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[By Prof. Philip Hamburger:] Extralegal power, delegation, and necessity

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Conventionally, the constitutional analysis of administrative power focuses simply on whether this sort of power collides with particular provisions of the Constitution. It is useful, however, before turning to detailed constitutional questions, to consider the way in which this power is extralegal. With this concept, one can begin recognize the dangerous nature of administrative power and thus can begin to understand the importance of the constitutional objections.

The notion of extralegal power is not altogether new, for it once was employed to analyze absolute power. Of course, there were other ways of defining absolute power. For example, it sometimes was said that absolute power was unlimited. But most basically, it was extralegal, and this aspect of absolute power remains relevant for understanding administrative power. To be precise, my book argues that administrative power consists of binding extralegal edicts.

What does it mean to say that administrative power is extralegal? The government ordinarily issues edicts binding Americans by passing laws, or by securing court decisions applying laws. In contrast, when the government works through administrative power, it binds Americans through other edicts or commands, which are not law. It is in this sense that administrative law is extralegal. It binds Americans not through law, but though other mechanisms, and in this way it is beyond the law or extralegal.

One might protest that administrative power is delegated or at least authorized by statute, and this often is true. But the question of whether power is authorized by law is very different from whether it is imposed through law. This already was already from the 1539 Act of Proclamations, in which Parliament authorized Henry VIII to issue binding proclamations. Although the proclamations thus were authorized by law, they remained binding extralegal edicts and thus were understood to be acts of absolute power. Similarly, nowadays, the whole point of administrative power is to bind Americans not merely through the law, but through other sorts of edicts, and the statutory authorization for this alternative mode of governance does not diminish the reality that Americans are bound by acts that are not the acts of Congress or of the courts.

In this sense, administrative power is extralegal power. Administrative edicts come from all sorts of agencies, whether executive or independent. And they come in all sorts of forms, whether rules, adjudications, interpretations, guidance, or otherwise. But what they all have in common is that they attempt to bind Americans not merely through law, but through other mechanisms.

In short, like traditional absolute power, administrative power is extralegal. This concept may seem disturbingly medieval and thus not applicable to America. But governments that are expected to rule through law have almost always, to one degree or another, sought to escape the forms of law. Frustrated by the difficulties of law and its adjudication, governments in all eras, and of all types, have been tempted by the possibilities of governing through other mechanisms, and it therefore should not be astonishing that what Americans consider distinctively modern is actually a recurring phenomenon.

As in the past, the justification has been necessity. Necessity traditionally was understood to rise above the law, and it therefore was the standard justification for absolute power — in particular, for binding extralegal power. Similarly, in the twentieth century, necessity was a conventional defense for administrative power. James Landis, for example, argued that administrative power is required by the “exigencies of governance” and that it therefore is not a matter of great concern if administrative law “does violence to the traditional tripartite theory of governmental organization.” The Supreme Court itself has repeatedly justified administrative law on the basis of its necessity. Congress’s power in relation to the other branches, the Court writes, “must be fixed according to common sense and the inherent necessities of the government coordination.” As a result, “[d]elegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility.” Basing this governmental necessity on a social necessity, the Court adds that, “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” These layers of governmental and underlying social necessity have become a common refrain.

It may seem that the necessity defense has a foundation in the Necessary and Proper Clause, but this clause was carefully drafted to avoid giving Congress a power to rearrange the Constitution’s tripartite allocation of powers. It is widely assumed that the Necessary and Proper Clause authorizes Congress to do what is necessary and proper for carrying into execution the powers of government. The Clause, however, is more cautious. As explained by my book,

It ties what is legislatively necessary and proper not merely to the other powers, but to the other powers as vested in the government and its component bodies. In the words of the clause, Congress can make laws necessary and proper “for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.” Thus, Congress is authorized to do what is necessary and proper for carrying out not legislative powers in general, but the legislative powers vested in Congress; not simply executive power, but the executive power vested in the president; not simply judicial power, but that vested in the courts.
The clause thereby carefully avoids giving Congress authority to relocate these powers. When Congress authorizes administrative lawmaking, it shifts legislative power to the executive, and it thereby displaces the legislative power vested in Congress. Similarly, when Congress authorizes administrative adjudication, it shifts judicial power to the executive, and it thereby displaces the judicial power vested in the courts. It thus does not carry out these powers as vested in Congress and the courts, but rather subverts them, and it therefore cannot find support in the Necessary and Proper Clause.

The delegation of legislative and judicial power to administrative agencies is thus without support in the Necessary and Proper Clause.

And this brings the question back to the old absolutist claim of a necessity that rises above the law. Strikingly, not only Landis, but many administrative law scholars have been quite candid about their belief that administrative power is justified by a necessity that alters or runs above the law.

But is administrative power really necessary? The claim of necessity is an empirical claim, and it should have some basis in scientifically serious empirical evidence. Thus far, however, the evidence has not been forthcoming. Administrative power has flourished in the federal government for over a century, and there still is no serious empirical evidence of its necessity.

To be clear, I should emphasize that the sort of power at stake here is not mere executive power, whether policing or the distribution of benefits. Instead, the question concerns the use of extralegal edicts to bind persons who are subject to the laws of the United States. Is this administrative power really necessary?

Undoubtedly, many Americans rely on the substantive duties imposed through administrative law — for example, the duties that protect against dangerous drugs. Any such substantive duties, however, can just as well be imposed by statute and enforced in the courts. I have more to say about the Food and Drug Administration in my book, but the point here is simply that policy is different from the mode of enacting and enforcing it, and if the administrative mode of enactment and enforcement is really necessary, there should be some serious empirical evidence of this.

There should be empirical evidence, moreover, not merely about the abstract necessity of binding extralegal power, but about particular instances of it. As in the times of monarchical absolute power, the necessity asserted on behalf of administrative power usually is nothing more than an abstract justification, not one grounded in the particulars of any particular administrative regulations or interpretations. But federal administrative power governs many different areas of American life, and any serious empirical evidence of its necessity must therefore be relatively textured and detailed.

For example, even if there were empirical evidence that environmental regulations laws need to be adopted and enforced by the EPA, this would not be evidence that drug regulations need to be adopted and enforced by the FDA. And even if there were evidence that one class of drugs needed FDA regulation, this would not be evidence that another class of drugs needs such regulation. Moreover, the evidence that such regulation was necessary in 1902, 1960, or even 2000 would not suffice to justify extralegal power today. Times change, and empirical evidence of necessity in the distant past, or even a decade ago, is not very persuasive about the necessity today.

Those who think that necessity justifies departures from the Constitution, let alone the massive departures apparent in administrative power, have the onus of showing the necessity. And thus far, even after more than century of administrative power, serious empirical evidence of the necessity has been lacking.

Much of the thousand-year-old history of the common law can be understood as a long-standing tension between absolute power and government through law. There has been a continuing struggle over the nature of government – over whether government can rule through extralegal edicts or whether it must rule merely through the law. Kings repeatedly insisted on the necessity of the extralegal power, and those whom they thereby constrained pushed back — as evident in Magna Charta, in the medieval due process statutes, and finally in the development of constitutional law.

The temptations of extralegal power, however, never went away. Although defeated in prerogative form, this sort of power has come back in administrative form. It therefore is too formalistic and narrow to think about the problem in terms of administrative power. Instead, it needs to be recognized as part of the more deeply engrained problem of extralegal power. The temptation to evade government through law is all too human, and it repeatedly has resulted in extralegal power.