Philip Hamburger Website

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.

Posner and Gorsuch

Wooden Gavel with book over white

As the Senate prepares to question Judge Neil Gorsuch for possible appointment to the Supreme Court, my former colleague Eric Posner asks: “Is Gorsuch a Hamburgerian?” Posner thereby attempts to set up Gorsuch by associating him with . . . not really me, nor my scholarship, but a boogeyman of Posner’s imagination.

The version of my scholarship Posner presents to the world is almost unrecognizable: “Hamburger is anti-elite”; “Hamburger is anti-foreigner”; “Hamburger is anti-executive.” These views bear no resemblance to my scholarship or my personal opinions, and it therefore is necessary to state my views as they really are.

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Investigating the Investigators

AGs United for Clean Power press conference on March 29 in New York.

The last several weeks have seen extraordinary developments in the climate-change investigation of ExxonMobil. What once was an investigation of ExxonMobil by states attorneys general has become an inquiry into the misconduct of the attorneys general. First came a mid-September order from Judge Ed Kinkeade, of the U.S. District Court for Northern Texas. Exxon had received a subpoena requiring massive disclosure—a subpoena (or “Civil Investigative Demand”) signed not by a judge but merely by the Attorney General of Massachusetts, Maura Healey—and the company responded by suing to enjoin its enforcement. Ordinarily (under the Younger abstention doctrine) a federal court would hesitate…

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The Unconstitutionality of the Exxon Subpoena

exxon

What is the power of an attorney general to pry into private papers? Earlier this month, New York Attorney General Eric Schneiderman issued a subpoena to Exxon, demanding that the company turn over many of its records, so that he could investigate it for fraudulent statements about the climate. Many Americans cheered. The subpoena, however, comes with constitutional dangers.

The exact content of the subpoena is not yet known. It appears, however, to have come from Attorney General Schneiderman rather than from a grand jury, and if this is true, it is problematic.

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HHS’s Contribution to Black Death Rates

HEADQUARTERS OF U.S. DEPARTMENT OF HEALTH, HUMAN SERVICES

A recent Washington Post op-ed by Victoria Phillips—a professor of public health at Emory—notes the disturbing reality that black men are much more likely to die after bypass surgery than white men. Her article is entitled: “What Surgery and Police Have in Common: Both Kill a Disproportionate Number of Black Men.” In response to the medical deaths, Phillips suggests that doctors should examine themselves. In fact, they also should examine the U.S. Department of Health and Human Services (HHS) and its regulation of human-subjects research.

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Chevron Deference About to Hit a Snag

SEC

A recent Supreme Court order portends interesting limits on the Securities Exchange Commission and on Chevron deference. Earlier this fall, I observed how the SEC evades jury rights and other rights of criminal defendants by proceeding against them in SEC hearings. Now, as noted by Ed Mannino, the Supreme Court is beginning to focus on a related danger.

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Victim of a Practice Audit

Audit Word Ball Anxiety Fear Tax Financial Accounting PracticesOver at Instapundit, I read yesterday that the IRS defended its Breitbart audit with this statement: “The IRS stresses that audits are based on the information related to tax returns and the underlying tax law — nothing else.”

Glenn aptly writes “And who could hear this without laughing?” Actually, I know from personal experience it is false, because a while back I was subject to a “practice audit.”

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The SEC and the Cascade of Evasions

SECA recent WSJ editorial, The SEC as Prosecutor and Judge, comments on the SEC’s hints that it will be shifting its enforcement of insider trading laws from the courts to administrative adjudications:

A year after vowing to take more of its law-enforcement cases to trial, Securities and Exchange Commission officials now say the agency will increasingly bypass courts and juries by prosecuting wrongdoers in hearings before SEC administrative law judges, also known as ALJs. “I think you’ll see that more and more in the future,” SEC Enforcement Director Andrew Ceresney told a June gathering of Washington lawyers, adding that insider trading cases were especially likely to go before administrative judges.

Ceresney undoubtedly thinks this will be efficient — not to mention advantageous in avoiding those pesky critters known as judges and juries.

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Chevron, Independent Judgment, and Systematic Bias

 

The recent circuit court decision in Halbig v. Sebelius has exposed doubts about Chevron deference, but what exactly is wrong with such deference? The usual answer comes in terms of delegation, representative government, and other objections to agency interpretation. But there are more direct objections to judicial deference. First, it violates the constitutional duty of judges to exercise their own, independent judgment. Second, it is systematic judicial bias in violation of the Fifth Amendment.

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From Prerogative to Administrative Power

My new book, Is Administrative Law Unlawful?, argues that administrative power revives prerogative power. This is not, however, an entirely original thesis. On the contrary, it once was widely acknowledged by proponents of administrative power.

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Extralegal Power

Wilson IIIn 1887, when Woodrow Wilson was still a mere academic, he wrote an essay that served as a clarion call for administrative power. Revealingly, one of his themes was that reformers faced greater difficulties in modern democracies than they had in the monarchies of the past:

Once the advantage of the reformer was that the sovereign’s mind had a definite locality, that it was contained in one man’s head, and that consequently it could be gotten at. . . . Now, on the contrary, the reformer is bewildered by the fact the sovereign’s mind has no definite locality, but is contained in a voting majority of several million heads; and embarrassed by the fact that the mind of this sovereign is also under the influence of . . . preconceived opinions; i.e., prejudices which are not to be reasoned with because they are not the children of reason.

Exacerbating this problem was the diversity of the nation, which meant that the reformer needed to influence “the mind, not of Americans of the older stocks only, but also of Irishmen, of Germans, of negroes.”

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