The Unlawful Administrative State: A Conversation with Philip Hamburger

Is Administrative

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…

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Defining Impeachment Up

The red herring of impeachment is forcing the rhetorical argument about the swollen executive to unhelpful extremes. Those in a rhetorical rush to impeachment, especially those who have been threatening it for years, may well be guilty of defining the ultimate constitutional sanction down. The proper response is to argue on prudential grounds against it. It is not—as many are doing—to define impeachment up.

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Is Israel at War?

As Hamas empties its current stock of artillery rockets (some 10,000) from Gaza onto Tel Aviv and southern Israel while its allies in Lebanon launch similar projectiles into Galilee, and as half of Israel’s population rushes in and out of shelters, no one can forget that the Arab world (minus Egypt and Jordan) is at war with Israel in fact as well as formally. Nor does the Arab world leave doubt about its war aim: to destroy the Jewish state. But as the Israeli air force strikes gradually at the rockets’ launch sites and storage areas and picks away at some of Hamas’ mid-level leaders, as some 40,000 army reservists prepare for a possible invasion of Gaza, the aims of Israel’s military operations are by no means clear. It is clear, however that these operations do not amount to war. That is because, obviously, they do not aim at winning peace for Israel.

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Has Equality Replaced Christianity?

In my previous post, I asked whether our society is “post-Christian” (as is commonly reported), and I suggested that the question might matter to readers of this blog insofar as many of our revered legal and political commitments are arguably grounded in Christianity (or at least in the bibical or Judeo-Christian tradition). I also quoted T. S. Eliot’s provocative contention that “a society has not ceased to be Christian until it has become positively something else.” Eliot thought that “[w]e have today a culture which is mainly negative, but which, so far as it is positive, is still Christian.”

Suppose Eliot was right in 1939, when he gave his lecture. Even so, things might have changed. So we might ask whether our own society has become “positively something else” other than Christian. Has some other “positive” ideology or philosophy or faith come along to replace Christianity as a foundation for our social and political arrangements? If so, what is that “positive” replacement?

Several years ago in a conference at Cardozo and again in a book published earlier this year (The Rise and Decline of American Religious Freedom), I speculated that Christianity may have been replaced as a cultural and political orthodoxy by “secular egalitarianism.”

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Civilization Hangs From a Thread

Yesterday I enjoyed an exhibition at Tate Britain on the life and art collection of Kenneth Clark. Lord Clark was the leading art historian of his generation, the Director of the British National Gallery, and the  assembler of an exquisite collection of his own.  For me the  exhibition recalled a more personal connection.  His famous  television documentary Civilization had instilled in a teenager from a decidedly non-artistic family an abiding passion for European art, particularly from the Italian Renaissance. What I learned from the exhibit was that this enlargement of my world was yet another gift from those we now call the…

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Is There Standing to Challenge Obama’s Deferred Action for Childhood Arrivals Program?

Two years ago, President Obama adopted the DACA Program, which announced an enforcement policy that “defers deportations from the U.S. for eligible undocumented youth and young adults, and grants them access to renewable two-year work permits and Social Security Numbers.” It has often been said that there is no way to challenge this program, since no one has standing. But I wonder whether this is true. Imagine the following scenario. An employer interviews to fill a position and ultimately decides to hire A, with B his second choice. A is an individual who has a two year work permit under the…

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Fix Our Partisan Civil Service

irsAs most U.S. history textbooks teach, Congress passed the Pendleton Civil Service Act not long after a disgruntled office-seeker shot and killed President Garfield in 1881. The goal was to create a competent and politically neutral civil service. I wonder if, over a century and a quarter after America went down that road, the old problem is returning in a new guise, as we now have a highly partisan civil service, albeit one that has civil service protections.[1] 

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A Plea-Bargain Before Dying

Murder is a subject of perpetual interest, as the history of bestselling fiction amply demonstrates. Having met more than my fair share of murderers in the course of my professional life, I find it fascinating. There are genres of murder as there are of painting. Because I am a doctor, the murders committed by doctors and nurses get my attention, all the more so since one of my close friends is a great expert on the pharmacological aspects of such crimes.

Murder by healthcare staff is one of the few genres of murder in which poison remains the weapon of choice. When, therefore, I happened by chance on a book that promised to explain to me why the doctors and nurses in question killed, I bought it. Disappointingly, by the end of the book I was none the wiser. However, I was not too disappointed; in my heart of hearts I had never really expected enlightenment. Understanding murderers is a tall order, as opposed to describing, as this book did, some murderers’ acts and personal backgrounds.

But the book did fill me in on—and alarm me about—the state of plea-bargaining in the criminal justice system in the United States and, to a lesser extent, Britain.

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Is Ours a “Post-Christian” Society? Should It Matter (to Readers of this Blog)?

T.S. Eliot It is often said, by both Christians and non-Christians, that we live in a “post-Christian” society. In many respects that seems a plausible assessment. In a lecture given at Cambridge University in 1939, however, T. S. Eliot offered a provocative contrary perspective. While acknowledging the weakness of Christianity in his own time, Eliot suggested that “a society has not ceased to be Christian until it has become positively something else.” And he contended that “[w]e have today a culture which is mainly negative, but which, so far as it is positive, is still Christian.” (T.…

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Intensifying International Competition

Judge Stephen Williams has provided an excellent description of some of the Hayekian advantages of international competition. Here I discus how sound legal policy can protect and intensify such competition. First, I want to suggest a few more points about the virtues of international competition.

1. Military Competition. As war has demanded ever better financing and technology, the connection between the flourishing of a nation’s citizens and its success in war has increased. Great Britain beat the continental powers in the eighteenth and nineteenth centuries in no small measure because her limited and democratic government gave lenders confidence that they would be repaid. As a result of the greater capacity to borrow Britain was able to muster greater military force in a crisis.

Today technological progress and military might are ever more connected: the robots conceived today will be the soldiers of tomorrow. The United States’ technological superiority is intimately connected to its open society and an educational system that favors creativity over rote learning. Authoritarian nations are at some disadvantage in replicating the decentralized structures that promote rapid technological progress.

This advantage for the West and the United States should make us wary of entering into agreements to limit the deployment of technologically advanced weapons like drones.

2. Competition from In-Migration of Firms and Individuals. The capacity of the United States to attract immigrants shows the relative power of its social norms. Indeed, its growth from a  relatively small nation of a few million people at the founding to the third most populous nation of the world is the most persuasive evidence of its greatness.

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