Columbia Law School professor Hamburger may have written this monograph with both the serious law student and the interested layperson equally in mind. It’s a quick read that is loaded with solid arguments against the constitutionality of the Federal administrative law system. He makes a case that it is an assault on citizen’s legal rights as guaranteed in the Constitution. A thoughtful reader will understand his thinking, without needing to master the legal history or technicalities sprinkled throughout.
While other works on this topic focus on the activist history of the Supreme Court in whittling away at the Bill of Rights and on some of the bizarre outcomes that have caused individuals undue hardship, Hamburger reaches back into the history of the English system from which the US founders borrowed heavily. He shows the tension between the Crown and Parliament through the 16th and 17th Centuries and how Parliament, through both laws and bloody revolutions, sought to curb the unlimited authority that kings claimed in certain matters by bringing them into the legal system under the purview of the courts and due process. The U.S. founders were informed by this history as they crafted the Constitution and the Bill of Rights to define separation of powers between the branches, and to preserve the right for defendants in all cases, both criminal and civil, to due process and a jury trial in courts that operated separately from the Executive and Legislative branches. Hamburger illustrates how the current administrative law system (the way Federal agency rules are enforced) not only deprives defendants of their right to due process but also restores to the Executive Branch and even to the Legislature (Congress), the sort of unlimited legal authority that the Constitution’s framers were specifically trying to prohibit.
Hamburger argues here in broad strokes, and that sometimes leaves him vulnerable to worthy counterarguments. That’s probably because he intended to write something much shorter than full book length (his 2014 work, “Is Administrative Law Unlawful?” is longer and perhaps contains more complete arguments). But even here, he is careful enough to acknowledge where historical precedent and Constitutional intent leaves certain binding decisions to an executive’s supreme authority (which could constitutionally be vested in an agency). One "for instance:" the determination of an immigrant’s citizenship status. Acknowledging these exceptions lend credibility to this work as a whole.
Libertarians and strict constructionists will find good material here to buttress their arguments, and the professor’s work is bound to influence some of his students. As with so many works on politics and public policy, Hamburger is unlikely to persuade those who have built their careers on the opposite view. Nevertheless, Hamburger’s thinking is certain to help those on either side of this question prepare better arguments. And isn’t that what lawyers and judges do!
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