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.
Listen to professor Hamburger discuss his book: Is Administrative Law Unlawful?
See also a series of essays: Questioning Administrative State, at Cato Unbound.
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
The Daily Camera asks its editorial advisory board about the controversy at Monarch High School in Colorado:
A controversy over school rules, leadership and parenting erupted at Monarch High after the Boulder Valley school board decision to reinstate a student [Dylan Quick] who had been removed from the student council. The board voted 5-2 to reverse a decision by the principal and supported by the superintendent to remove a senior as head boy of the Louisville school, after he had been caught with marijuana paraphernalia at the school. The student council constitution states that a head boy can’t be removed without first being impeached by the council, and the boy’s parents, including his father — the Adams County District Attorney — had complained that the rules were not followed. What do you think?
“Monarch High is not a monarchy!” protesters could have chanted. By superseding the Student Council Constitution, the principal resembles a monarch high on power. “The King is above the law,” England’s King James I proclaimed in 1598.