[By Prof. Philip Hamburger:] Why the history of administrative power matters

July 15
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The foundation of my new book, Is Administrative Law Unlawful?, is a new account of the history of administrative law. Administrative power has been a part of American life for more than a century, but much of its history has remained untold. And this matters, because the history is sobering, and once it is understood, the danger and unlawfulness of administrative power become painfully apparent.

The conventional account of administrative power emphasizes its modernity and necessity. It is said to be a pragmatic response to the complexity of modern society, and it thus seems necessary in contemporary America.

Sociologically, the message is that administrative law is a modern type of power and that it is quixotic to resist it. Constitutionally, the message is that administrative law developed after the adoption of the Constitution and that it therefore could not have been anticipated by the Constitution. Thus, even if the Constitution did not authorize this novel power, it did not prohibit it.

This conventional account is reassuring, but at the cost of omitting much of the history of administrative power. In fact, this standard account glosses over the profound danger of this sort of power and how it stimulated the development of constitutional law.

My book, Is Administrative Law Unlawful?, therefore attempts to trace the deeper history of administrative power. To this end, it begins not in the 19th century, but in the Middle Ages, and not in America, but in Europe. It thereby reveals the danger and the constitutional response.

Already in the Middle Ages, when European kings felt frustrated by the formalities of law, they occasionally attempted to bind their subjects in other ways — not merely through the acts of their legislatures, but through their own prerogative edicts, and not merely through the acts of their courts, but through the adjudications of prerogative bodies. For example, English kings issued binding proclamations, and their prerogative tribunals, such as the Star Chamber, issued binding regulations in the form of decrees. All of this was what kings and their advisers called absolute power, and it was widely feared as a threat to liberty.

On the Continent, beginning at least in the 16th century, the personal prerogative power of kings to rule in this irregular manner was systematized in bureaucracies as the administrative power of the state. Prussia went the furthest in shifting from prerogative to administrative power and thereby became widely admired on the Continent for its bureaucratic systematization. The power once exercised personally by the king thus came to be exercised bureaucratically by the state, but otherwise there was little difference between prerogative and administrative power. Governments continued to exercise absolute authority, but whereas kings called it “prerogative,” states now called it “administrative.”

Of course, there was a regular part of the prerogative, most of which eventually became lawful executive power. The attempt, however, to bind subjects through prerogative edicts was irregular, and this was understood to be absolute power. This is what is meant here by the “prerogative,” and this is what on the Continent became administrative power.

The common-law countries, however, took a different path than Continental nations. The English in the 17th century increasingly resented the burdens of prerogative power, and they therefore attempted to bar it by developing ideas of constitutional law. Of particular importance, Parliament in 1641 abolished the Star Chamber and other prerogative tribunals, thereby putting an end to their prerogative powers, whether in lawmaking or adjudication.

The way in which the English rejected prerogative lawmaking can be illustrated by attitudes toward Henry VIII’s Act of Proclamations. This 1539 statute delegated to Henry a power to issue binding proclamations — what we would call regulations. To be precise, the statute authorized the king, with the advice of his council, to “set forth . . . proclamations, under such penalties and pains” as the king and his council consider “necessary and requisite.” The act added that such proclamations “shall be obeyed, observed, and kept as though they were made by act of Parliament.” This therefore might be considered a precedent for the delegation of lawmaking power.

Not surprisingly, however, the Act of Proclamations was promptly repealed in 1547 — the first year of the next reign — and it lived on as a memorable illustration of why there should not be legal authorization for prerogative or administrative power. Indeed, later generations came to view the Act of Proclamations as one of the most abject moments in English history. David Hume, although no Whig, scathingly asked whether any act “could be more opposite to the spirit of liberty than this law.” He added that when Parliament  “gave to the king’s proclamation the same force as to a statute enacted by Parliament,” it “made by one act a total subversion of the English constitution.”

Such attitudes toward prerogative power, whether delegated or not, were widely shared among early Americans. They shared the English horror of prerogative power, and they therefore adopted constitutions that imposed even stricter obstacles to it. As put by John Adams in 1776, Americans aimed to establish governments in which a governor or president had “the whole executive power, after divesting it of those badges of domination called prerogatives,” by which Adams meant, of course, the absolute prerogatives. So far did Americans go in this direction that when James Madison worried about the threat from legislative tyranny, he complained in Federalist 48 that the “founders of our republics” seem “never for a moment to have turned their eyes from the danger to liberty from the overgrown and all-grasping prerogative of an hereditary magistrate.”

Exactly how the U.S. Constitution repudiated the absolute prerogative will be discussed in a later post. For now, the point is that although Anglo-American constitutional law centrally rejected prerogative power, administrative power now revives it. To be precise, administrative power revives the old absolute prerogative — the power of rulers to bind their subjects not merely through law, or the rulings of courts of law, but through other sorts of edicts.

Indeed, far from being merely a revival of this absolute power, administrative power is a direct continuation of it. As already noted, prerogative power was systematized on the Continent as administrative power. In the late 19th century, Americans went in droves to Europe, especially Germany, and above all to Prussia, to study this mode of power, and when they came home, they taught simplified versions of it in American universities. Even scholars who did not travel to Germany, such as Woodrow Wilson, could assimilate German administrative theory in German-language treatises. Although Wilson in 1887 candidly admitted the “absolute” character of the Prussian learning and conceded that “we should not like to have had Prussia’s history for the sake of having Prussia’s administrative skill,” he hoped Americans would be proficient in “naturalizing this much-to-be-desired science of administration.” Of course, what Wilson and many others learned in German, they passed along, in their lectures and treatises, to thousands upon thousands of students. Absolute power thus returned. It not only survived in administrative form on the Continent but also circled back from there to common-law countries.

This history overturns the complacent vision of administrative power as a modern and necessary response to the complexities of modern life. It shows that administrative power is not novel and that it cannot be assumed to be a modern adaptation to modern circumstances. On the contrary, this power is old and has an ugly history.

This history matters, first, because it reveals the danger. Whether called prerogative or administrative, the attempts to bind subjects not through the law, but through other mechanisms, have repeatedly ended in oppression. The long history also matters because it shows that administrative power was a version of absolute power and thus was what constitutional law developed in order to prevent. Rather than a novel development that constitutional law did not anticipate, administrative power is what constitutional law centrally attempted to prohibit.

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