The return of the king: The unsavory origins of Administrative law

Texas Law Review

Volumn 93, Issue 6, 2015, Pages 1521-1545

  Lawson, Gary ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 84929438628     PISSN: 00404411     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (74)

1. Philip Hamburger, Is Administrative Law Unlawful? 5 (2014).
2. Gary Lawson, Burying the Constitution Under a TARP, 33 Harv. J.L. & Pub. Pol'y 55, 55 (2010).
3. Philip Hamburger, Is Administrative Law Unlawful? 130 (2014)
4. Chevron U.S.A. Inc. v. Nat'l Res. Def. Council, Inc., 467 U.S. 837 (1984).
5. 285 U.S. 22 (1932). Strictly speaking, Crowell ruled against deference to agency factfinding in the particular circumstances at issue, but its dictum broadly approving of such deference in most cases has proven far more influential.
6. For an enlightening account of Crowell's evolution and influence, see generally Mark Tushnet, The Story of Crowell: Grounding the Administrative State, in Federal Courts Stories 359 (Vicki C. Jackson & Judith Resnick eds., 2010).
7. See, e.g., Mistretta v. United States, 488 U.S. 361, 372 (1989) ("[I]n 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.")
8. James M. Landis, The Administrative Process 1 (1938) ("[T]he administrative process springs from the inadequacy of a simple tripartite form of government to deal with modern problems.").
9. Philip Hamburger, Is Administrative Law Unlawful? 5-6 (2014)
10. Professor Hamburger uses the term "subjects" to mean "all persons who, on account of their allegiance to a sovereign, are subject to its laws."
11. To be very clear, Professor Hamburger is (alas!) hardly a libertarian. He lodges no objection to the scope of the modern state. He objects only to the administrative forms through which the power of the modern state is exercised.
12. Barely a week after I wrote this sentence, Scott Johnson on Powerline blog said that Is Administrative Law Unlawful? "is the most important book I have read in a long time." Scott Johnson, introduction to Is Administrative Law Unlawful? A Word From the Author, Powerline (July 2, 2014), http://www.powerlineblog.com/archives/2014/07/is-administrative-law-unlawfula- word-from-the-author.php, archived at http://perma.cc/W3ZT-X28K.
13. I wanted to say that these expressions appear on almost every page, but documenting such a claim would be tedious. So I randomly opened the book to five pages (60, 118, 174, 250, and 308), and discussions of "extralegal" or "absolute" power appeared on three of them.
14. Philip Hamburger, Is Administrative Law Unlawful? 23 (2014)
15. See, e.g., Alan B. Morrison, Administrative Agencies Are Just Like Legislatures and Courts-Except When They're Not, 59 Admin. L. Rev. 79, 80-82 (2007) (outlining the general structure of administrative law as specialized agencies exercising rulemaking and adjudicative power).
16. Philip Hamburger, Is Administrative Law Unlawful? 351 (2014)
17. See, e.g., Cornelius M. Kerwin & Scott F. Furlong, Rulemaking: How Government Agencies Write Law and Make Policy 4 (4th ed. 2011) ("The rules issued by the departments, agencies, or commissions are law . . . ."). Professor Hamburger recognizes this in spots.
18. Philip Hamburger, Is Administrative Law Unlawful? 23 (2014)
19. Professor Hamburger's potent elaborations on and extensions of this point are too numerous even for a string citation. Indeed, they are the central themes of the book. For further discussion of the rampant unconstitutionality of modern administration, see Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 1231, 1233-49 (1994).
20. Philip Hamburger, Is Administrative Law Unlawful? 8 (2014)
21. For Professor Hamburger's detailed response to those who would defend the "representative" character of administrative law through its link to presidentialism or some form of public participation
22. See 1 Bruce Ackerman, We the People: Foundations 47-50 (1991) (postulating the New Deal era as a crucial period of constitutional transformation, dramatically increasing the Presidency's role in higher lawmaking).
23. Professor Hamburger's potent elaborations on and extensions of this point are too numerous even for a string citation. Indeed, they are the central themes of the book. For further discussion of the rampant unconstitutionality of modern administration, see Gary Lawson, The Rise and Rise of the Administrative State, 107 Harv. L. Rev. 12ß50-52 (1994).
24. Philip Hamburger, Is Administrative Law Unlawful? 482-83 (2014)
25. See U.S. Const. art. I, § 7, cls. 2-3 (detailing the process of bill creation, objection, reconsideration, passage by the United States Congress, and bill approval by the President). Administrative agencies, of course, also issue adjudicative orders that function like court judgments but that do not have the procedural pedigree of legitimate court proceedings. Martin H. Redish, Legislative Courts, Administrative Agencies, and the Northern Pipeline Decision, 1983 Duke L.J. 197, 216-17. I tried to find something with which to disagree in Professor Hamburger's too-lengthy-to-cite discussion of why administrative adjudication is unlawful but was unable to find enough of consequence to warrant discussion here. Suffice it to say that this discussion is among the best and most important in the book.
26. U.S. Const. art. I, § 1.
27. Philip Hamburger, Is Administrative Law Unlawful? 488-402 (2014)
28. See Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 327, 339-40 (2002) [hereinafter Lawson, Delegation and Original Meanings] (criticizing the practice whereby legislative power is arguably improperly exercised under "the guise of interpretation")
29. Gary Lawson, Discretion as Delegation: The "Proper" Understanding of the Nondelegation Doctrine, 73 Geo.Wash. L. Rev. 235, 249-67 (2005) (expounding on the argument that attaches a limiting function to the Necessary and Proper Clause).
30. See Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 345-50 (2002) [hereinafter Lawson, Delegation and Original Meanings] (criticizing the practice whereby legislative power is arguably improperly exercised under "the guise of interpretation")
31. Of course, Congress in reality-meaning constitutional reality, not political or doctrinal reality-has no enumerated power to regulate the content of insurance policies, but never mind for the moment. See Randy E. Barnett, Commandeering the People: Why the Individual Health Insurance Mandate Is Unconstitutional, 5 N.Y.U. J.L. & Liberty 581, 585-86 (2010) (arguing that Congress lacks power over the health insurance business under the original interpretation of the Commerce Clause).
32. Cf. 42 U.S.C. § 18022(b)(1) (2012) (instructing the Secretary of Health and Human Services to define "essential health benefits" that must be provided by qualified health plans that are authorized to be sold on exchanges under the Patient Protection and Affordable Care Act).
33. U.S. Const. art. I, § 8, cl. 18.
34. U.S. Const. art. II, § 1.
35. Philip Hamburger, Is Administrative Law Unlawful? 379 (2014)
36. Since my previous analysis did not take into account Professor Hamburger's not-yetexistent book, does that mean that this analysis was unsound? In some respects yes-which I hope to rectify in this Review.
37. U.S. Const. art. 1, § 1.
38. U.S. Const. pmbl. On the significance of "We the People" as the legal authors of the Constitution, see generally Gary Lawson & Guy Seidman, Originalism as a Legal Enterprise, 23 Const. Comment. 47 (2006).
39. U.S. Const. pmbl.
40. 4 The Debates in the Several State Conventions on the Adoption of the Federal Constitution, as Recommended by the General Convention at Philadelphia, in 1787, at 148 (Jonathan Elliot ed., 2d ed. 1836).
41. Gary Lawson & Guy I. Seidman, "A Great Power of Attorney": Understanding the Fiduciary Constitution (forthcoming).
42. Gary Lawson, Guy I. Seidman & Robert G. Natelson, The Fiduciary Foundations of Federal Equal Protection, 94 B.U. L. Rev. 415, 428-30 (2014).
43. See Robert G. Natelson, The Constitution and the Public Trust, 52 Buff. L. Rev. 1077, 1083-86 (2004) (highlighting the fiduciary principles underlying the Constitution's nativity and adoption)
44. Robert G. Natelson, The Legal Origins of the Necessary and Proper Clause, in Gary Lawson, Geoffrey P.Miller, Robert G. Natelson & Guy I. Seidman, The Origins of the Necessary and Proper Clause 52 (2010) [hereinafter Natelson, The Legal Origins] (introducing and subsequently defending the proposition that the Necessary and Proper Clause should "be exercised in accordance with fiduciary principles-and in particular, in accordance with the principles of agency"). I am profoundly grateful to Rob Natelson for pointing my eyes at the obvious agency law character of the Constitution, which I somehow missed for two decades even while studying a clause (the Necessary and Proper Clause) that plainly exemplifies it.
45. Robert G. Natelson, The Legal Origins of the Necessary and Proper Clause, in Gary Lawson, Geoffrey P.Miller, Robert G. Natelson & Guy I. Seidman, The Origins of the Necessary and Proper Clause 58-59 (2010) [hereinafter Natelson, The Legal Origins] (introducing and subsequently defending the proposition that the Necessary and Proper Clause should "be exercised in accordance with fiduciary principles-and in particular, in accordance with the principles of agency"). I am profoundly grateful to Rob Natelson for pointing my eyes at the obvious agency law character of the Constitution, which I somehow missed for two decades even while studying a clause (the Necessary and Proper Clause) that plainly exemplifies it.
46. Philip Hamburger, Is Administrative Law Unlawful? 380-85 (2014)
47. So am I saying that constitutional defenders of delegation are dissemblers or dishonest? Not at all. It may well be that they simply are not interpreters. There are, after all, a great many things-and quite possibly many valuable or interesting things-that one can do with a constitutional text other than interpret it.
48. U.S. Const. art. II, § 1, cl. 1.
49. U.S. Const. art. II, § 3.
50. Philip Hamburger, Is Administrative Law Unlawful? 387 (2014)
51. U.S. Const. art. II, § 1, cl. 1.
52. Steven G. Calabresi & Kevin H. Rhodes, The Structural Constitution: Unitary Executive, Plural Judiciary, 105 Harv. L. Rev. 1153, 1159 (1992)
53. Steven G. Calabresi, The Vesting Clauses as Power Grants, 88 Nw. U. L. Rev. 1377, 1378 (1993).
54. The Supreme Court was absolutely right to define officers of the United States for purposes of the Appointments Clause as "any appointee exercising significant authority pursuant to the laws of the United States . . . ." Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam).
55. U.S. Const. art. I, § 8, cl. 18 (emphasis added).
56. 3 Annals of Cong. 712 (1792). Of course, perhaps the reporter rather than Representative Findley was eloquent; the accuracy of the Annals of Congress in those days is quite spotty. See James H. Hutson, The Creation of the Constitution: The Integrity of the Documentary Record, 65 Texas L. Rev. 1, 36 (1986) (describing the egregious inaccuracies of one early congressional reporter).
57. U.S. Const. art. IV, § 3, cl. 2.
58. See Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 392-94 (2002) [hereinafter Lawson, Delegation and Original Meanings] (criticizing the practice whereby legislative power is arguably improperly exercised under "the guise of interpretation")
59. Gary Lawson, Guy I. Seidman & Robert G. Natelson, The Fiduciary Foundations of Federal Equal Protection, 94 B.U. L. Rev. 448 (2014).
60. Philip Hamburger, Is Administrative Law Unlawful? 389-90 (2014)
61. I do not mean by this, as is sometimes connoted, that they are bad reasons. I mean that they are difficult to grasp. I literally do not understand them and therefore cannot judge them to be good or bad.
62. Gary Lawson, Territorial Governments and the Limits of Formalism, 78 Calif. L. Rev. 853, 900-05 (1990).
63. Packard Motor Car Co. v. NLRB, 330 U.S. 485, 487 (1947). This example is based on Packard-for no better reason than that I opened my Administrative Law casebook to the page containing it.
64. Philip Hamburger, Is Administrative Law Unlawful? 54(2014)
65. This fictitious statute is based on the old Tea Importation Act, ch. 358, 29 Stat. 604 codified as amended at 21 U.S.C. §§ 41-50 (2012), which was repealed by the Federal Tea Tasters Repeal Act of 1996, Pub. L. No. 104-128, 110 Stat. 1198 (1996). For a brief summary of the old law, see Gary Lawson, Federal Administrative Law 59-60 (6th ed. 2013).
66. Gary Lawson, Guy I. Seidman & Robert G. Natelson, The Fiduciary Foundations of Federal Equal Protection, 94 B.U. L. Rev. 415, 428-30 (2014).
67. See Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 355-78 (2002) [hereinafter Lawson, Delegation and Original Meanings] (criticizing the practice whereby legislative power is arguably improperly exercised under "the guise of interpretation")
68. Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43 (1825).
69. See Gary Lawson, Delegation and Original Meaning, 88 Va. L. Rev. 1239 (2002) [hereinafter Lawson, Delegation and Original Meanings] (criticizing the practice whereby legislative power is arguably improperly exercised under "the guise of interpretation")
70. Philip Hamburger, Is Administrative Law Unlawful? 291-98, 313-19 (2014)
71. (quoting The Earl of Shaftsbury's Case, (1677) 86 Eng. Rep. 792 (K.B.) 795; 1 Mod. 144, 148).
72. It is crucial to note that Professor Hamburger has no objection to executive statutory interpretation that controls the activities of executive officials. The President or the Secretary of Treasury can give instructions on how to apply and understand the law to subordinate officials and discipline (or overrule) them if they fail to heed the instructions.
73. See Gary Lawson & Stephen Kam, Making Law out of Nothing at All: The Origins of the Chevron Doctrine, 65 Admin. L. Rev. 1, 4 (2013) ("The Chevron decision itself is a very poor well from which to draw because it did not create, or purport to create, the doctrine that bears its name.").
74. Gary Lawson, Controlling Precedent: Congressional Regulation of Judicial Decision- Making, 18 Const. Comment. 191, 194 (2001).