Hamburger Replies to Craig's Critique of "Is Administrative Law Unlawful?"

Philip Hamburger, Columbia University Law School, has posted English Experience and American Administrative Power, which is forthcoming in the Missouri Law Review:    

What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.

In opposition to my claims about American law, Paul Craig lobs three critiques from across the pond. His two main arguments concern the English history of prerogative and administrative power – though in addition he makes a conceptual point about the distinction between legislative and judicial power. It will be seen that Craig’s account repeatedly misunderstands the history and even the conceptual framework.

Nonetheless, his article usefully draws attention to some important issues. This therefore is a good occasion not simply to respond, but more broadly to explore the constitutional significance of English prerogative and administrative power.

This Article is organized around the issues raised by Craig. (I) In challenging my thesis that federal administrative power revives a version of prerogative power, he argues that these types of power are crucially different because the prerogative was independent of statute. But his statute-free vision of prerogative power is grossly incorrect, and it therefore cannot distinguish prerogative and administrative power. His argument also is unresponsive. My thesis is that administrative power revives the extralegal character of the absolute prerogative – in other words, that both sorts of power have bound subjects through extralegal edicts – and this extralegal power remains a problem regardless of statutory authorization and limits.

(II) Against my thesis that the English constitution developed in response to extralegal power, Craig points to the existence of seventeenth- and eighteenth-century English “administrative” power. My book also points to this administrative power. Craig, however, relies on its mere existence to suggest that the English constitution did not repudiate extralegal power. This is utterly mistaken. The English constitution clearly included ideals against extralegal power, even though (as my book observes) the English did not apply them systematically – especially not to localized administrative power. The existence of mostly localized administrative power therefore does not undermine my conclusion about the English constitutional rejection of extralegal power.

(III) Against my argument about extralegal power, Craig notes that the distinction between legislative and judicial power can break down at the edges. His observation is not unreasonable. But it is irrelevant, as my argument about extralegal power does not depend on this distinction.

Along the way, this Article also addresses three related but more broadly framed questions. First, how can one distinguish absolute prerogative power and administrative power in seventeenth- and eighteenth-century England? Second, how did the English resolve the tensions between their inherited types of administrative power and their constitutional principles? Third, how did Americans resolve the tensions between their inherited types of administrative power and their constitutional principles?

In sum, Craig’s conclusions about English prerogative and administrative power are simply mistaken. In both England and America, constitutional principles developed in response to the danger of extralegal power, as exemplified by the absolute prerogative. Although the English did not directly apply these principles their inherited and mostly localized administrative power, Americans in the U.S. Constitution pursued their constitutional principles more systematically.