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The History and Danger of Administrative Law

Philip Hamburger
Columbia Law School


Philip HamburgerPhilip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He received his B.A. from Princeton University and his J.D. from Yale Law School. He has also taught at the University of Chicago Law School, the George Washington University Law School, the University of Virginia Law School, and Northwestern Law School. A contributor to National Review Online, he has written for several law reviews and journals, including the American Journal of Legal History, the Supreme Court Review, the Notre Dame Law Review, and the Journal of Law and Politics. He is the author of Separation of Church and State, Law and Judicial Duty, and, most recently, Is Administrative Law Unlawful?



In sum, the conventional understanding of administrative law is utterly mistaken. It is wrong on the history and oblivious to the danger. That danger is absolutism: extra-legal, supra-legal, and consolidated power. And the danger matters because administrative power revives this absolutism. The Constitution carefully barred this threat, but constitutional doctrine has since legitimized this dangerous sort of power. It therefore is necessary to go back to basics. Among other things, we should no longer settle for some vague notion of “rule of law,” understood as something that allows the delegation of legislative and judicial powers to administrative agencies. We should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power or more concretely of extra-legal, supra-legal, and consolidated power. Then we at least can begin to recognize the danger.