Is Administrative Law Unlawful ?

English: Detail of Preamble to Constitution of...

English: Detail of Preamble to Constitution of the United States Polski: Fragment preambuły Konstytucji Stanów Zjednoczonych (Photo credit: Wikipedia)

From the Constitution of the United States:

ARTICLE I, SECTION 1.

All legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.


 

When we talk of Administrative law, we are speaking of an extra-legal add on, which has very little (if any) base in the Constitution. If you are not familiar with it, here is a link to an introductory lecture POL611 . That’s how it is conceptualized these days. But is it constitutional at all? That’s different story. I’ve spoken of this several times lately once at Jess’ Watchtower, and on this site here, and here. It’s an important concept. Much of the content here is taken from a series on The Power Line Blog here, here, here, and here. Don’t panic, they’re quite short posts! This is all both there, and here based on a book, Is Administrative Law Unlawful, by Philip Hamburger, who is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He received his B.A. from Princeton University and his J.D. from Yale Law School.

Here is a not so short video presentation of what he is saying that he gave at Hillsdale College, which was published on May 14 of this year. It is eminently worth your time.

If you remember I commented in the article A Most Conservative Revolution that we don’t pay enough attention to what I call “the Bill of Particulars” in the middle of the document. The reason I say that is in this article. Everyone of them is protesting the arbitrary power of the Crown acting with or without Parliament (which did not represent the British in North America.

Here are a couple which might sound familiar to us today:

  • He has erected a multitude of New Offices, and sent hither swarms of Officers to harrass our people, and eat out their substance.
  • He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands. (Although this one you might want to read in the negative.)

In any event, I hope you see my point here.

The point is that the Constitution, which is written in very clear English, and means what it says, “All legislative powers herein granted shall be vested in a Congress of the United States.” It does not say that Congress may delegate that power to the executive, or his subordinates. In fact, John Locke said this.

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.

In short administrative law = the King’s prerogative which leads directly to the Star Chamber and High Commission and ≠ the Rule of Law, more properly described as “The rule through and under the law” which is the traditional Anglo-American definition of The Common Law.

Undoubtedly we will be returning to this subject soon because this is important. In fact this is the battle that led to Runnymede, to The English Civil War, to the Glorious Revolution, to the American Revolution, an in part to the American Civil War as well.

The fundamental article of my political creed is that despotism, or unlimited sovereignty, or absolute power, is the same in a majority of a popular assembly, an aristocratical council, an oligarchical junto, and a single emperor. Equally arbitrary, cruel, bloody, and in every respect diabolical.

John Adams

 

Advertisements

About NEO
Lineman, Electrician, Industrial Control technician, Staking Engineer, Inspector, Quality Assurance Manager, Chief Operations Officer

3 Responses to Is Administrative Law Unlawful ?

  1. the unit says:

    I know this been up all day. I gonna consider it NEO’s thought provoking weekend end dump. Been dealing with doc’s appointment and labs from early morn ’til afternoon so haven’t been to the here, here, and here. Sort of exhausted through the afternoon. First impression is I reject arbitrary rulings from a despotic ruler, a puppet as to things leading to world despotism.
    Plan to review and study tomorrow. Scarlett O’Hara like. 🙂

    Like

    • NEO says:

      It is pretty heavy, Unit. tnd to go like that when your elementary explanation if a 600 level college lecture. But he’s pretty clear in the video, and I’m going to have more to say about it in coming days but, I’m going to try not to overload as well. 🙂

      And I concur with your first impression, as did the founders. 🙂

      Like

  2. Pingback: You cannot rewrite laws to achieve your political agenda | nebraskaenergyobserver

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s