Administrative law as subversion of the Constitution

From Extortionary Governance by Nelson Lund.

The United States seeks to secure the rule of law, on which our freedom and prosperity depend, through written constitutions enforced by an independent judiciary. Although governments will sometimes get away with ultra vires acts, we rely on constitutional checks and balances to prevent serious usurpations of power. If Philip Hamburger is right, however, constitutional violations by the federal government have become so pervasive, oppressive, and readily tolerated that we Americans risk becoming incapable of self-government.

In 2014, Hamburger published a massive historical and analytical study arguing that modern administrative law is really a revival of the prerogative power once exercised by English monarchs. The English successfully fought to replace this power with constitutional law, under which statutes are adopted by an independent legislature and enforced by independent courts. Our Founders fortified the barriers against arbitrary rule with written constitutions that provide for judicial review of actions by the executive and the legislature alike. But Hamburger argued that we are now largely ruled by unelected and unaccountable bureaucrats who exercise a form of administrative power that “systematically steps outside the Constitution’s structures, thereby creating an entire anti-constitutional regime.”

Hamburger’s new book, Purchasing Submission, describes a departure from the Constitution that is even worse. While administrative law may be “anti-constitutional,” it is typically applied with at least a simulacrum of the formal protections offered by the Constitution’s prescribed mode of making and enforcing law. When our rulers require us to surrender our legal rights as a condition of receiving benefits from the government, even this protection is lost.