Review of Philip Hamburger, "Is Administrative Law Unlawful?"

|The Volokh Conspiracy |

I have posted my review Hamburger's book for the Law and History Review. Here's the abstract:

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.

As an aside, I have a brief response to a hostile review of Hamburger's book by Adrian Vermeule. Hamburger's provides an argument grounded in the American natural law tradition, as informed by the history of the British Crown's abuses, about the nature of executive power. One can't refute such an argument by citing modern arguments as to why when administrative agencies make law based on vague delegations and then adjudicate disputes, which would seem to be exercises of legislative and judicial power, they are really exercising executive authority. Simply reiterating those arguments with the implicit claim that it's kind of kooky these days not to be a legal positivist hardly discredits Hamburger. Moreover, I find the notion that twentieth century Supreme Court precedent somehow settle the issue of what counts as executive power strange. Perhaps those decisions are evidence that Hamburger's understanding of executive power isn't as deeply-rooted as he suggests, but surely a Supreme Court opinion from, say, 1911 (when a key case cited by Vermeule was decided), doesn't settle the issue of the proper scope of executive authority in the American constitutional and legal system, as either a historical or philosophical matter.