Is Administrative Law Unlawful?

Author: Philip Hamburger
Publisher: The University of Chicago Press
ISBN: 9780226324630

Published In: November 2015
Format: Paperback
Jurisdiction: U.S. ? Disclaimer:
Countri(es) stated herein are used as reference only
Hardback Edition ISBN: 9780226116594

RMB 327.36

Download Order Form

Add to Wishlist
| Add to Compare

Description
Contents

Details

Is administrative law unlawful? This is a central question in contemporary law and politics, and it has become all the more important with the expansion of the modern administrative state. While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society.

With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts.

Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution-and constitutions in general-were designed to prevent. With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious - and profoundly unlawful - return to dangerous preconstitutional absolutism.

INTRODUCTION

1. The Debate

2. Conceptual Framework

I . EXTRALEGAL LEGISLATION

3. Proclamations

4. Interpretation, Regulation, and Taxation

5. Suspending and Dispensing Powers

6. Lawful Executive Acts Adjacent to Legislation

7. Return to Extralegal Legislation

II . EXTRALEGAL ADJUDICATION

8. Prerogative Courts

9. Without Judges and Juries