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CHAPTER 1
The Debate
The debate over the lawfulness of administrative law is complex, but it consists largely of constitutional critiques on one side and justifications for extralegal power on the other. Both positions are presented with much acumen. The constitutional critiques, however, do not go far enough, and the constitutional justifications concede too much.
Critiques
The scholarship questioning the constitutionality of administrative law, although not extensive, provides a valuable foundation for this book's arguments. The writing of distinguished scholars (including Larry Alexander, Bradford Clark, Ken Kersch, Theodore Lowi, Ronald Pestritto, Saikrishna Prakash, Michael Rappaport, Martin Redish, David Schoenbrod, and especially Gary Lawson) shows that administrative law departs from a wide range of constitutional principles or provisions. Their scholarship reveals, for example, that administrative law violates the separation of powers, bicameralism, due process, judicial independence, and jury rights.
On the whole, however, the legal critique of administrative law focuses on the flat question of unconstitutionality, and as already suggested, this is not enough. Such an approach reduces administrative law to an issue of law divorced from the underlying historical experience and thus separated from empirical evidence about the dangers. Indeed, the flat constitutional inquiry often abbreviates the problem to a series of discrete violations of particular constitutional requirements.
When examined in this decontextualized and disjointed manner, the various constitutional violations can easily be explained away one by one, without recognition of the broader and profoundly dangerous phenomenon of which they are a part. For example, although administrative lawmaking violates the separation of powers, the violation can be dismissed on the ground that it departs only from the formal allocation of authority within the government—as if there were no substantive danger of consolidated governance outside the law. Similarly, the administrative denial of procedural rights can be brushed aside with the equivocation that it is all the process that is due—as if the due process of law could really be reduced to the due process of administrative power; as if there were no systematic evasion of procedural rights; as if there were no problem of extralegal judicial power.
The narrow concentration on the flat constitutional questions thus has profound costs. It fails to recognize the underlying dangers and thereby leaves the constitutional critique looking merely formalistic. To avoid this weakness, this book digs into the history.
Some hints of the history and its legal implications appear in earlier scholarship. Charles Reich (although more concerned with benefits than binding edicts) notes the danger of "special laws and special tribunals, outside the ordinary structure of government." Gary Lawson observes: "The modern administrative state is not merely unconstitutional; it is anti-constitutional. The Constitution was designed specifically to prevent the emergence of the kinds of institutions that characterize the modern administrative state." These brief observations are very apt but are only laconic intimations of the constitutional problem and its underlying history.
Once the history and the depth of the constitutional problem are understood, however, it becomes difficult to miss what is at stake. It will be seen that administrative law is the contemporary expression of the old tendency toward absolute power—toward consolidated power outside and above the law. On this foundation, the familiar constitutional violations take on unexpected significance, and yet other constitutional violations, of equal import, become painfully apparent.
Justifications
Administrative law has been defended for over a hundred years by commentators whose sophistication lends much credibility to their arguments. Ultimately, however, the leading arguments for the constitutionality of administrative law are more revealing than intended, for they tend to acknowledge—sometimes glancingly, sometimes directly—that administrative law creates extralegal and even absolute power. As a result, what is said on behalf of administrative law and its lawfulness is actually a good starting point for understanding why it is unlawful.
The most common defense of administrative law is delegation—that Congress has delegated legislative power to the executive. It will be seen that this defense runs into some serious difficulties, but what matters at this introductory stage is not the weakness of the delegation defense, but rather merely what the defense concedes about the extralegal character of administrative law: It acknowledges that administrative law creates an alternative structure of legislation and adjudication—a structure outside the law and adjudication, as well as the institutions and processes, established by the Constitution.
Another justification of the constitutionality of administrative law is that it leaves in place functional equivalents of the limits established by the Constitution. For example, it is said that the Constitution does not require a fixed allocation or separation of powers among the branches of government, but rather merely a functional separation and balance of power among them. From this point of view, administrative law still leaves a balance of power, albeit not the balance established by the Constitution. Similarly, although administrative adjudication does not offer the same procedures as judicial adjudication, it is defended on the ground that due process is a functional question and that "what procedures due process may require under any given set of circumstances" will vary according to the "nature of the government function involved." The very emphasis on functional equivalents, however, practically concedes that the government is exerting power outside its constitutionally authorized powers. Once again, therefore, the justification itself acknowledges the problem.
Scholars often bluntly admit that administrative law constitutes a fourth type of power—the suggestion being that it is new and that it therefore could not have been anticipated by the Constitution. The notion of a fourth type of power, however, is not so novel. It will be seen that administrative power existed in the eighteenth and nineteenth centuries on the Continent, where the people had never successfully repudiated extralegal governance. Some Continental writers accordingly recognized that, in addition to the three conventional powers of government, there might also be a fourth, "administrative power." Of course, none of this recommended such a power to Americans, and it therefore is unsurprising that when the U.S. Constitution authorized legislative, executive, and judicial powers, it said nothing about administrative power. Nowadays, however, some American scholars defend administrative law as a fourth branch of government, and this is significant, for it openly recognizes administrative power as a power distinct from those granted by the Constitution.
In addition, administrative law is sometimes explained as a necessary evolution in response to the sociological complexities of modern life. This defense points to the supposedly late development of administrative law—finding beginnings in the nineteenth century, growth in the early twentieth, and maturation in the New Deal. The point is not merely that administrative law could not originally have been anticipated by the Constitution, but also that it is a sociological necessity—an almost inevitable response to modern social and economic development. It is an interesting theory, to which this book will return in part V, but what matters for now is that, in focusing on the necessity of a power not anticipated by the Constitution, this justification concedes as much as it claims.
Some defenses of administrative law make the necessity argument even more bluntly, and they thereby even more clearly embrace absolute power. Although most acutely felt in emergencies, necessity also can arise in quotidian circumstances. Either way, it traditionally has been understood to transcend all law, and necessity therefore has long been the intellectual foundation for absolute power—the power exercised outside and above the law. Recognizing the force of the principle, defenders of administrative law often rely on it, and they occasionally even emphasize its lawlessness. James Landis, for example, in a widely quoted passage, argues that administrative power is required by the "exigencies of governance" and that it therefore is not a matter of great concern if administrative law "does violence to the traditional tripartite theory of governmental organization."
Most scholars, of course, prefer to leave ambiguous whether the necessity bends or breaks the Constitution. From such a point of view, it is not very pressing to inquire whether the exigency arises merely within the law, as the Constitution's measure of what is lawful, or whether it rises above the law and thus prevails regardless of what the Constitution requires. This sort of ambiguity is not coincidental, for when arguing in a system of law for a power outside the law, it is difficult to rely entirely on either the law or matters beyond the law. It therefore makes sense to hedge one's bets—to suggest that the law itself recognizes the necessity of the extralegal power and that, in any case, the necessity requires the law to do so.
Strikingly, however, not merely Landis, but many administrative law scholars have been quite candid that administrative power, of necessity, goes outside and perhaps even above the law. In England, in the early twentieth century, Cecil Carr forthrightly defended administrative law as a revival of the prerogative, including the absolute prerogative. In America, John Dickinson made the observation adopted as one of the epigraphs to this book. Yet other twentieth-century examples will be discussed in part V. Even today some scholars discuss administrative law in unabashedly absolutist terms, as when Adrian Vermeule writes about "our Schmittian administrative law," which "inevitably" contains "black holes" and "grey holes"—"law-free zones" and standards so flexible as to allow convenient shifts toward a darker type of power.
In such ways, the defense of administrative law repeatedly concedes that this sort of power establishes an extralegal mode of governance—one very different from regular law and adjudication. The defense of administrative law, indeed, often turns to claims of necessity and thereby relies on the intellectual foundations of absolutism. Nor should any of this be a surprise. Administrative power runs outside the law and adjudication established by the Constitution, and ideas about extralegal or absolute power are therefore essential for understanding it.
CHAPTER 2
Conceptual Framework
This chapter introduces the concepts that frame this book's arguments. The rule of law, as already suggested, is an amorphous concept, and this book therefore talks more specifically about rule through and under law. From this perspective, the book argues that administrative law is a sort of extra- and supralegal power and that it thus is a type of prerogative and even absolute power. These conclusions may initially seem overstated. Once the underlying concepts are understood, however, their application to administrative law can begin to be recognized.
Extralegal
An initial concept requiring explanation is that of extralegal power. Governments often bind their subjects not merely through the law and the orders of the courts, but through other sorts of commands and orders. In this sense, governments sometimes exercise extralegal power.
Vocabulary
This binding extralegal power has long had its own vocabulary. Medieval commentators already described it as extralegal, but this was not their only label for it.
For example, because extralegal lawmaking power does not run through regular or ordinary law, it is irregular or extraordinary. And because it is exercised through edicts distinct from the law, it is a power independent or apart from the law—or, as commonly put in this book, a power outside the law.
The same vocabulary can be applied to the extralegal exercise of judicial power. In support of their extralegal legislation, governments also have attempted to bind their subjects through extralegal adjudications, and this, too, is an irregular or extraordinary exercise of power. Not being done through the judgments of the courts, but through other judgments, it is again a power outside the law.
Historically, these words could have layers of meaning. In some sense, for example, the law was ordinary and regular because it was the typical or normal mode of exercising power. More fundamentally, however, it was ordinary and regular because the law was understood to be the lawful mode of imposing binding duties. By the same token, extralegal power was understood to be extraordinary or irregular not merely because it was unusual, but because it was not an exercise of law. Thus, the rulers who most regularly acted through their extralegal mechanisms were those who acted most irregularly.
One way or another, the terms employed here are not new. They have been used for centuries, and they remain valuable.
Extralegal
Exactly what makes a power extralegal may not be immediately obvious. Some basic distinctions, however, both medieval and modern, can clarify the problem.
Medieval kings already attempted to govern by extralegal rules and adjudications, but such modes of governance soon provoked complaint. In England, the development of Parliament sharpened the tensions between regular and irregular governance, making clear that there was a difference between government through acts of Parliament and government through other sorts of directives. Similarly, the development of the law courts clarified that there was an ordinary sort of judicial power, which was exercised by the courts and their judges, and another sort, which was done by the king's council and his other prerogative tribunals.
From this perspective, one cannot lump together all unlawful and extralegal acts. It will be seen that extralegal legislative and judicial acts are unlawful, but this does not mean that all unlawful acts are extralegal. Even regular law and adjudication can be unlawful, but only edicts that do not come through regular law and adjudication can be extralegal.
Of course, apologists for administrative law may be inclined to suggest that it is not an extralegal power, but another sort of law. Yet not everything that mimics law is really law; nor is everything that mimics a court decision the real thing. Precisely because of prior experience with prerogative power, the English constitution and especially the U.S. Constitution confined legislative and judicial powers to the constitutionally authorized paths—that is, respectively, to the acts of the legislature and of the courts. And lurking not far below was the Lockean reasoning about consent, from which it was evident that legal obligation rests on consent and that binding laws have to be made by the society's representative legislature. On these sorts of constitutional and consensual foundations, it is difficult to avoid the conclusion that administrative rule is different from rule through and under law.
Obviously, just because a power runs outside the law, rather than through it, does not mean it lacks at least a semblance of legal authorization. It will be seen that Henry VIII secured candid statutory authorization for some of his extralegal power, that the prerogative courts made strained claims of statutory authorization, and that early English kings often left it ambiguous whether they were acting under or above the law. Similarly, today, administrative law is said to have legal authorization—sometimes in clear statutory language, sometimes in strained interpretations of statutes, and sometimes in sheer ambiguity.
But quite apart from the question of legal authorization, there remains the underlying problem of extralegal power—the problem of power imposed not through the law, but through other sorts of commands. On this basis, when this book speaks of administrative law as a power outside the law—or as an extralegal, irregular, or extraordinary power—it is observing that administrative law purports to bind subjects not through the law, but through other sorts of directives.
(Continues…)
Excerpted from "Is Administrative Law Unlawful?"
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