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Author: Philip Hamburger
Publisher: University of Chicago Press
ISBN: 022611645X
Category : Law
Languages : en
Pages : 646
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Book Description
“Hamburger argues persuasively that America has overlaid its constitutional system with a form of governance that is both alien and dangerous.” —Law and Politics Book Review While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent. With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious—and profoundly unlawful—return to dangerous pre-constitutional absolutism.
Author: Philip Hamburger
Publisher: University of Chicago Press
ISBN: 022611645X
Category : Law
Languages : en
Pages : 646
Get Book Here
Book Description
“Hamburger argues persuasively that America has overlaid its constitutional system with a form of governance that is both alien and dangerous.” —Law and Politics Book Review While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent. With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious—and profoundly unlawful—return to dangerous pre-constitutional absolutism.
Author: Philip Hamburger
Publisher: Encounter Books
ISBN: 159403950X
Category : Political Science
Languages : en
Pages : 50
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Book Description
Government agencies regulate Americans in the full range of their lives, including their political participation, their economic endeavors, and their personal conduct. Administrative power has thus become pervasively intrusive. But is this power constitutional? A similar sort of power was once used by English kings, and this book shows that the similarity is not a coincidence. In fact, administrative power revives absolutism. On this foundation, the book explains how administrative power denies Americans their basic constitutional freedoms, such as jury rights and due process. No other feature of American government violates as many constitutional provisions or is more profoundly threatening. As a result, administrative power is the key civil liberties issue of our era.
Author: Richard Epstein Richard Epstein, Laurence A. Tisch Professor of Law, New York University
Publisher: Rowman & Littlefield
ISBN: 1538141507
Category : Law
Languages : en
Pages : 237
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Book Description
Modern administrative law has been the subject of intense and protracted intellectual debate, from legal theorists to such high-profile judicial confirmations as those conducted for Supreme Court justices Neil Gorsuch and Brett Kavanaugh. On one side, defenders of limited government argue that the growth of the administrative state threatens traditional ideas of private property, freedom of contract, and limited government. On the other, modern progressives champion a large administrative state that delegates to key agencies in the executive branch, rather than to Congress, broad discretion to implement major social and institutional reforms. In this book, Richard A. Epstein, one of America’s most prominent legal scholars, provides a withering critique of how theadministrative state has gone astray since the New Deal. First examining how federal administrative powers worked well in an earlier age of limited government, dealing with such issues as land grants, patents, tariffs and government employment contracts, Epstein then explains how modern broad mandates for delegated authority are inconsistent with the rule of law and lead to systematic abuse in a wide range of subject matter areas: environmental law; labor law; food and drug law; communications laws, securities law and more. He offers detailed critiques of major administrative laws that are now under reconsideration in the Supreme Court and provides recommendations as to how the Supreme Court can roll back the administrative state in a coherent way.
Author: Cass R. Sunstein
Publisher: Belknap Press
ISBN: 0674247531
Category : Law
Languages : en
Pages : 209
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Book Description
Winner of the Scribes Book Award “As brilliantly imaginative as it is urgently timely.” —Richard H. Fallon, Jr., Harvard Law School “At no time more than the present, a defense of expertise-based governance and administration is sorely needed, and this book provides it with gusto.” —Frederick Schauer, author of The Proof A highly original framework for restoring confidence in a government bureaucracy increasingly derided as “the deep state.” Is the modern administrative state illegitimate? Unconstitutional? Unaccountable? Dangerous? America has long been divided over these questions, but the debate has recently taken on more urgency and spilled into the streets. Cass Sunstein and Adrian Vermeule argue that the administrative state can be redeemed so long as public officials are constrained by morality and guided by stable rules. Officials should make clear rules, ensure transparency, and never abuse retroactivity, so that current guidelines are not under constant threat of change. They should make rules that are understandable and avoid issuing contradictory ones. These principles may seem simple, but they have a great deal of power. Already, they limit the activities of administrative agencies every day. In more robust form, they could address some of the concerns of critics who decry the “deep state” and yearn for its downfall. “Has something to offer both critics and supporters...a valuable contribution to the ongoing debate over the constitutionality of the modern state.” —Review of Politics “The authors freely admit that the administrative state is not perfect. But, they contend, it is far better than its critics allow.” —Wall Street Journal
Author: Jerry L. Mashaw
Publisher: Yale University Press
ISBN: 030018347X
Category : Law
Languages : en
Pages : 420
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Book Description
This groundbreaking book is the first to look at administration and administrative law in the earliest days of the American republic. Contrary to conventional understandings, Mashaw demonstrates that from the very beginning Congress delegated vast discretion to administrative officials and armed them with extrajudicial adjudicatory, rulemaking, and enforcement authority. The legislative and administrative practices of the U.S. Constitution’s first century created an administrative constitution hardly hinted at in its formal text. Beyond describing a history that has previously gone largely unexamined, this book, in the author’s words, will "demonstrate that there has been no precipitous fall from a historical position of separation-of-powers grace to a position of compromise; there is not a new administrative constitution whose legitimacy should be understood as not only contestable but deeply problematic."
Author: Mark Elliott
Publisher: Oxford University Press
ISBN: 0198719469
Category : Law
Languages : en
Pages : 857
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Book Description
Administrative Law Text and Materials combines carefully selected extracts from key cases, articles, and other sources with detailed commentary. Aimed at undergraduates studying administrative law, it provides comprehensive coverage of the subject and brings together in one volume the best features of a textbook and a casebook. Rather than simply presenting administrative law as a straightforward body of legal rules, this engaging, critical text considers the subject as an expression of underlying constitutional and other policy concerns, which fundamentally shape the relationship between the citizen and the state. The result is a fascinating account of a subject of crucial importance. Online Resource Centre The book is supported by online an Online Resource Centre, offering the following useful resources: -Updates which cover all the legal developments since publication -'Oxford NewsNow' RSS feeds provide constantly refreshed links to the latest relevant new stories -Interactive timeline of key dates in British political history -Annotated web links
Author: Paul Daly
Publisher: Oxford University Press
ISBN: 0192896911
Category : Law
Languages : en
Pages : 321
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Book Description
A new framework for understanding contemporary administrative law, through a comparative analysis of case law from Australia, Canada, England, Ireland, and New Zealand. The author argues that the field is structured by four values: individual self-realisation, good administration, electoral legitimacy and decisional autonomy.
Author: Adrian Vermeule
Publisher: Harvard University Press
ISBN: 0674974719
Category : Law
Languages : en
Pages : 267
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Book Description
Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons. In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action. As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.
Author: Emmett McGroarty
Publisher: Liberty Hill Publishing
ISBN: 9781545621660
Category :
Languages : en
Pages :
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Book Description
This book discusses a battle of ideologies that has lasted over a century and continues today, pitting those who defend the American Experiment and the constitutional structure against those who seek to replace that structure with one that empowers them to implement their ideas with little or no popular input. Progressives want governance by experts - bureaucrats with administrative power to make political judgments on how people must live, thereby narrowing the realm of their liberty. They expand the administrative state and create an identity of interest with Big Business. Both groups want an ever-expanding government: one motivated by power, the other by money. For its part, Big Business has set up camp on Capitol Hill, lavishly funding establishment politicians, of both parties, who rationalize the need for campaign money to the detriment of waging the good fight. Together, politicians and their cronies elbow the citizen off the policy-making stage. However, this state of affairs is kindling the passions of the constitutional structure's greatest "check" on government excess - the American people. This is a fight that can be won. Deconstructing the Administrative State offers the blueprint for victory. Emmett McGroarty is a senior fellow at the American Principles Project Foundation (APPF). He is a graduate of Georgetown University and Fordham School of Law. Jane Robbins is a senior fellow at APPF. She is a graduate of Clemson University (the 2016 national football champions) and Harvard Law School. Erin Tuttle is a policy analyst at APPF and a graduate of Indiana University.
Author: Philip HAMBURGER
Publisher: Harvard University Press
ISBN: 0674038185
Category : Law
Languages : en
Pages : 529
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Book Description
In a powerful challenge to conventional wisdom, Philip Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. The detailed evidence assembled here shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later. Hamburger shows that separation became a constitutional freedom largely through fear and prejudice. Jefferson supported separation out of hostility to the Federalist clergy of New England. Nativist Protestants (ranging from nineteenth-century Know Nothings to twentieth-century members of the K.K.K.) adopted the principle of separation to restrict the role of Catholics in public life. Gradually, these Protestants were joined by theologically liberal, anti-Christian secularists, who hoped that separation would limit Christianity and all other distinct religions. Eventually, a wide range of men and women called for separation. Almost all of these Americans feared ecclesiastical authority, particularly that of the Catholic Church, and, in response to their fears, they increasingly perceived religious liberty to require a separation of church from state. American religious liberty was thus redefined and even transformed. In the process, the First Amendment was often used as an instrument of intolerance and discrimination.
