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The History and Danger of Administrative Law

The Professor of Law at Columbia Law School, Philip Hamburger, is opposed to the ‘absolutism’ underlying conventional administrative law in the United States of America. He describes administrative law or power as an ‘off-road driving’ that is a way of by-passing the constitutional authorities, namely legislative, executive and judicial, in attempt to enforce binding judicial power. In another sense, he explains it as setting aside the avenues of binding power (the acts of the congress and courts) in order to solve the problems of modern society in all its complexity. Thus, administrative law is guided by necessity.

Historically, administrative power dates back to the era of monarchy though its rise in the United States was in 1887 when the congress created the Interstate Commerce Commission. Philip Hamburger traced the history to the prerogative power of the kings during the monarchical era. From his perspective, modern administrative law is a reemergence of absolute power of the king. For reasons not disclosed in the article, kings exercised personal power to evade the law using prerogative right. This is absolutism! According to Hamburger, conventional administrative law is traced to the defense and development of an extra judicial power. For the progressives, it is a pragmatic and necessary response to the new complex practical problems of the American life. The ‘pragmatic and necessitous character’ of administrative law/power is presented in such a manner that its opposition is termed anti-modern and quixotic.

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The American reaction to administrative law according to Hamburger is the suppression of the absolutism underlying it. While citing the fate of England in the hands of prerogative power, he stated that “the defenders of this sort of prerogative power were not Squeamish about describing it as absolute power” (Hamburger, 2014). Such a suppression of the country’s binding constitution is Hamburger’s greatest fear of administrative law.

I support the views of the author based on the fact that the wounds of totalitarianism remain in the minds of Europeans, especially in the victims of German socialism. The American Constitution is framed in a manner to curtail all forms of power abuse to the detriment of freedom. The author cites the following line from the Constitution as opposing to the administrative absolutism: “All legislative Powers herein granted shall be vested in a Congress of the United States.” His emphasis on the word “all” is clearly understood in defense of any abuse of administrative power. The American constitution is framed out of ‘good will’. It raises the question of the reasons for the government to request for extra judicial powers beyond the Constitution.

Hamburger broke down the details of administrative power highlighting delegation and procedural rights. Delegation of legislative powers is a feature of absolutism. Granting waivers that is by-passing the due process creates room for abuse of individual rights and substitution of inquisitorial process for the due process of the law. According to Hamburger (2014), “administrative adjudication thus becomes an open avenue for the evasion of the Bills of Rights.”

The ‘slippery slope’ phenomenon is an argument used against gradual liberalization of moral prohibitions. According to Jozé Trontelj (2013) in his article “Ethics Is a Bridge between Science and Faith,” he explained the phenomenon to mean ” … that one recognizes a limited, well deserving exemption in a case of very special circumstances and grants an exceptional permission for a previously prohibited action” (p. 14). The rise of Administrative law in the American society can be termed a ‘slippery slope’ since the reason for its promotion at the moment may appear genuine, but the long-term effect will be a return to absolutism.

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According to Hamburger (2014), the progressives are discontent with elected legislatures; thus, the solution is to introduce German theories, including absolutism. They make use of the ‘slippery slope’ to bring it into the American society. The crisis between the progressives and the elected legislatures should be checkmated. Employing German theories to suppress the Constitution is motivated by greed and quest for power. As long as this crisis remains, the electorate will lose confidence in the government.

The introduction of the administrative law will affect my understanding of the Constitution as the principle guide and protector of the Americans. Conceiving a waiver of the Constitution creates room for suspicion and fear. The issue of who determines the course of action in which administrative law applies is bound to arise. The argument presented by the progressives is not convincing enough. Absolutism may be complex for the Constitution to handle. History has a lot to inform about the life people under totalitarian regimes. If administrative law is not checked, and Hamburger’s prediction comes true, Americans should be ready to witness suppressive governments and violation of human rights. The supremacy of the Constitution cannot be compromised at this stage in history when the worth of human life is of priority.

I support the ‘rule of law’ but not ‘rule under law.’ The former ensures that due process is followed by all the proceedings of the government. The latter gives the progressives the edge to evade taxes and avoid prosecution. The supremacy of the Constitution remains the guiding principle, and no one is above it.