[By Prof. Philip Hamburger:] The Constitution’s repudiation of extralegal power

July 17
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The Constitution systematically repudiated absolute power, including extralegal power. Too often, administrative law is considered in terms of relatively flat constitutional doctrines, without much thought about its history, the dangers that provoked the development of constitutional law or broader conceptions of the role of law. Once one realizes that absolute power — to be precise, extralegal power — was the central danger that provoked the development of constitutional law, it becomes clear that such power is forbidden by the U.S. Constitution. Such is the main legal argument of my new book, Is Administrative Law Unlawful?

One way that the U.S. Constitution carefully rejected extralegal power was by vesting the legislative powers in Congress, the judicial power in the courts and the executive power in the president. It thereby placed the power to issue binding edicts, whether legislative or judicial, outside the executive branch and confined the executive branch to executive power.

The Continental advocates of administrative power traditionally despised the separation of powers. Eighteenth-century German scholars of administrative power criticized the separation of power, and many 19-century German scholars ridiculed it. Instead, they favored various functional divisions of power. Nineteenth-century Americans flocked to Germany to study under such scholars, and when they returned to the United States, they introduced the German arguments into American constitutional debate. Since then, in America, administrative power has repeatedly been justified on the ground that it satisfies a functional separation of powers.

The Constitution, however, allocates each type of power to its own part of government, and it thereby establishes not just any separation of powers, but a particular specialization of powers. Lawmaking, adjudication and force traditionally were understood as specialized powers, and the Constitution allocates each to its own specialized branch of government.

Of course, it may be thought that the Constitution did not preclude the delegation of lawmaking power. Certainly, delegation is one of the standard excuses for administrative power. But even where there is delegation — and in practice it often is missing — it is a poor excuse for administrative lawmaking.

An initial problem is that delegation is not as central a point as often assumed, because even if administrative lawmaking is delegated by Congress, it remains an attempt to bind Americans through rules that are not laws, and it thus remains extralegal power. In addition, there is the more direct constitutional problem that the Constitution bars the delegation of legislative power.

In the U.S. Constitution, the people delegate legislative powers to a Congress structured for legislative purposes, and the members of which are chosen by the people for their personal qualities. Thus, under traditional principles of delegation, the initial delegation by the people precludes any subdelegation by Congress.

The Constitution, however, does not leave this conclusion to a mere implication from principle; it also expressly bars the subdelegation of legislative powers. Cass Sunstein complains that there is no textual barrier to congressional delegation of legislative power. But one need only to read the first sentence — indeed, the first word — of the Constitution, after the preamble. The Constitution begins: “All legislative powers herein granted shall be vested in a congress of the United States . . .” The initial word is revealing. If the goal were merely a permissive delegation of legislative powers to Congress, so that Congress could subdelegate the legislative powers, the Constitution could have simply stated that the legislative powers herein granted shall be vested in Congress. Instead, the Constitution stated all legislative powers. If all legislative powers are in Congress, they cannot be elsewhere.

Another way that the Constitution barred administrative power was by guaranteeing the due process of law. In defense of administrative adjudication, it often is said that it provides all the process that is due. This smarmy phrase suggests that when the executive chooses to act through its own tribunals, there is a lower procedural burden — as if the due process of law does not centrally apply outside the courts. The effect is to reward the executive for evading the courts and their due process of law. This, however, turns the due process of law upside down.

To enforce their extralegal proclamations, rules and interpretations, medieval and early modern English kings needed to work through extralegal adjudication, and this became a recurring problem. Kings would haul their subjects into a prerogative tribunal, such as the king’s council, to punish them in ways that could not be done in the law courts.

In response, Magna Carta began to hint at procedural limitations, and Parliament in 1354 and 1368 adopted due process statutes. These statutes precluded the extralegal adjudication by requiring the due process of law, meaning the due process of law in the courts of law. And in the 17th century, in response to the extralegal adjudications imposed by James I and Charles I in the Star Chamber and the High Commission, the English abolished these courts and elevated the due process of law to a constitutional principle.

It thus becomes apparent that the due process of law developed precisely to cut off extralegal adjudications. Rather than a limit centrally on the courts, the due process of law developed as a barrier to extralegal proceedings, although it also thereby secured the minimum standard for the courts.

The due process of law, in other words, clearly applies to binding extralegal proceedings. In the distribution of benefits, there traditionally was no constitutional requirement of due process, but binding or constraining adjudications traditionally had to meet the full requirements of the due process of law.

Nowadays, however, the courts have thrown this core application of due process to the winds. Indeed, whereas the U.S. Constitution barred extralegal adjudication with a wide range of procedural guarantees, ranging from jury rights to the due process of law, the courts have assumed that the Constitution’s procedural guarantees apply centrally to the courts and only by extension to administrative adjudication. The result has been to allow the executive to evade most procedural rights simply by acting in its own, administrative tribunals.

In explaining how the Constitution bars extralegal power, I have focused here on the Constitution’s grants of power, on its obstacles to subdelegating lawmaking power, and on its guarantee of the due process of law. Of course, there are other constitutional barriers to extralegal power, which are discussed in my book, Is Administrative Law Unlawful? What has been presented here, however, should be enough to suggest that the Constitution’s barriers to administrative power need to be taken seriously.

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