With president-elect Trump selecting people to head executive branch agencies that both make and enforce administrative law, it’s time to ask: Is such “law” really lawful? The Cato Institute hosted an event with author Philip Hamburger to address this question:
When law in America can be made by executive “pen and phone” alone — indeed, by a White House press release — we’re faced starkly with a fundamental constitutional question: Is administrative law unlawful? Answering in the affirmative in this far-reaching, erudite new treatise, Philip Hamburger traces resistance to rule by administrative edict from the Middle Ages to the present. Far from a novel response to modern society and its complexities, executive prerogative has deep roots. It was beaten back by English constitutional ideas in the 17th century and even more decisively by American constitutions in the 18th century, but it reemerged during the Progressive Era and has grown ever since, regardless of the party in power.
See also a series of essays: Questioning Administrative State, at Cato Unbound.