Book Review: Philip Hamburger, Is Administrative Law Unlawful?
- Author(s): David Bernstein
- Date Posted: 2015
- Legal Studies #: LS 15-36
- Availability: Full text (most recent) on SSRN
This is a review of Philip Hamburger’s book, Is Administrative Law Unlawful? Most scholars believe that administrative law began with the rise of administrative agencies in the late nineteenth century. Hamburger, by contrast, suggests that administrative law—by which he means legally binding rules that are developed through unilateral actions by the executive branch—has existed since colonial times and beyond, and that claims of administrative autonomy are direct descendants of the claims of the English monarchy to executive omnipotence. The Framers of the Constitution were well aware of such claims, and utterly rejected them. Yet, Hamburger argues, modern administrative law embodies precisely the evils that the Constitution and its separation of powers sought to prevent.
I predict that most readers will find Hamburger’s historical analysis compelling. Somewhat fewer will share his “originalist-ish” claim that the Constitution, properly understood, is at odds with modern administrative law. Many fewer, given pre-existing ideological commitments, will agree that the administrative state is despotic and must be dismantled, with power flowing instead back to the judiciary and Congress. Nevertheless, anyone interested in the rise of the American administrative state will benefit from this original, erudite, and thought-provoking book.