The administrative state is a modern invention. It was, and remains, a necessity in our complex modern age. Or so goes the argument.
“The trouble in early times was almost altogether about the constitution of government; and consequently that was what engrossed men’s thoughts,” wrote Woodrow Wilson in his Study of Administration (1887). “The functions of government were simple, because life itself was simple. . . . No one who possessed power was long at a loss how to use it.” That all changed—apparently in Wilson’s generation—when “present complexities of trade and perplexities of commercial speculation” posed new challenges for government.
“In brief,” Wilson wrote, “if difficulties of governmental action are to be seen gathering in other centuries, they are to be seen culminating in our own.” So we need experts: “[W]e have reached a time when administrative study and creation are imperatively necessary to the well-being of our governments saddled with the habits of a long period of constitution-making.”
Necessary; there is no alternative. As the Supreme Court has declared, “[I]n our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”
That is a convenient narrative for the defenders of the administrative state. But it is fanciful. It is not historically accurate. And the justifications—especially the claim of necessity—are not new. Neither are the powers of the administrative state. Indeed, Philip Hamburger, professor of law at Columbia, argues here that it was precisely these justifications and powers that English and American constitutional law developed to protect us against. Not only is the modern administrative state unconstitutional, it is the very thing our Constitution sought to prevent.
There used to be terms to describe the conduct and powers of the modern administrative state. When the Obama administration issues waivers to favored companies excusing them from some health care regulations, our English ancestors would have called it the dispensing power. When the administration decides that it will no longer enforce certain immigration laws, our ancestors would have called that the suspending power. When the president issues executive orders that make law—or more commonly, when his administration promulgates rules that bind individuals—they would have called that prerogative lawmaking.
When administrative agencies, which are not courts of law, issue binding orders to appear and testify; when they command homes, businesses, and records to be kept open for inspection; when they require businesses to self-report regulatory violations; when they bind subjects without juries or independent judges—there were terms for such actions, too. They were general warrants and writs of assistance. They were self-incrimination and ex officio proceedings. They were Star Chamber and the High Commission.
They were tyranny.
“The history of administrative law,” writes Hamburger, “reaches back many centuries.”
It is thus not a coincidence that administrative law looks remarkably similar to the sort of governance that thrived long ago in medieval and early modern England under the name of “prerogative.” . . . Administrative law thus turns out to be not a uniquely modern response to modern circumstances, but the most recent expression of an old and worrisome development.
Hamburger meticulously (and sometimes laboriously) demonstrates how the modern administrative state revives all the attributes of the royal prerogative and absolute power. Even in the details, modern administrative law is shockingly reminiscent of 16th- and 17th-century royal conduct.
Today, for example, administrative agencies claim statutory authority to create rules—that is, to make law—where constitutionally enacted statutes are ambiguous. Agencies “interpret” their own statutes, and courts give those interpretations deference. King James I argued that he had the same powers as his common law judges to interpret law and that they must defer to his interpretation.
What has changed?