Tuesday, September 2, 2014

Vermeule Reviews Hamburger's "Is Administrative Law Unlawful?"

No,” by Adrian Vermeule, Harvard Law School, is a review of Philip Hamburger’s Is Administrative Law Unlawful?   It is forthcoming in the Texas Law Review.  Here is the abstract:
Philip Hamburger has had a vision, a dark vision of lawless and unchecked power. He wants us to see that American administrative law is “unlawful” root-and-branch, indeed that it is tyrannous -- that we have recreated, in another guise, the world of executive “prerogative” that would have obtained if James II had prevailed, and the Glorious Revolution never occurred. The administrative state stands outside, and above, the law.

But before criticism, there must first come understanding. There is too much in this book about Charles I and Chief Justice Coke, about the High Commission and the dispensing power. There is not enough about the Administrative Procedure Act, about administrative law judges, about the statutes, cases and arguments that rank beginners in the subject are expected to learn and know. The book makes crippling mistakes about the administrative law of the United States; it misunderstands what that body of law actually holds and how it actually works. As a result the legal critique, launched by five-hundred-odd pages of text, falls well wide of the target.
In his conclusion, Professor Vermeule considers the possibility that Professor Hamburger’s book “is interestingly wrong, in an unbalanced sort of way,” but decides that it is “merely disheartening.”  To compare the Federal Trade Commission to Star Chamber is “irresponsible,” Professor Vermueue writes, because it tends to feed a fear of dictatorship ”that bubbles unhealthily around the margins of popular culture, and that surfaces in disturbing forms on extremist blogs, in the darker corners of the Internet."

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