified part of British government—the monarchy, which, for all its regal appearance and history, has no real power—from the efficient part, the prime minister and his cabinet, who actually govern, though quietly, without needing any flashy royal trappings (beyond, nowadays, a Jaguar with a driver). The reader comes away from Hamburger’s book thinking that America has a dignified Constitution—the 1787 one (along with the Bill of Rights) to which we pay such reverent lip service but which is becoming a dead letter—and an efficient constitution, the tangle of executive-branch rules in which the administrative state, the nation’s real ruler, has imprisoned American liberty as inextricably as Gulliver over the last century and more.

Of course, the system of submission unfortunately never disappeared from the earth, Hamburger shows. He traces it from Roman law, summed up in the sixth-century Emperor Justinian’s dictum that “what pleases the prince has the force of law,” to the civil law of the European enlightened despots of the eighteenth century, especially the Prussian Frederick the Great, who ruled through a meritocratic class of efficient, educated, benevolent bureaucrats—the beautifully humanistic face of absolutism, even as it remained absolutism. German philosophy’s concept of the Rechtsstaat—under which “the contract theory of the origin of the state” is replaced with the idea that the function of the state is not to protect individual rights but rather to take “general care for the interests of the community,” as the University of Chicago’s hugely influential political science chairman Charles Merriam wrote in 1903— made its way to such American academics as Princeton professor Woodrow Wilson, who learned German to read such thinkers, and to almost the whole Columbia political science faculty. It reached as well to the Institute for Government Research (renamed the Brookings Institution), whose first chairman, Johns Hopkins president Frank Goodnow, argued that the individual’s rights are “conferred upon him” by his society, so that “[s]ocial expedience, rather than natural right, is thus to determine the sphere of individual freedom of action.” That was in 1916; so don’t think universities became threats to freedom only in our day.

What, then, should we do? Though Locke, as Hamburger observes, would have said the remedy is revolution, he himself takes a milder approach. It’s up to the judges, he thinks, to clean up a mess which, through dereliction of duty, they permitted to accumulate by treating administrative edicts with almost slavish deference. He presents a handful of cases that encapsulate a century of abjectly pusillanimous precedent. In Chevron U.S.A. Inc. v. Natural Resources Defense Council, for example, the Supreme Court ruled that whenever the relevant statute is “silent or ambiguous” about an administrative agency’s authority over a given matter, the Court must defer to the agency’s interpretation as a “permissible construction, . . . a reasonable choice within a gap left by Congress.” After all, the justices “are not experts in the field”—a typical judicial cop-out, Hamburger sneers, since the issue calls not for technical but for legal expertise. Even if agencies in effect make law through informal interpretations of statutes by dodges that evade the Administrative Procedures Act’s process that is due, judges must cringingly defer, the Supreme Court has held in other cases; and, of course, who are the justices to second-guess agencies’ interpretations of their own regulations—even though they would never dream of deferring to Congress’s interpretation of one of its earlier laws or to a president’s signing statement?

In fairness, Hamburger acknowledges that presidents and legislators have bullied and threatened the justices ever since Congress snarled that it might strip the Supreme Court of some of its jurisdiction, after it presumed to question the 1906 expansion of the power of the first administrative agency, the Interstate Commerce Commission. Theodore Roosevelt, in his 1912 presidential campaign, full-throatedly endorsed Progressive proposals to recall judges and overturn their decisions, just as his cousin Franklin would threaten to strip the Court of many of its powers if it continued to block the metastasis of his New Deal administrative agencies and their promiscuous lawmaking.

“But why bother saving the court,” Hamburger reasonably asks, “at the cost of giving up on the law?” Far better for judges to follow the example of the great Renaissance jurist, Chief Justice Edward Coke. Even when he “had to get down on his knees before his king, he refused to defer,” Hamburger recounts admiringly. “He kept on speaking his mind, exercising his independent judgment,” though it cost him his job and might well, he knew, have cost him his head.

Courage for our Supreme Court calls for nothing so dramatic. It doesn’t even require ruling unconstitutional the very idea of Congress’s unconstitutional delegation of legislative power, Hamburger thinks. The justices can proceed narrowly, incrementally, “to bring judicial opinions back into line with the law.” Without addressing the constitutionality of the underlying statutes, the Court can begin by voiding specific administrative edicts. And meanwhile lower courts can be more daring. Even while adhering to Supreme Court precedents about administrative power, they “remain free—indeed, they are bound by duty—to expound the unlawfulness of such power.” And at some point, Hamburger expects, the Supreme Court will have to man up and frankly state that what the Constitution says is the supreme law of the land.

A final word about the presentation of this urgently important thesis. Hamburger’s mode of argument might be congenial to his legal colleagues and students, but an editor could cut his 511 pages to 250 by excising the maddening repetitions—“a two-edged sword, which could cut in different directions,” is just one example out of thousands—and asking him at the same time to supply the concrete detail of actual cases that he omits from his text, which makes the argument seem to float abstractly in the air, unmoored by facts, except for a handful of oft-repeated seventeenth- and eighteenth-century English and American anecdotes. That’s a shame, because beneath the lawyerly surface is an argument of deep passion, learning, intelligence, and consequence that deserves to reach the widest possible audience.

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