Spokesmen for organizations opposed to the proposed rule argued that it would give the agencies enormous new power, far beyond the scope of the Clean Water Act. The rule would enable them to interfere with the use of almost any piece of property that stays wet for more than a day or two.

Putting aside the pros and cons of this as a policy matter, consider how odd this circumstance is under the U.S. Constitution. Article I vests “all legislative power” in Congress; the executive branch is only authorized to enforce the laws. But what has emerged in the United States over the last 80 years or so is “administrative law,” under which executive agencies actually make law, enforce it, and adjudicate purported infractions. The drafters of the Constitution would be astounded at the spectacle of citizens pleading with Congress, as in that hearing, to stop parts of the executive branch from arrogating lawmaking power to themselves—but that’s where we are.

Why we should have never gotten into this fix is the subject of Philip Hamburger’s book Is Administrative Law Unlawful? Hamburger, a professor at Columbia Law School, argues with great force that it is unlawful. He immediately sets forth his challenge, writing,

Administrative law has transformed American government and society. Although this mode of power is unrecognized by the Constitution, it has become the government’s primary mode of controlling Americans and it imposes profound restrictions on their liberty.

Quite so; very few among us are not affected by the numerous mandates, prohibitions, fees, and rulings made by agencies such as the EPA, Department of Health and Human Services, National Labor Relations Board, Internal Revenue Service, and many others.

Whether any or all of the voluminous administrative rules and regulations are wise is beside the legal point. Hamburger maintains that administrative law itself runs afoul of the Constitution’s separation of powers. If you read the reports from the Constitutional Convention of 1787, we see that the drafters were adamant that each branch of the new government be confined solely to its appropriate functions, without possibility of overlap or usurpation. They had good reasons for insisting on that, Hamburger argues; they wanted to eliminate any possibility of the kind of royal prerogative power that had existed in Europe ever emerging in the United States. Unfortunately, their handiwork was inadequate. Administrative law is a reemergence of prerogative power; much like a disease we thought we had eliminated, prerogative has come back and is spreading rapidly.

History of divided government / In the first part of the book, Hamburger covers the history of the battle against prerogative power going far back into British history. The Magna Carta was the opening battle in the war to put restraints on the king’s authority. Legal history buffs will savor Hamburger’s telling of the thrust and parry that went on for centuries between Crown and Parliament. Especially intriguing were the battles during the reign of James I, who insisted on nearly unlimited power to govern.

A pivotal consequence of his ambition was the 1610 Case of Proclamations, in which the Crown maintained that the King was entitled to rule through proclamations and the nation’s judges were obliged to show deference to them. Sir Edward Coke, chief justice of the Common Pleas, refused to be bullied into a decision his sovereign would smile upon. He ruled against James, observing that the law of England was “divided into three parts, common law, statute law, and local custom; but the king’s proclamation is none of them.” The notion that judges should give deference to the modern equivalent of proclamations—rules and edicts of administrative agencies—still resounds four centuries later, but Coke was made of sterner stuff than most of our modern jurists.

Moving ahead in time and across the Atlantic, the leaders of our revolution wanted to guard against concentrated governmental authority. Hamburger writes that the Americans

were very familiar with absolute power. They feared this extra-legal, supra-legal, and consolidated power because they knew from English history that such power could evade the law and override all legal rights.

Their concerns gave rise to the Constitution’s provisions that create a separation of powers and checks and balances intended to confine the three branches to distinct spheres. That worked for a while.

During the Progressive Era, however, Congress began establishing administrative agencies charged with implementing statutes it passed—the Interstate Commerce Commission leading the pack. No constitutional problem in doing that, but before long Congress sought to give such agencies de facto legislative power to make law through regulations. The Supreme Court repeatedly ruled against that on the grounds that Congress was not empowered to delegate its authority to other branches.

The non-delegation doctrine held through 1936 and numerous New Deal statutes crashed and sank against it. But in 1937, the Court (shaken by Franklin Roosevelt’s threat to pack it with new members sympathetic to his vision of executive power) chose to ignore the doctrine in the pivotal case NLRB v. Jones & Laughlin Steel. The Court gave lawmaking by bureaucratic fiat the green light. Ever since, it has mostly turned a blind eye to the exercise of legislative power by unelected administrators, although it sometimes strikes down administrative rules or decisions that go “too far.”

Bureaucratic maze / If pressed on the legitimacy of administrative law, most judges, lawyers, and legal scholars say that it’s a kind of power implied by the Constitution. Hamburger argues that, quite the contrary, it is exactly the sort of extra-legal power that the Founders meant to prevent. The main line of defense for administrative law is that modern circumstances have made it necessary and hence constitutional. Hamburger devotes a chapter to refuting that claim.

Supposedly, the increasing complexity of society and the problems facing the government make it imperative that Congress turn over much of the essential lawmaking to agencies staffed with experts who can quickly react with new regulations as they’re needed. In response, Hamburger argues that while society is different and more specialized than when the Constitution was written, it does not follow that we must cope with those changes by a growing maze of bureaucratic controls. Our technology is more complex, but that does not mean that our laws must change. Referring to Richard Epstein’s book Simple Rules for a Complex World, Hamburger points out that simple, basic rules (such as those embodied in the common law) work as well or better than efforts by bureaucrats to write new laws to deal with every problem they see developing.

Moreover, nothing prevents the legislature from doing its job when legal change is called for. He writes,

Even if regulatory complexity is generally needed, statutes can be just as complex and subtle as administrative rules. Both types of enactment can be highly detailed and both can be drafted by experts—the only difference being that statutes are adopted by Congress rather than by the heads of agencies.

Quite so, and if Congress had to write exact laws, it might forebear from venturing into areas of life that are best left up to common law and voluntary processes. Instead we get vague statutes (the 2010 Patient Protection and Affordable Care Act being a great example) that leave much of the hard, contentious decisionmaking to bureaucrats. In further support of Hamburger’s position, I would point out that in the rare instances where we have abolished regulation and allowed the market to discover the best ways of dealing with problems, the results have been highly favorable—the elimination of the Civil Aeronautics Board to free the airlines to compete, for instance.

Echoing one of Alexis de Tocqueville’s famous observations, Hamburger sees danger in the soft despotism of administrative law, writing,

In democratic circumstances, administrative power can be a benevolent version of absolute power, and it often seems more enervating than immediately threatening. What begins softly, however, is apt to become harsh.

In recent years, we’ve certainly witnessed harsh, arrogant, abusive behavior from regulators enforcing their whims. Remember the EPA official who was sacked for blurting out that his modus operandi was to “crucify” one business so others in the industry would become compliant?

After completing his alarming book, Hamburger does not conclude with an optimistic chapter outlining an antidote for the legal poison of administrative law. I suspect that’s because he knows that not one of the branches of the government is apt to take any action.

The U.S. Supreme Court could revive its precedents against the delegation of legislative authority, but currently only Justice Clarence Thomas might be willing to engage in so startling a constitutional U‑turn. The rest of the Court and most future prospects probably regard it as “settled law” that administrative agencies may act the way they act.

Congress is also implicated here because lawmakers prefer to write vague statutes that delegate the hard decisions to executive branch bureaucrats who don’t have to worry about elections. Will future congressional leaders put an end to that practice? Perhaps, but that also seems unlikely.

That leaves the president. A future president might understand that the morass of administrative law is a problem that harms the country in numerous ways. He might order his cabinet officers to see to it that their departments stop adding pages to the Code of Federal Regulations and take serious violations into actual courts. That’s less unlikely, but still the political hazards of “turning back the clock” would be severe.

In sum, Hamburger has told us that allowing administrative law to take root was a constitutional mistake of the first magnitude, and one from which there is no apparent escape.