In this fascinating article from 2014, Dr. Hamburger associates administrative law primarily with the executive power of a nation state; meaning the king or the president, for example. But while the history is informative, it doesn’t do enough to illuminate our current reality.
Since creating the Interstate Commerce Commission in 1887, Congress went on to produce a vast empire of huge bureaucracies, each of them specializing in one or another application of administrative law. Today we worry over who really controls this empire, Congress or the Executive.
Recent debate over the assassination of Qasem Soleimani is a case in point. There are those on one side who claim that Congress rightfully controls the Department of Defense. There are those on the other who claim the Executive rightfully controls it. The disagreement would be funny, were there not at the heart of it a real power struggle.
Dr. Hamburger is right. Administrative law is a monster. Once let loose, it devours everything, including Constitutional governance.
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Agree that it is fascinating. Not overly long and informative.
But let’s look at his closing statement: ” Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power or more concretely of extra-legal, supra-legal, and consolidated power. Then we at least can begin to recognize the danger.”
This is exactly what Mr. Trump is doing, claiming absolute power when it comes to his actions in Iraq. In actuality, POTUS is CINC and has specific powers to order the military to protect the country and our interests. However, Congress controls the budget and can refuse to fund military action it deems unnecessary or even illegal.
WRT the recent killing of Soleimani, if Mr. Trump had notified Congressional leadership about his intent, he may have garnered BIPARTISAN support for the action. “Chuck, Nancy, Mitch, Kevin, here’s the deal. We’ve got this really bad dude, who is responsible for a lot of death and destruction, in our sights. We can take him out without collateral damage and throw a big monkey wrench into Iran’s terroristic activities. I’m doing it, but I am letting you know the why and the how.” Something as simple as that may have garnered support for the action. But because he exercised absolute power, he finds himself being pilloried for it. And the constant changing of the post-strike narrative does not help him.
Yes, Soleimani deserved to be taken out. But ALL of our leaders should have been involved in the process. Or at least notified. Co-equal is supposed to mean working together to achieve the common goals. Both sides of the political divide are guilty of not acting in good faith with the other.
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Well, that takes care of the ends. Now let’s go for the middle.
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RE: “if Mr. Trump had notified Congressional leadership about his intent, he may have garnered BIPARTISAN support for the action.”
Do you think the order to kill Soleimani exceeded the president’s authority as CINC?
Put another way, if the president has the authority to give such an order, why does he need Congressional approval?
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I never said approval, I said support. NOT the same thing. Please reread what I posted and you will see that.
Was it a lawful order? Perhaps and he did notify them within the 48 hours required by the War Powers Act. The post strike response is the real issue. The stories have constantly changed. Congress was not given a proper briefing on the intelligence. And no one really knows now if it was legal or not.
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RE: “The post strike response is the real issue.”
If the president’s actions were legal and appropriate, then why is that?
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Because of the lying lies and the liars that tell them.
You complain and try to prove that the MSM is not to be trusted. But you give the leader of our country a pass for … EVERYTHING.
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RE: “Because of the lying lies and the liars that tell them.”
If the president’s actions were legal and appropriate, then there was nothing the lie about. And if there was nothing to lie about, then chances are there were no lies. And if there were no lies, then the liars are the ones saying there were.
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Then why the ever-shifting narrative? It is becoming harder and harder to believe anything this administration tells, we, the people.
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I will, of course, read it in it’s entirety, but I am compelled to comment within his first paragraph. It’s the old chestnut that, “Those who forget history, it is often said, are doomed to repeat it.”
As of yet, no one has presented any convincing evidence on the converse. As near as I can tell from History, we’ll repeat it anyway.
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When I was in college I took a course called “Bureaucracy, the Fourth Branch”.
Since the bureaucracy is within the realm of the Executive branch, there is a lot of power there that the founders never intended.
Congress passed laws to protect the environment, for example. This is what the people wanted and through representative legislation, policies for clean air and water as well as protecting other resources were enacted into laws.
Presidents, however, can, through appointments and XO’s, negate what Congress passed. Why? Because the laws are mere guidelines and bureaucrats are expected to promulgate the details. There is no “letter of the law” to enforce until the administration issues the specifics. Then,as has happened now and in the past, a president can appoint officials to run the agency as he sees fit. And that may include non-enforcement or even scrubbing entire requirements. Public be damned.
This is not how it should be done. The administration is legally bound to administer and enforce the laws passed in the “peoples’ house”. That is why we have vested such power in Congress not the president.
Appointments must be approved by the Senate. And if the president abuses his power or fails to administer as the law requires, the Congress can remove him. In other words, the president is subordinate to the Congress. Or, as phrased many times, a government of, by and for the people.
Unfortunately we have vested regulatory power, not just enforcement, in the presidency. We have given him power to wage war with or without Congressional approval. We have let him impose taxes in the form of tariffs under the guise of “emergency powers”. Add to this a preposterous expansion of “executive privilege” so that Congressional oversight is hampered if not impossible.
Through Congressional dereliction of Constitutional duties we have appointed a King. And with the current office holder ignoring traditions and norms that may have imposed some restraint in the past, it has become increasingly obvious that the concentration of power in one man is as dangerous as the founders feared.
The essay points that out with a bit more academic rigor, but the concerns are the same.
IMHO
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RE: “Since the bureaucracy is within the realm of the Executive branch, there is a lot of power there that the founders never intended.”
You seem to have grasped from your college course that Congress gives up some of its power when it creates bureaucracy. Yet you take the contradictory position that Congress somehow retains the power which it otherwise relinquishes.
Dr. Hamburger’s point is that Congress doesn’t give up any power at all when it creates bureaucracy. Instead, it creates a rival to both its own authority and that of the executive — the unconstitutional Fourth Branch, or administrative state.
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“You seem to have grasped from your college course that Congress gives up some of its power when it creates bureaucracy. Yet you take the contradictory position that Congress somehow retains the power which it otherwise relinquishes.”
Not at all.
Creating a bureaucracy doesn’t show a relinquishing of power. Congress should be very specific about the regulations. Probably shifting some of the scientists to work with Congress when they draft the legislation would help.
Congress always has the power to legislate. Nothing new.
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RE: “Creating a bureaucracy doesn’t show a relinquishing of power.”
That’s what I said. But you haven’t resolved the contradiction. Congress may retain its power to legislate, but it has no Constitutional authority to create a Fourth Branch of government, if Dr. Hamburger is to be believed.
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“…it has no Constitutional authority to create a Fourth Branch of government, if Dr. Hamburger is to be believed.”
No one ever said it did.
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RE: “No one ever said it did.”
You did. Twice.
First you said, “the president is subordinate to the Congress” by virtue of enforceing the laws that Congress creates. Then you suggested Congress should use its legislative authority directly, by drafting regulations (administrative law) directly, bypassing the Executive.
But if the Constitution specifically prohibits the creation and enforcement of administrative law, as the Imprimis article describes, then neither can be true.
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It just goes to show you that what I write may not come across as to what you think I wrote.
The Executive would still administer the law. Congress won’t bypass it at all. What I want is for the Congress to leave less interpretation to the Executive and be more specific in the legislation.
Example could be a law that might now say “a company can’t foul the waterways”. The better way would be to specify what can’t be dumped into the river. No reason for the Executive to guess what the people want. Congress should just tell it. Then it becomes more difficult for a president to rewrite the regs to suit his political likings or supporters. If the president wants to change the law, he can go to Congress and convince the representatives to act.
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Absolutely! Bang on! Now, let’s go kill some general, or prompt an investigation of an American citizen by a foreign investigative service so we can avoid all of that warrant and oath crap, or ban arrivals from certain countries, or ban travel to a neighboring island, or build a wall nobody wants or have funded.
Good article, but like all ideologically based wishes, it assumes some sort of… I dunno, Liberal Utopia?
The problem isn’t so much administrative law, after all, it can be expeditious and that’s why it’s needed. It’s the unfortunate lack of oversight, restraint, and/or appeal. “Handle it, handle it!”
Unlike the knee-jerk crowd, bent on, oh say, stifling Trump’s future actions with Iran (after all, when a USS sails over the horizon, even in this day of modern secure communications, that ship’s captain carries the absolute war-making power nearly equivalent to Trump’s),
I would say that what we need isn’t the elimination of administrative law, rather it’s the same sort of screening and training for our leaders as for our trusted ship captains.
At the minimum, a psychological evaluation of our executive candidates. Apparently, as proved in 2016, we cannot rely on the people’s intelligence.
On another note, I was watching the news this AM. The talking heads and “experts” were discussing “electability” of the Democratic candidates. I came to the conclusion that the media uses this mythical quality, which they assign to the candidates, to avoid discussing the very real quality, “collective stupidity,” that they are restrained by their paying sponsors from assigning to the electorate.
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