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Is Administrative Law Unlawful?

is-administrative-law-unlawful-coverWith 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.

Listen to professor Hamburger discuss his book: Is Administrative Law Unlawful?

See also a series of essays: Questioning Administrative State, at Cato Unbound.

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Administrative Law as the King’s Prerogative

Donald Boudreaux writes:

… from page 26 of Philip Hamburger’s learned, timely, and important 2014 book, Is Administrative Law Unlawful? (footnote deleted):

The relevance of absolute power for administrative law became more clear when one realizes that Anglo-American law has a history of an extra- and supralegal power in what what known as the “prerogative.”  This was the name of the power claimed by the English kings, and it corresponds to the administrative power claimed by the president or under his authority.

U.S. presidents today, with the complicity of the courts and through the cowardice of Congress, routinely issue diktats of the sort that rightly stoked the anger and fear of the great Anglo-American constitutionalists such as Sir Edward Coke and the framers of the U.S. Constitution.

Source: Quotation of the Day… – Cafe Hayek

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