Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia University Law School, has written a pamphlet for general consumption that distills the essence of his Hayek Prize–winning scholarly book, Is Administrative Law Unlawful? (Manhattan Institute, 2014). In the tradition of American pamphleteer Thomas Paine, Hamburger believes that he needs to inspire everyday Americans to declare independence from what he considers “the civil liberties issue of our time.” He argues that, just like the American colonists who revolted against the tyranny of the British Crown, 21st century Americans must overthrow the administrative excesses of the “deep state”—the rule of government bureaucrats—and the subsequent restrictions of their constitutional rights to liberty and due process.

Constitutional problems / When it comes to the threat from the administrative state, Hamburger is unmoved by the “economic critique” of administrative power, which is the argument that such control of the economy is undesirable because it is inefficient. It’s more than that, he writes:

The economic critique does not address the breadth of this danger. Indeed, it tends to protest merely the degree of administrative regulation, and it thereby usually accepts the legitimacy of administrative power—as long as it is not too heavy-handed on business.

Given this observation, he is not surprised that “economic criticism has not stopped the growth of administrative power.”

To explain the “administrative threat,” he turns to the legal critique:

The legal critique more fully addresses the problem than does the economic protest, for although much administrative power is economically inefficient, all of it is unconstitutional. And this legal objection is central, because it confronts administrative power on its own terms—on its pretension to bind Americans in the matter of law.

Hamburger argues that administrative power is not built on the use of coercion, but on legal obligation. Moreover, the U.S. Constitution is clear on where authority lies in the three branches, with such power to make laws located in the Congress and judicial power in the federal courts. Administrative power evades many of the Constitution’s legislative and judicial processes, and hence procedural rights of Americans.

For the reader to better understand this danger, he discusses the English absolutism of the 17th century, specifically that of King James I. His “administrative power,” exercised through bureaucratic “prerogative” tribunals and commissions (that era’s versions of administrative agencies), most famously including the Star Chamber and the High Commission. The former was partially founded on statute and the latter was entirely founded on statute, both exercising absolute power “in ways that have come back to life in America.” This absolute or “extralegal” power, says Hamburger, “can be understood as an evasion of law,” while this administrative power “has flowed around the Constitution’s pathways of power and even around formal administrative pathways, thus creating a cascade of evasions.”

He deftly provides examples of modern American “soft absolute power” by citing various actions of the Obama administration. For instance, the Affordable Care Act (ACA) has agencies issuing binding rules, i.e., “exercising legislative power,” on the nation’s health care system. Such rules are justified by what Hamburger refers to as the fiction of the “intelligible principle” whereby agencies are “merely specifying what Congress has enacted.”

He also cites the Clean Power Plan, an Environmental Protection Agency rule designed to reduce greenhouse gas emissions by establishing emissions standards for existing power plants. Hamburger contends that the EPA, through its issuance of the Clean Power Plan, has simply interpreted an ambiguous section of the Clean Air Act.

Another example of this soft power: federal agencies have the legal authority to interpret statutes, and even their own rules, in the form of “guidance”—again, making law. They also can suspend laws using letter waivers, such as the “mini-med” waivers issued under the ACA. These agency waivers to affected parties were not authorized under the ACA, but unilaterally excused the affected parties from complying with some statute or regulation, thus placing the parties above the law.

Hamburger takes the reader on a concise intellectual journey through how the U.S. Constitution bars administrative (extralegal and absolute) power (Articles I and III), delegation, and waivers, and also discusses the Necessary and Proper Clause and federalism. He also addresses the U.S. Constitution’s guarantees of procedural rights, including due process, the reduction of constitutional guarantees to mere options, and substantive rights, arguing that administrative power “ignores all of this.”

He further addresses procedural deprivations in the courts when judges hear appeals from administrative adjudications, including judicial bias in deference to agency interpretation, deference to agency fact-finding (and the concomitant loss of jury rights and judicial bias), and judicial bias even after holding agency acts unlawful. All of this results in what he refers to as “the double violation of such rights, both administrative and judicial.” Lastly, he touches upon the jurisdictional boundaries, noting that the “preeminent qualification concerns the states,” but other, lesser qualifications include local governments, the nation’s borders, and military law, all confined “to edicts that bind or unbind.”

Hamburger argues:

These jurisdictional qualifications are not merely exceptions but valuable boundaries to the Constitution’s principles. By leaving room for administrative power in the states, localities, at the borders, and so forth, these limits allow Americans to establish strong principles against extralegal power in the U.S. Constitution.

He further argues that the most effective way to understand how administrative power threatens civil liberties is by evaluating it through the prism of equal voting rights. He suggests that there is a strong corollary between the expansion of voting rights for African-Americans and women, and the “shift of legislative power out of Congress and into administrative agencies.” Progressives, such as Woodrow Wilson, were concerned that such newly enfranchised groups would reject their “reforms,” thus the Progressives embraced administrative governance. Administrative governance would transfer legislative power from an elected body representing the “enfranchised masses” (including accountability to local, regional, religious, and other distinctive communities) to a “knowledge class,” resulting in a “further step away from the people and into the hands of a relatively homogenized class.”

Reclaiming constitutional authority / Is it practicable to abandon administrative power? Addressing the issue of complexity (a justification for the executive branch issuing administrative rules), Hamburger concludes that Congress has the ability to write statutes that are as “complex” as any agency rule. Echoing legal scholar Richard Epstein, he also questions whether a complex society truly needs complex rules. As to the question of how the courts would handle the vast amount of adjudication that is currently handled by agencies, he argues that the overwhelming volume of such adjudication is “merely the ordinary and lawful exercise of executive power.”

Concerning the value of impartial administrative expertise, he is not convinced that the “knowledge class” in these agencies has greater expertise than the industries they are entrusted to regulate. Most importantly, “although experts can be valuable for their specialized knowledge, they usually cannot be relied upon for decisions that take a balanced view of the consequences.”

What is to be done about “administrative power [that] crushes the life and livelihood out of entire classes of Americans?” Hamburger’s policy recommendations include, first, that Congress should reclaim its administrative power and bar judicial deference to agencies on questions of law, abolish administrative law judges and replace them with real judges, and remove immunity from agency administrators. Second, he would require that the executive branch agencies send their rules to Congress for their adoption. Third, Americans must persuade judges to do their duty, uphold the law, and especially the Constitution.

His policy recommendations are spot-on as a “wish list” that ostensibly is part of the current Republican agenda. Yet I am not convinced that the Republican-controlled Congress is on board with “fully reclaiming” such administrative power. Consider, for example, the Regulations from the Executive in Need of Scrutiny (REINS) legislation, which would require Congress to approve every new major regulation (meaning a regulation with compliance costs of $100 million or more) before the rule can take effect. REINS passed the House in January but it is still awaiting Senate approval. Congress has gradually ceded many of its “legislative” responsibilities to the executive branch, and many lawmakers seem happy to avoid that difficult work.

A positive indicator, however, is the current Congress and the Trump administration have successfully employed the 20-year-old Congressional Review Act to withdraw 14 rules adopted in the final months of the Obama administration. Moreover, in the first six months of the Trump administration, the White House’s Office of Information and Regulatory Affairs has approved significantly fewer major rules and dramatically fewer minor rules than the previous three administrations during their respective first six months in office. (See “Deregulation through No Regulation?” p. 4.) So elected officials are making some progress in overseeing the regulatory state.

Concerning the judiciary, the most effective way to “persuade” judges to uphold the Constitution is to appoint judges who already reflect this judicial philosophy in their opinions. As Hamburger adroitly explains, the federal judiciary clearly shows deference (bias) to agency interpretations and fact-finding—even after holding agency acts unlawful! This is where the Trump administration and the Senate can play a critical role in gradually changing the federal judiciary’s philosophy on the limits of administrative power.

A remarkably easy read for the non-lawyer, Hamburger’s book makes a convincing case that American constitutional liberty and procedural justice have been in slow, troubling decline as a direct result of the expansion of the deep state’s regulatory power. The Administrative Threat is a clarion call for Americans to recognize the ever-increasing power of the federal administrative leviathan—and do something about it.