When Abraham Lincoln met Harriet Beecher Stowe in 1862, he acknowledged the impact of her novel, Uncle Tom's Cabin—or so at least the story goes. Legend has it that he greeted Stowe with the words, "So you're the little woman who wrote the book that started this great war."
Divided though we are these days, it's hard to believe that America in 2017 is as close to civil war as the nation was when Uncle Tom's Cabin was published in 1852. Still, if open conflict between left and right ever does break out, one of the people nominated for the role of Stowe will be a mild and thoughtful Columbia University law professor named Philip Hamburger. The Administrative Threat, Hamburger’s latest book, is the most dangerous text published in America in decades—the Uncle Tom’s Cabin of our time.
Perhaps I’m exaggerating. Probably I'm exaggerating. A small study of law, The Administrative Threat obviously lacks the raw emotional appeal of a novel, and it claims for itself no high historical place. But someone needs to warn the other segments of American political life that Philip Hamburger has provided the populist right with something that had been missing: a theoretical rationale for the national irritation with the current regime of administrative law. Where before there was only a kind of wordless rage, there exists now an actual articulation: a serious and convincing constitutional explanation of what's wrong with the way the nation is being run.
The Administrative Threat is a synopsis and application of the thesis that Hamburger began with his 2014 work, Is Administrative Law Unlawful? No one doubts that the administrative agencies of government have come to occupy an enormous place in American public life. From the Internal Revenue Service to the Environmental Protection Agency, the Department of Education to the Bureau of Land Management, these agencies are the places where the actual governance of the nation occurs.
Thus, through their rule-making powers, the administrative agencies manage and direct both the national economy and national manners with a particularity unrivaled and unexpected. Through their administrative hearings, they exercise judicial functions outside the judiciary: deciding cases, interpreting laws, and imposing penalties. And through their enforcement arms, they can arrest and charge those who violate their rules.
This kind of authority, Hamburger notes, "evades many of the Constitution's procedures, including both its legislative and judicial processes. Administrative power thereby sidesteps most of the Constitution's procedural freedoms. Administrative power is thus all about the evasion of governance through law." We have "a state within a state," a shadow government that is "the dominant reality of American governance." And this administrative state is now the "preeminent threat to civil liberties."
What Hamburger calls the "knowledge class"—the managerial class, particularly in the form of what's often dubbed these days the Deep State of government workers—has long fascinated sociologists and political theorists. From Max Weber's seminal work on bureaucracy in his 1922 Economy and Society through to James Burnham’s 1941 The Managerial Revolution, we have had serious studies of both how regulatory officials form a subculture and how their work influences the larger culture. In 1957, the Yugoslavian communist Milovan Djilas published The New Class, a profoundly influential analysis of the ways in which a self-interested socio-political class emerges among those who administer the rules of production.
Vestiges of this sociologically tinged analysis (particularly as it passed through the works of Christopher Lasch in the 1990s) could be heard in both conservative and populist complaints about "elites" in the 2016 election. But however convincing the sociology, American unhappiness with the massive government of bureaucrats lacked a strong appeal to American tradition. If even Ronald Reagan had made his peace with the New Deal and its jumbled alphabet of governmental agencies, then what exactly was un-American about, say, the odd role played in land management by the Army Corps of Engineers?
Hamburger knows the old sociological line of analysis. As he looks at the history of governmental growth, he discovers a relation between a mistrust of democracy and the transfer of power to a permanent bureaucracy. Each expansion of the voting franchise—to include former slaves, millions of new immigrants, and women—was joined within a few years by the creation of a new system of government managers.
In other words, bureaucracy expanded at least in part to clean up the mess of democracy. From Woodrow Wilson to Barack Obama, each time new classes of non-elites were allowed into politics, the government responded by removing something from the democratic political process of congressional votes and judicial oversight. Each new grant of voting power was greeted by a reduction of the importance of voting, with new authority given over to the elite bureaucratic knowledge class—who can be counted on, Hamburger notes, to exercise that power "in more genteel ways."
What The Administrative Threat adds to this well-worn sociological account is a precise historical connection to the writing of the Constitution. The Founders, Hamburger points out, had in mind the Star Chamber. Although it started as an extra-legal expedient in Great Britain—a court that could move quickly and act against powerful landowners—the Star Chamber had become an instrument of tyranny by the late 1500s. The civil battles of the 1600s derived in good part from the unconstrained power of the extra-legal officials, who operated as instruments of the king outside the oversight of parliament.
Learning from that British history, the Founders were determined that the absolute power held by the Star Chamber never be allowed again. The executive branch of government must be constrained, in their view, and they wrote the Constitution with the dangers of executive power clearly in mind.
This element of the Constitution is what the modern administrative state ignores. We have now a "revival of absolute power," in exactly a way that the Founders would have understood: a use of power that stands outside the constraints of the separation of the legislative, executive, and judicial branches laid out in the Constitution. As Hamburger writes, "Eighteenth-century Americans assumed that a rule could have the obligation of law only if it came from the constitutionally established legislature elected by the people." Twenty-first-century Americans are governed instead by unelected officials who do their own rule-making, their own enforcing, and their own judging.
It's with this move that Hamburger comes into his own. For the first time since the 1930s, we have a clear and coherent account of the essential unconstitutionality of administrative government.
One could argue, as people do, that the delegation of power to permanent agencies is simply necessary for anything to get done, given the complexities of modern times and the messiness of trying to run a nation of 320 million people. But that's a cold and cynical line to take, lacking the emotional appeal of a reference to the Constitution that the nation still generally believes the government follows. And, it has to be said, The Administrative Threat proves utterly convincing at the central analysis it undertakes: The current system of administrative law is unlawful, and a clear reading of the Constitution would not allow our modern bureaucracy to stand.
Philip Hamburger has some suggestions for easing the effect of the administrative state. The courts should immediately abandon the Chevron deference they pay to the ways agencies interpret their own rules, for example, and the parallel judicial system of administrative-law judges should be abolished. But the force of The Administrative Threat comes not from these minor cures. It comes, instead, from the shattering critique of the essential unconstitutionality of extra-legal administration.
Risky stuff, to provide the theoretical justification for populist anger at government. The Administrative Threat is a persuasive book and a fascinating book. It’s also a dangerous book—as dangerous as we've had in a good, long while.
Published under: Book reviews