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Tuesday, September 30, 2014

The History and Danger of Administrative Law

There are many complaints about administrative law—including that it is arbitrary, that it is a burden on the economy, and that it is 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 is often said, are doomed to repeat it. And this is what has happened in the United States with the rise of administrative law—or, more accurately, administrative power.

Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all 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 is actually very old. It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.

But first, 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 example, 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’s a little unnerving.

The Constitution authorizes three types of power, as we all learned in school—the legislative power is located in Congress, executive power is located in the president and his subordinates, and the 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 is actually a little bit older—that it began to develop in the early practices of the federal government of the United States. But whether it began in the 1790s or in the 1880s, administrative law according to this account is a post-1789 development and—this is the key point—it arose as a pragmatic and necessary response to new and complex practical problems in American life. The pragmatic and necessitous character of this development is almost a mantra—and of course if looked at that way, opposition to administrative law is anti-modern and quixotic.

But there are problems with this conventional history of administrative law. Rather than being a modern, post-constitutional American development, I argue that the rise of administrative law is essentially a re-emergence of the absolute power practiced by pre-modern kings. Rather than a modern necessity, it is a latter-day version of a recurring threat—a threat inherent in human nature and in the temptations of power.

The Prerogative Power of Kings

The constitutional history of the past thousand years in common law countries records the repeated ebb and flow of absolutism on the one side and law on the other. English kings were widely expected to rule through law. They had Parliament for making law and courts of law for adjudicating cases, and they were expected to govern through the acts of these bodies. But kings were discontent with governing through the law and often acted on their own. The personal power that kings exercised when evading the law was called prerogative power.

Whereas ordinarily kings bound their subjects through statutes passed by Parliament, when exercising prerogative power they bound subjects through proclamations or decrees—or what we today call rules or regulations. Whereas ordinarily kings would repeal old statutes by obtaining new statutes, when exercising prerogative power they issued dispensations and suspensions—or what we today call waivers. Whereas ordinarily kings enforced the law through the courts of law, when exercising prerogative power they enforced their commands through their prerogative courts—courts such as the King’s Council, the Star Chamber, and the High Commission—or what we today call administrative courts. Ordinarily, English judges resolved legal disputes in accordance with their independent judgment regarding the law. But when kings exercised prerogative power, they expected deference from judges, both to their own decrees and to the holdings and interpretations of their extra-legal prerogative courts.

Although England did not have a full separation of powers of the sort written into the American Constitution, it did have a basic division of powers. Parliament had the power to make laws, the law courts had the power to adjudicate, and the king had the power to exercise force. But when kings acted through prerogative power, they or their prerogative courts exercised all government powers, overriding these divisions. For example, the Star Chamber could make regulations, as well as prosecute and adjudicate infractions. And defenders of this sort of prerogative power were not squeamish about describing it as absolute power. Absolutism was their justification.

Conceptually, there were three central elements of this absolutism: extra-legal power, supra-legal power, and the consolidation of power. It was extra-legal or outside the law in the sense that it bound the public not through laws or statutes, but through other means. It was supra-legal or above the law in the sense that kings expected judges to defer to it—notwithstanding their duty to exercise their own independent judgment. And it was consolidated in the sense that it united all government powers—legislative, executive, and judicial—in the king or in his prerogative courts. And underlying these three central elements was the usual conceptual justification for absolute power: necessity. Necessity, it was said, was not bound by law.

These claims on behalf of absolutism, of course, did not go unchallenged. When King John called Englishmen to account extralegally in his Council, England’s barons demanded in Magna Carta in 1215 that no freeman shall be taken or imprisoned or even summoned except through the mechanisms of law. When 14th century English kings questioned men in the king’s Council, Parliament in 1354 and 1368 enacted due process statutes. When King James I attempted to make law through proclamations, judges responded in 1610 with an opinion that royal proclamations were unlawful and void. When James subsequently demanded judicial deference to prerogative interpretations of statutes, the judges refused. Indeed, in 1641 Parliament abolished the Star Chamber and the High Commission, the bodies then engaging in extra-legal lawmaking and adjudication. And most profoundly, English constitutional law began to develop—and it made clear that there could be no extra-legal, supra-legal, or consolidated power.

The Rise of Absolutism in America

The United States Constitution echoes this. Early Americans were very familiar with absolute power. They feared this extra-legal, supra-legal, and consolidated power because they knew from English history that such power could evade the law and override all legal rights. It is no surprise, then, that the United States Constitution was framed to bar this sort of power. To be precise, Americans established the Constitution to be the source of all government power and to bar any absolute power. Nonetheless, absolute power has come back to life in common law nations, including America.

After absolute power was defeated in England and America, it circled back from the continent through Germany, and especially through Prussia. There, what once had been the personal prerogative power of kings became the bureaucratic administrative power of the states. The Prussians were the leaders of this development in the 17th and 18th centuries. In the 19th century they became the primary theorists of administrative power, and many of them celebrated its evasion of constitutional law and constitutional rights.

This German theory would become the intellectual source of American administrative law. Thousands upon thousands of Americans studied administrative power in Germany, and what they learned there about administrative power became standard fare in American universities. At the same time, in the political sphere, American Progressives were becoming increasingly discontent with elected legislatures, and they increasingly embraced German theories of administration and defended the imposition of administrative law in America in terms of pragmatism and necessity.

The Progressives, moreover, understood what they were doing. For example, in 1927, a leading Progressive theorist openly said that the question of whether an American administrative officer could issue regulations was similar to the question of whether pre-modern English kings could issue binding proclamations. By the 1920s, however, Progressives increasingly were silent about the continuity between absolute power and modern administrative power, as this undermined their claims about its modernity and lawfulness.

In this way, over the past 120 years, Americans have reestablished the very sort of power that the Constitution most centrally forbade. Administrative law is extra-legal in that it binds Americans not through law but through other mechanisms—not through statutes but through regulations—and not through the decisions of courts but through other adjudications. It is supra-legal in that it requires judges to put aside their independent judgment and defer to administrative power as if it were above the law—which our judges do far more systematically than even the worst of 17th century English judges. And it is consolidated in that it combines the three powers of government—legislative, executive, and judicial—in administrative agencies.

Let me close by addressing just two of many constitutional problems illuminated by the re-emergence of absolutism in the form of administrative power: delegation and procedural rights.

One standard defense of administrative power is that Congress uses statutes to delegate its lawmaking power to administrative agencies. But this is a poor defense. The delegation of lawmaking has long been a familiar feature of absolute power. When kings exercised extra-legal power, they usually had at least some delegated authority from Parliament. Henry VIII, for example, issued binding proclamations under an authorizing statute called the Act of Proclamations. His binding proclamations were nonetheless understood to be exercises of absolute power. And in the 18th century the Act of Proclamations was condemned as unconstitutional.

Against this background, the United States Constitution expressly bars the delegation of legislative power. This may sound odd, given that the opposite is so commonly asserted by scholars and so routinely accepted by the courts. But read the Constitution. The Constitution’s very first substantive words are, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The word “all” was not placed there by accident. The Framers understood that delegation had been a problem in English constitutional history, and the word “all” was placed there precisely to bar it.

As for procedural rights, the history is even more illuminating. Administrative adjudication evades almost all of the procedural rights guaranteed under the Constitution. It subjects Americans to adjudication without real judges, without juries, without grand juries, without full protection against self-incrimination, and so forth. Like the old prerogative courts, administrative courts substitute inquisitorial process for the due process of law—and that’s not just an abstract accusation; much early administrative procedure appears to have been modelled on civilian-derived inquisitorial process. Administrative adjudication thus becomes an open avenue for evasion of the Bill of Rights.

The standard justification for the administrative evasion of procedural rights is that they apply centrally to the regular courts, but not entirely to administrative adjudication. But the history shows that procedural rights developed primarily to bar prerogative or administrative proceedings, not to regulate what the government does in regular courts of law. As I already mentioned, the principle of due process developed as early as the 14th century, when Parliament used it to prevent the exercise of extra-legal power by the King’s Council. It then became a constitutional principle in the 17th century in opposition to the prerogative courts. Similarly, jury rights developed partly in opposition to administrative proceedings, and thus some of the earliest constitutional cases in America held administrative proceedings unconstitutional for depriving defendants of a jury trial.

* * *

In sum, the conventional understanding of administrative law is utterly mistaken. It is wrong on the history and oblivious to the danger. That danger is absolutism: extra-legal, supra-legal, and consolidated power. And the danger matters because administrative power revives this absolutism. The Constitution carefully barred this threat, but constitutional doctrine has since legitimized this dangerous sort of power. It therefore is necessary to go back to basics. Among other things, we should no longer settle for some vague notion of “rule of law,” understood as something that allows the delegation of legislative and judicial powers to administrative agencies. We should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power or more concretely of extra-legal, supra-legal, and consolidated power. Then we at least can begin to recognize the danger.

[Reprinted by permission from Imprimis, a publication of Hillsdale College.]

ABOUT the AUTHOR:

Philip Hamburger 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. He has also taught at the University of Chicago Law School, the George Washington University Law School, the University of Virginia Law School, and Northwestern Law School.

A contributor to National Review Online, he has written for several law reviews and journals, including the American Journal of Legal History, the Supreme Court Review, the Notre Dame Law Review, and the Journal of Law and Politics.

He is the author of Separation of Church and State, Law and Judicial Duty, and, most recently, Is Administrative Law Unlawful?

Friday, September 26, 2014

The Farm

I once heard a story from a Nebraskan who grew up in a large farm family. When he was a teenager, his father put him on a tractor to teach him how to farm. Long before GPS, his father was renowned for having the straightest crop rows in the county. The young man took off and carefully began to cultivate the field, often glancing over his shoulder to make sure the rows were absolutely straight. At the end of the field, he and his father examined this first effort. The snakelike meandering rows were a disappointing surprise. His father said to him: “Son, you have to pick one point in the distance and just stay focused.”

There are many life lessons in that story!

As we enter the beautiful fall harvest season in Nebraska, it’s a good time to remember just how much our agricultural way of life means to our economy, culture, and values. There is something very special about the farm way of life – it takes staying focused on a worthwhile goal, dedication, and patience. And this time of year, we see the results.

Nebraska’s ag economy is uniquely situated thanks to a convergence of factors: a strong agricultural tradition, fertile lands, good resource inputs, a robust transportation network, and viable markets for byproducts. We are one of the top states for cattle production, the third highest corn producer, the fourth leading soybean exporter, and a leader in biofuels. One in five American hamburgers comes from Nebraska. Our $7.3 billion in annual ag exports brings our state an additional $9.4 billion in economic activity.

Emerging trends in cover crop rotation will offer advances in naturally preserving soil health while also increasing biodiversity – a positive development for resource sustainability and environmental health. New trends in local foods production are linking farmers to families, and urban to rural, creating an exciting new opportunity for young and beginning farmers. It is interesting to note that the need for global food production will increase substantially by 2050. Nebraska will see increased demand for our products.

In a recent speech in Washington to a large number of development specialists, I jokingly asked, “When did agriculture become cool?” Ag studies are seeing a surge of interest. Additionally, young people, born into an increasingly interconnected world with a particularly globalized mindset, have a keen interest in using market-based initiatives and sustainable development to fight poverty. All of this is helping shape policy and form new visions for how we effectively leverage government resources in partnership with the private sector for more innovative models.

One of the new initiatives in Congress is the Global Food Security Act. This would codify what is currently called “Feed the Future,” which has shown great promise as a holistic approach to meeting food security needs. The United States has a long tradition of leadership in this area due to our devotion to humanitarian causes. This leadership also benefits us economically and culturally, creates the conditions for international stability, and enhances our own national security.

The Nebraska values of hard work, personal responsibility, family and community life are rooted in our great agricultural heritage. Agriculture will play an important role in shaping the outcomes of the 21st century, and with determination and focus, Nebraska is uniquely positioned to guide the way. We have much to offer.

About the Author:

JEFF FORTENBERRY has served as the U.S. Representative for Nebraska's 1st congressional district since 2005. He is the Chairperson for the Subcommittee on Department Operations, Oversight, Nutrition and Forestry. Vice Chair of the Subcommittee on Africa, Global Health and Human Rights and has a seat on the Subcommittee on the Middle East and South Asia. He is a member of the following Caucus groups:

Civil War Battlefield Caucus - Congressional Biofuels Caucus - Congressional Farmer Cooperative Caucus - House Renewable Energy and Energy Efficiency Caucus - International Conservation Caucus - Sportsmen's Caucus.

Congressman Fortenberry has become the most knowledgeable representative on Capitol Hill for nuclear security issues.

Thursday, September 25, 2014

Dobrev Crossover Into “The Originals” New Orleans

Actress Nina Dobrev, who stars as Elena, and a host of other doppelgängers on the long running vampire show will pay a visit to The Big Easy as Tatia [the original ancient Elena], according to E! Online.

In an exclusive interview with showrunner and head guru Julie Plec reporter Kristin Dos Santos got the latest FYI from the set of the show.

“There’s a lot of people that could cross over, and when we plan our crossovers, we like to think of the most clever way to integrate The Vampire Diaries mythology into The Originals mythology,” Plec told Santos. “There was a character’s name introduced a long time ago in season three in association with Klaus [Joseph Morgan] and Elijah [Daniel Gillies] and how they became vampires and a girl that they both loved a long time ago who was the original doppelgänger, Tatia. So Nina Dobrev will be visiting The Originals for a nice little storyline in our fifth episode which airs November 3.”

Both shows return in October on The CW Network. The Vampire Diaries season six premieres on October 2nd with The Originals second season bow taking place on October 6th.

For those who may need a reminder here is the scene in which Klaus tells the Salvatore brothers a little bit about Tatia, the original Petrova, the girl he and Elijah both loved and would spend decades fighting over.

Wednesday, September 24, 2014

Blizzard Axes "Titan"

Blizzard Entertainment has decided to pull the plug on their gestating MMORPG "Titan".

The game went into development a little under ten years ago as a big followup to the company’s highly successful World of Warcraft. While not news that has been digested by all, those in the gaming world have been patiently waiting for Titan’s unveil since November 2004.

In an interview with Polygon Blizzard CEO Mike Morhaime laid his cards on the table and stated, “I wouldn’t say no to ever doing an MMO again, but I can say that right now, that’s not where we want to be spending our time.”

“We had created ’World of Warcraft,’ and we felt really confident that we knew how to make MMOs,” Morhaime added. “So we set out to make the most ambitious thing that you could possibly imagine. And it didn’t come together … “We didn’t find the fun,” Morhaime continued. “We didn’t find the passion. We talked about how we put it through a reevaluation period, and actually, what we reevaluated is whether that’s the game we really wanted to be making. The answer is no.”

Monday, September 22, 2014

Nick Frost In Doctor Who 2014 Christmas Special

Nick Frost, mostly known from his bromance roles with actor Simon Pegg (Star Trek), has been offered and accepted a lead role for the 2014 Doctor Who Christmas Special. Production for the episode has already begun.

Frost recently starred in The World’s End, the story of a group of old friends, after high school, went their separate ways and have rejoined years later to hit every pub in their childhood town ending with the infamous bar The World’s End. What they soon find out is their old haunts have been overtaken by a group of aliens with nefarious plans to overtake humanity.

Doctor Who showrunner and head writer Steven Moffat made the official announcement through BBC One saying, “Frost at Christmas — it just makes sense! I worked with Nick on the ‘Tintin’ movie many years ago, and it’s a real pleasure to lure him back to television for a ride on the TARDIS.”

In an official statement Frost commented, “I’m so thrilled to have been asked to guest in the ‘Doctor Who’ Christmas special, I’m such a fan of the show. The read-through was very difficult for me; I wanted to keep stuffing my fingers into my ears and scream ‘No spoilers!’ Every day on set I’ve had to silence my internal fan boy squeals!”

Other actors starring in this episode will be the son of the second Doctor Who Patrick Troughton. His name is Michael Troughton. Michael is famous in his own right having starred in several successful UK television series over the last 30-years. Also guest starring for the Christmas Special are Natalie Gumede (Coronation Street), Nathan McMullen (Misfits) and Faye Marsay (The White Queen). Of course the big question is — are the rumors true that this will be Who companion Clara Oswald’s (Jenna Coleman) last time travel adventure with the Doctor?

Frost currently has three other films at various levels of production due out in late 2014 and Summer 2015.

Sunday, September 14, 2014

Understanding ISIL

Mosul, Iraq, has been a vibrant center of Christian life for 1600 years. The storied city is mentioned in the Bible, and legend claims that the Prophet Jonah was buried there. Today, Jonah's tomb has been destroyed—and not one Christian remains in Mosul.

Religious fanatics from the Islamic State of Iraq and the Levant (ISIL)—commonly known as ISIS or the Islamic State—expelled Mosul's Christians from their homes in a ruthless campaign of religious and ethnic cleansing. The city was captured in a lightning advance that consolidated a vast territory that now reaches from Syria deep into Iraq. The group was initially called ISIS for their control of land in Iraq and Syria, but their objectives are larger. The name "ISIL" references their desire to capture a broad area, including land from Israel to Iraq known as the Levant. Wherever it marches, ISIL flies a black banner of death that threatens innocent persons.

Who is ISIL? Like many things in the Middle East, the answer is complicated. Assad, the current ruler of much of Syria, has been particularly brutal towards the country's Sunni Muslim population. The uprising against the Assad regime left a power vacuum in the region. In the ensuing struggle, affiliates of al-Qaeda and foreign fighters poured in. The ungoverned space has attracted bad actors from around the world—even from Europe and America—all with a twisted form of religious zealotry. Outside sources use the area as a proxy battlefield to settle old scores. Awash in oil money, the Middle East has provided the resources to fund ISIL and other extremist organizations. Iraq's feckless former Prime Minister Maliki contributed to the problem, causing great disaffection among Iraq's Sunni population. The Iraq army collapsed in front of an ISIL advance that claimed oil fields and U.S. arms. A questionable decision by President Obama in 2012 to not demand a status of forces agreement with Iraq after the war created additional vulnerability.

ISIL is better financed, better armed, controls more territory, and commands a bigger army than al-Qaeda ever has in its dark history.

President Obama has formed a plan of action for neutralizing the Islamic State in Iraq and Syria. I believe overall the strategy deserves support. As specifics unfold, three points should remain essential: First, this is an international effort, without U.S. combat troops on the ground. Second, we must demand a regeneration of Iraq's commitment to fight ISIL and protect vulnerable minorities.

Third, the Kurds must be armed and empowered to provide protective zones in northern Iraq.

One component of the President's strategy demands ongoing scrutiny: arming and training "moderate" Syrian rebels to fight against ISIL. Two months ago, I offered an amendment to stop the prospect of the U.S. arming so-called Syria moderates due to serious concerns that this was an ad-hoc policy that could make a bad situation worse. Many Republicans and Democrats voted for the amendment. Shifting loyalties in the Middle East make it difficult to vet supposed moderate groups. Additionally, if they were defeated, more U.S. arms might end up in the hands of ISIL. We must ensure that we do not worsen an already terrible situation.

Action has risks, but the consequences of inaction are too grave to ignore. We are faced with a number of bad options. The way forward will be difficult, and great prudence is needed. The Islamic State is a threat to all persons in the world and a threat to civilization itself.

ABOUT the AUTHOR:

JEFF FORTENBERRY has served as the U.S. Representative for Nebraska's 1st congressional district since 2005. He is the Chairperson for the Subcommittee on Department Operations, Oversight, Nutrition and Forestry. Vice Chair of the Subcommittee on Africa, Global Health and Human Rights and has a seat on the Subcommittee on the Middle East and South Asia. He is a member of the following Caucus groups:

Civil War Battlefield Caucus - Congressional Biofuels Caucus - Congressional Farmer Cooperative Caucus - House Renewable Energy and Energy Efficiency Caucus - International Conservation Caucus - Sportsmen's Caucus.

Congressman Fortenberry has become the most knowledgeable representative on Capitol Hill for nuclear security issues.