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Is Administrative Law Unlawful? (3)

by Scott Johnson

Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School and the author, most recently, of Is Administrative Law Unlawful?

Professor Hamburger argues that administrative law is unlawful, unconstitutional and illegitimate. Drawing on English legal history, he contends that the regime of agency government resurrects the prerogative power once claimed by English kings and places it in the executive branch of the United States government. The history makes clear that this is exactly what our Constitution was carefully designed to prevent.
Federal regulations promulgated by administrative agencies now dwarf the statutes passed by Congress. The regime of agency government depends to a great extent on Congress’s delegation of its legislative power to agencies of the executive branch. Such delegation of legislative power is politically expedient for Congress, which relieves itself of the burden of political responsibility, but it raises a constitutional issue. The Supreme Court holds that delegations of legislative power are subject to a doctrine of nondelegation requiring Congress to articulate an “intelligible principle” for the administrative agency to follow in exercising the transferred legislative authority. Unfortunately, that isn’t much of a test or limitation.

Professor Hamburger argues that such delegations are flatly unconstitutional. According to Professor Hamburger, we, the people, have delegated the authority to enact laws to Congress under the Constitution; we have not authorized Congress to “subdelegate” its legislative authority. He urges the courts to revisit the impotent nondelegation doctrine. Here is a brief excerpt of his argument, from Chapter 20 (footnote omitted):

As Locke explained, “The legislative cannot transfer the power of making laws to any other hands. For it being a delegated power from the people, they, who have it, cannot pass it to others.” This followed not simply from their constitution, but from the nature of constitutions:

The people alone can appoint the form of the commonwealth, which is by constituting the legislative, and appointing in whose hands that shall be. And when the people have said, We will submit to rules, and be governed by laws made by such men, and in such forms, no body else can say other men shall make laws for them; nor can the people be bound by any laws, but such as are enacted by those whom they have chosen, and authorized to make laws for them. The power of the legislative[,] being derived from the people by a positive voluntary grant and institution, can be no other than what that positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands.

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[W]hen granting legislative power, the Constitution speaks of all legislative powers. It recites: “All legislative Powers herein granted shall be vested in a Congress of the United States.” The Constitution authorizes no inferior legislative bodies, and the Constitution therefore can be explicit that Congress enjoys all legislative powers. Thus, for example, although the president can subdelegate some executive power to his subordinates, Congress cannot subdelegate any of its legislative powers, for they all rest in Congress.

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