Columbia Law Professor Philip Hamburger on the Administrative State

On November 4th, 2017, Professor Philip Hamburger spoke on a panel Federalism and the Modern Administrative State at the Buckley Program’s conference The Constitution and the Courts.

Hamburger is the Maurice & Hilda Friedman Professor at the Columbia University School of Law. He is a leading scholar of constitutional law and its history, specifically the First Amendment, administrative power, religious liberty, and judicial review. He has authored articles for many major publications and published numerous books, including his newest work, The Administrative Threat, a 68-page distillation of his previous 646-page work Is Administrative Law Unlawful? This year, Professor Hamburger was awarded the Bradley Prize, a $250,000 stipend for “innovative thinkers.”

The Buckley Program had the chance to interview Professor Hamburger at the Omni Hotel in New Haven, CT. The transcript has been condensed and lightly edited from a longer interview.

By: Andreas Ravichandran

Andreas: You’ve written extensively about the administrative state and its overreach. I was wondering if you could start out by defining for us what that term means.

Professor Hamburger: Administrative power, or administrative laws, can be understood many different ways. One definition is very broad, including all executive exercises of power, whether imposing constraints or offering privileges and benefits. There’s a distinction between benefits and constraints that’s viewed as old-fashioned these days, but I think it matters because if one is going to understand what’s constitutional and what’s unconstitutional, it’s helpful to note that the executive does have wide-ranging powers when it comes to distributing privileges or benefits. These powers are not at all unconstitutional and are actually very important. In contrast, the executive sometimes exercises power to bind Americans, in the sense of issuing edicts, whether of legislative or judicial character, that impose legal obligation. And this is what I call administrative power because that’s a way of controlling Americans, not in ways that are laid out in the Constitution, namely legislative and judicial power in Congress and the Courts, but through other pathways. So that’s what I view as administrative power and as unlawful.

Andreas: What would be an example of that?

Prof. Hamburger: When an agent of the FCC or the FDA or the EPA issues a rule that is in effect a bit of legislation that controls what Americans can do, whether on developing a new kind of device or speaking on the airwaves or anything of the like. Which is not to say we shouldn’t have regulation, for I’m not arguing against the substance of the regulations, just that the rules that bind us should come from an act of Congress rather than the act of some agency.

Andreas: These administrators are confirmed by the legislature and act upon a mandate. So what do you see as the tradeoff between delegation to improve administrative efficiency and legislative oversight?

Prof. Hamburger: Not only are the administrators confirmed by the Senate, but the authority of all agencies in one or another are grounded in statutes that authorize the agencies and often even authorize the issuance of rules that bind. So there’s no doubt that there’s potential for accountability through Congress and that Congress authorizes this. But that’s a different question from whether it’s constitutional, since the Constitution places all legislative power in Congress and judicial power in the Courts.

And yes, there are tradeoffs, but it’s not clear to me how great the tradeoffs are in terms of efficiency. An agency with as much expertise as it has can propose rules to Congress, and as a formal rule, Congress can adopt rules proposed to Congress faster than agencies typically can, because Congress doesn’t have a 30-day waiting period. The real obstacle in all of this is political. Sometimes Congress doesn’t want to adopt all the things agencies want to adopt, which is why they sometimes leave all this to agencies and why we expect none of these rules to come from Congress.

Andreas: In your writing, you’ve cited the EPA and some of its Obama-era regulations as examples of administrative overreach. Do you see this overreach as an extension of a progressive agenda or a wholly non-partisan issue?

Prof. Hamburger: I don’t think either party has any kind of virtue on this. Republicans have been almost as bad as Democrats on the subject of administrative power, so there’s no need to be pointing fingers in either direction. We as a nation are guilty of creating our problems in this, so these issues are not political at all in one way or another. Now there is a history in this issue with the progressive movement of the late 19th century and early 20th century, but even then many Republicans were involved. The danger lies in certain attitudes towards the Constitution and admiration of Bismarck, but I wouldn’t call it political.

Instead, it’s better to think of this in terms of class differences. There is a knowledge class, the class of Americans who are credentialed in academic institutions, and in particular those who value the authority of academic knowledge over the hierarchies of local representative government. That class division is central here. That class, which opened equal voting rights and extended rights to blacks and women, was not very happy with its results, and we get one of the great bait-and-switches in American history. While the knowledge class extended the right to vote to all sorts of minorities, at the same time they withdrew legislative power out of elected Congress and into the agencies, to persons like themselves, who also happened to be white and male. Although again, I don’t think it was necessarily racist, though it was for certain people like Woodrow Wilson and some founders of administrative power. What I think is actually going on long-term is a class disdain for the choices of the populace.

Andreas: Looking forward, what do you see as the future of the administrative state in the Supreme Court?

Prof. Hamburger: I think these questions will come to the floor because the administrative state is the central civil liberties issue of our era. And so inevitably as Americans realize this and claim their Constitutional rights, whether their procedural rights or the right to have an effective vote, we will see this debated in the courts.

Andreas: Thanks so much for your time Professor Hamburger.

Andreas Ravichandran is a junior in Benjamin Franklin College.