Home / General / Does the Modern Administrative State Inherently Violate the Rule of Law? (SPOILER: No.)

Does the Modern Administrative State Inherently Violate the Rule of Law? (SPOILER: No.)

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Showing us where the conservertarian movement to restore the law of the Gilded Age is headed, Phillip Hamburger has a forthcoming book called Is Administrative Law Unlawful? “that answers this question in the affirmative.” Unfortunately for him, Adrian Vermeule has read it:

But before criticism, there must first come understanding. There is too much in this book about Charles I and Chief Justice Coke, about the High Commission and the dispensing power. There is not enough about the Administrative Procedure Act, about administrative law judges, about the statutes, cases and arguments that rank beginners in the subject are expected to learn and know. The book makes crippling mistake about the administrative law of the United States; it misunderstands what that body of law actually holds and how it actually works. As a result the legal critique, launched by five-hundred-odd pages of text, falls well wide of the target.

In the first section, I’ll try to reconstruct Hamburger’s critique, whose basic ambiguity arises from the fact that Hamburger is impenetrably obscure about what he means by “lawful” and “unlawful.” Those terms are only loosely related to the ordinary lawyers’ sense. In my view, the best reconstruction is that Hamburger thinks that there are deep unwritten principles of Anglo-American constitutional order, derived from the views of English common-law judges; departures from those principles are “unlawful.” In the second section, I’ll try to show that the book’s arguments are premised on simple, material and fatal misunderstandings of what is being criticized, and never do engage the common and central arguments offered in defense of the administrative state. In the conclusion, I’ll consider a suggestion that the book is only masquerading as legal theory, and should instead be understood as a different genre altogether — something like dystopian constitutional fiction. Although the suggestion is illuminating, and tempting, I don’t think it applies here.

It’s definitely all worth reading if you’re interested in that kind of thing.

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