Power Line is running a series of excerpts from Philip Hamburger's book Is Administrative Law Unlawful? . Here is part 1, part 2 and part 3.
RELATED (via Power Line): Video of Professor Hamburger: Administrative Edicts or the Rule of Law: How Shall We Be Governed?
UPDATE: Power Line also has this Q&A with Professor Hamburger. All the responses are interesting but I like this one in particular:
Power Line: Does English legal history provide an analogue or antecedent for administrative law? Is this a case of eternal recurrence?
Philip Hamburger: Sadly, administrative power is not just a modern development. Instead, it appears to be a recurring phenomenon–a part of the long standing tension between absolute power and government through law. Repeatedly over the past thousand years, rulers have attempted to exercise binding power, legislative and judicial, not merely in a regular manner through the law and the courts of law, but also irregularly, through prerogative or administrative commands.
Magna Charta already took a stand against this sort of power. The 1354 and 1368 due process statutes even more emphatically barred it. But English kings persisted in exercising extralegal power until, in the seventeenth century, the English adopted constitutional ideas to put an end to this danger. Similarly, American constitutions barred extralegal power. Nonetheless, it has come to back to life.
The tendency toward extralegal power thus seems to arise not from the nature of modern society, but from the nature of human beings, who always seek more power, if not through law, then outside the law.
Posted at 6:55 AM