The Unlawful Administrative State: A Conversation with Philip Hamburger


The standard narrative used to justify the existence of the administrative state and thus legitimate its powers is that America in the late 19th and early 20th centuries entered into a realm of industrialization, corporate power and concentration, density and urbanization, among other causes, that entailed the need for expert rule in executive agencies. Necessity of government action required courts and rule-making agencies that could adjust the social order to rapidly arising needs not anticipated in the ‘horse and buggy’ Constitution. However, what if there really is nothing new under the sun about administrative power? Instead, what if its call for the exercise of judicial and legislative powers, apart from the channels of the Constitution, also found comparative expression in medieval and early modern legal absolutism, particularly in the Stuart monarchs? That’s the stunning claim made by Philip Hamburger in his latest book, Is Administrative Law Unlawful?

Hamburger does not make formal arguments of constitutional law, instead he seeks to show that administrative law, which he hesitates to even properly call law, is a fundamental threat to our liberties in its very operation. The administrative state, he believes, must first and foremost be criticized for the deprivations it works on individual liberty in defiance of the core protections set forth in the Anglo-American legal tradition. This conversation explores how the administrative state operates above and apart from the law. We focus on the detailed legal historical arguments made in the book that compare the operations of our administrative state with the prerogative powers of the Stuarts as the best way to understand the constitutional settlement of the 17th century that law must be exercised through the law of the land and the courts. This settlement naturally found expression in our own Constitution. The reasons why our Founders set forth these limitations are at the heart of Hamburger’s book and this podcast.

Philip Hamburger

Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He is a scholar of constitutional law and its history, and his publications include Separation of Church and State (Harvard 2002), Law and Judicial Duty (Harvard 2008), Is Administrative Law Unlawful? (Chicago 2014), and numerous articles. Before coming to Columbia, he was the John P. Wilson Professor at the University of Chicago Law School. He also has taught at George Washington University Law School, Northwestern Law School, University of Virginia Law School, and the University of Connecticut Law School.

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  1. Nancy D. says

    Administrative Law, if it does not serve to complement the spirit of the Law, is unconstitutional. The HHS Contraception Mandate, for example, is a violation of both the First Amendment, in regards to Religious Liberty, and the Eighth Amendment, due to obscene fines, that violate the principle of proportionality, for those persons who provide a Health Care Plan that does not include contraception coverage.

  2. Derek Simmons says

    After listening, take the time to read Hamburger’s book. It is ironic that the seeds of our American brand of statism
    as practiced in the administrative state are those planted by Bismarck in Germany, and that we don’t have a better understanding of where that led–though we should. Why do we continue to foster the alteration of our American political soil to make these seed flourish?


  1. […] Supreme Court, which seldom grants cases raising non-delegation doctrine, agrees to hear Dept. of Transportation v. Assn. of American Railroads [Roger Pilon/Cato, Gerard Magliocca] And Prof. Philip Hamburger, author of bracing new book Is Administrative Law Unlawful (earlier), has just guest-blogged about it for a week at Volokh Conspiracy, and has a related podcast at Law and Liberty; […]

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