Early prerogative and administrative power: a response to Paul Craig.

• Author: Hamburger, Philip
• Position: University of Oxford Legal Research Series, Paper No. 44, 2016 - Symposium: A Future Without the Administrative State? Exploring the Administrative State

INTRODUCTION

What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. (1) In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past--especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.

In opposition to my claims about American law, Paul Craig lobs three critiques from across the pond. (2) His two main arguments concern the English history of prerogative and administrative power--though in addition, he makes a conceptual point about the distinction between legislative and judicial power. It will be seen that Craig's account repeatedly misunderstands the history and even the conceptual framework.

Nonetheless, his article usefully draws attention to some important issues. This is therefore a good occasion not simply to respond, but more broadly to explore three important questions about early prerogative and administrative power. First, how can one distinguish absolute prerogative power and administrative power in seventeenth- and eighteenth-century England? Second, how did the English resolve the tensions between their inherited types of administrative power and their constitutional principles? Third, how did Americans resolve the tensions between their inherited types of administrative power and their constitutional principles?

The initial question matters because my argument against administrative power assumes a link between administrative power and the absolute prerogative--in that both were types of extralegal power. The other questions are significant because my argument assumes that the English and Americans could develop constitutional ideals against extralegal power even while retaining some local administrative instances of it. This Article is an opportunity to elaborate these points.

Organization.--This Article is organized around Craig's three criticisms. (I) In challenging my thesis that federal administrative power revives a version of prerogative power, he argues that these types of power are crucially different because the prerogative was independent of statute. But his statute-free vision of prerogative power is grossly incorrect, and it therefore cannot distinguish prerogative and administrative power. His argument also is unresponsive. My thesis is that administrative power revives the extralegal character of the absolute prerogative--in other words, that both sorts of power have bound subjects through extralegal edicts--and this extralegal power remains a problem regardless of statutory authorization and limits.

(II) Against my thesis that the English constitution developed in response to extralegal power, Craig points to the existence of seventeenth- and eighteenth-century English "administrative" power. My book also points to this power. Craig, however, relies on its mere existence to suggest that the English constitution did not repudiate extralegal power. This is utterly mistaken. The English constitution clearly included general ideals against extralegal power, even though (as my book observes) the English did not apply them systematically--especially not to localized administrative power. And although the English thus had to live with conflicts between constitutional ideals and localized practices, Americans in the U.S. Constitution largely avoided such tensions.

(III) Against my argument about extralegal power, Craig notes that the distinction between legislative and judicial power can break down at the edges. His observation is not unreasonable. But it is irrelevant, as my argument about extralegal power does not depend on this distinction.

Craig's critiques are thus simply mistaken, and in their place, very different conclusions emerge. In both England and America, many constitutional principles developed in response to the danger of extralegal power, as exemplified by the absolute prerogative. Although the English did not directly apply these principles to their inherited and mostly localized administrative power, Americans in the U.S. Constitution pursued their constitutional principles more systematically.

Broader Significance.--All of this is important because the English history is a foundation for understanding American constitutions, not least the U.S. Constitution. In much contemporary American scholarship, it is said that administrative power is a modern development, which was unknown to early Americans, and therefore could not have been barred by American constitutions. (3) Early Americans, however, were very interested in the English experience with the absolute prerogative. The English Crown had used its absolute prerogative to bind subjects extralegally. By this I do not mean that the Crown acted unlawfully or without legal authorization. Rather, the point is that, with its absolute prerogative, the Crown imposed legal obligation not merely through the acts of the legislature and the courts, but through other edicts. (4) Being aware of this threat and the English constitutional responses to it, Americans drafted their constitutions to prevent the recurrence of extralegal power, and they did this most systematically in the U.S. Constitution.

Of course, just because part of the royal prerogative bound subjects extralegally does not mean that all prerogative power was condemned as unconstitutional. Many parts of the prerogative, such as the appointment of officers and the pardoning of offenders, did not impose legal obligation and thus tended to be considered, on both sides of the Atlantic, relatively unproblematic aspects of executive power. (5) The extralegal aspects of the prerogative, however, could be distinguished from executive power and provoked profound constitutional objections.

Not merely a matter of "originalism" or any other mode of interpretation, the point is that extralegal power was one of the central dangers that the U.S. Constitution was designed to defeat. Extralegal power, most notorious from the English absolute prerogative, was a key target of the Constitution, and until one recognizes this, one cannot understand the Constitution. More broadly, once one recognizes this history, one can begin to reconsider what administrative power really is. Rather than a uniquely modern approach to modern circumstances, administrative power is merely the most recent manifestation of the recurring danger of extralegal power--the danger that government will be tempted to evade ruling through the law and instead rule through other mechanisms.

Postscript.--Last but not least, this Article ends with a Postscript. Craig already has responded to this Article, and the Postscript observes how he thereby digs himself in even deeper.

1. PREROGATIVE POWER

   In response to my book's argument that administrative power revives prerogative power, Craig repeatedly says that my argument "elides" prerogative and administrative power, and that this "elision" does "not represent the legal or constitutional reality in the seventeenth century or thereafter." (6) Of course, as Craig understands, my book does not confuse the two types of power, but rather argues that the extralegal character of the absolute prerogative has been revived by contemporary administrative power. (7) His claim of elision therefore argues that the two types of power were crucially different, and he supports this with an astonishing claim about prerogative power. (8) He says that prerogative was "a species of executive power that exists independent of statute" and that its "existence and extent" were determined by the courts, in contrast to administrative power, which was authorized and limited by statute. (9)

   To be sure, some of the prerogative existed independent of statute, and this independent aspect of the prerogative has been much romanticized. Much of the prerogative, however, depended on statutory authorization, and much of it was limited by statute. Accordingly, Craig's generalization that the prerogative was unauthorized and unlimited by statute is nonsense, and it cannot distinguish prerogative and administrative power.

   1. Prerogative Independent of Statute?

      Craig's claim of a statute-free prerogative is simply wrong as a matter of history. Of course, the king seemed to hold some of his prerogatives independently of any statute. But was this generally true?

      The monarch pursued his prerogative most systematically in his prerogative courts, notably the Star Chamber and the High Commission, both of which acted at least partly on statutory authority. The Star Chamber's jurisdiction to try offenders extended only to misdemeanors, and a portion of this jurisdiction was authorized by the 1487 statute entitled: An Act Giving the Court of Starchamber Authority to Punish Divers Misdemeanors. (10) As for the High Commission, it rested on authorization in the 1559 Act of Uniformity. (11) It therefore is simply incorrect to generalize that the king's prerogative was "independent" in the sense that it was unauthorized by statute.

      Statutes, moreover, limited much of the king's prerogative power. Most basically, the statutes authorizing the king's leading prerogative tribunals had limiting implications. The proper interpretation of the Act of Uniformity was therefore a source of continuing controversy for the High Commission. (12) More narrowly, although the pardon power was not authorized by statute, it repeatedly was limited by statute, and this remained a reality notwithstanding that, until the end of the seventeenth century, kings evaded these statutes with the dispensing power. (13)

      Some combinations of authorization and limits were especially dramatic. The 1539 Act of Proclamations, for example...