Power play.

• Author: Hamburger, Philip
• Position: American Thought - Administrative power

"Those who forget history ... are doomed to repeat it, and this is what has happened in the U.S. with the rise of administrative law--or, more accurately, administrative power."

THERE ARE MANY complaints about administrative law--including that it is arbitrary, a burden on the economy, and an intrusion on freedom. The question I will address here is whether administrative law is unlawful, and I will focus on constitutional history. Those who forget history, it often is said, are doomed to repeat it, and this is what has happened in the U.S. with the rise of administrative law--or, more accurately, administrative power.

Administrative law commonly is defended as a new sort of power, a product of the 19th and 20th centuries that developed to deal with the problems of modern society in all of its complexity. From this perspective, the framers of the Constitution could not have anticipated it and the Constitution could not have barred it. What I will suggest, in contrast, is that administrative power actually is very old. It revives what used to be called prerogative or absolute power, and it thus is something that the Constitution centrally prohibited.

First, though, what exactly do I mean by administrative law or administrative power? Put simply, administrative acts are binding or constraining edicts that come, not through law, but through other mechanisms or pathways. For instance, when an Executive agency issues a rule constraining Americans--barring an activity that results in pollution, for instance, or restricting how citizens can use their land--it is an attempt to exercise binding legislative power not through an act of Congress, but through an administrative edict. Similarly, when an Executive agency adjudicates a violation of one of these edicts--in order to impose a fine or some other penalty--it is an attempt to exercise binding judicial power not through a judicial act, but again through an administrative act.

In a way, we can think of administrative law as a form of off-road driving. The Constitution offers two avenues of binding power--acts of Congress and acts of the courts. Administrative acts by Executive agencies are a way of driving off-road, exercising power through other pathways. For those in the driver's seat, this can be quite exhilarating. For the rest of us, it is a little unnerving.

The Constitution authorizes three types of power, as we all learned in school--Legislative power is located in Congress, Executive power is located in the president and his subordinates, and Judicial power is located in the courts. How does administrative power fit into that arrangement?

The conventional answer to this question is based on the claim of the modernity of administrative law. Administrative law, this argument usually goes, began in 1887 when Congress created the Interstate Commerce Commission, and it expanded decade by decade as Congress created more such agencies. A variant of this account suggests that administrative law actually is a little bit older--that it began to develop in the early practices of the Federal government of the U.S. However, whether it began in the 1790s or 1880s, administrative law, according to...