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Is Administrative Law Unlawful? Reprint Edition

by Philip Hamburger (Author)
4.6 4.6 out of 5 stars 102 ratings
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Is administrative law unlawful? This provocative question has become all the more significant with the expansion of the modern administrative state. While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society.


With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution―and constitutions in general―were designed to prevent.


With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious―and profoundly unlawful―return to dangerous pre-constitutional absolutism.
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  1. ISBN-10
    022632463X
  2. ISBN-13
    978-0226324630
  3. Edition
    Reprint
  4. Publisher
    University of Chicago Press
  5. Publication date
    December 8, 2015
  6. Language
    English
  7. Dimensions
    10 x 4.77 x 1.41 inches
  8. Print length
    648 pages
  9. See all details
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Editorial Reviews

Review

“Is Administrative Law Unlawful? is a work of the very highest quality, a learned scholarly exegesis setting out the intellectual foundations—in medieval and early modern English constitutional thought—for the proposition that the contemporary American administrative state is profoundly unconstitutional and unlawful. Philip Hamburger’s argument is intricately wrought and forcefully expressed. Its indictment of modern administration in America doubles as a major statement on the virtues of a genuinely constitutional government.”
-- Ken I. Kersch, Boston College

"With characteristic erudition, Philip Hamburger shows how virtually every aspect of the modern administrative state undermines the Anglo-American legal tradition―or at least that part of the tradition that most informed the American founding. It is a provocative thesis, but one that is amply supported by extensive scholarly argument and fascinating historical study. Hamburger makes an impressive case that modern administrative law owes its lineage to claims of monarchical prerogative and civil law absolutism that were precisely the ideas that the American revolution was trying to reject. This is a tremendously important book." -- Gary S. Lawson, Boston University School of Law

“An important new book that is very much worth reading." ― National Review, Bench Memos Published On: 2014-05-29

"The most important book I have read in a long time." -- Scott Johnson ― Power Line

“The administrative state is a modern invention. It was, and remains, a necessity in our complex modern age. Or so goes the argument. . . . Hamburger meticulously (and sometimes laboriously) demonstrates how the modern administrative state revives all the attributes of the royal prerogative and absolute power.” -- Ilan Wurman ― Weekly Standard Published On: 2014-07-21

“A serious work of legal scholarship. . . . This is a book that rewards the reader with a deepened understanding of the Constitution and the challenges that confront us in the task of restoration. . . . The news of the day repeatedly buttresses the powerful case Hamburger makes against the legitimacy of the vast administrative apparatus that does so much to dictate the way we live now. It is a book not only of this season but of many seasons to come.” ― National Review

“An interesting new work by Philip Hamburger dispenses with the tiresome back and forth between Republicans and Democrats. Instead, it focuses on Washington’s permanent administration―the ever-expanding federal bureaucracies that have come to play a central role in health care, finance, housing and work, and large roles in education, energy and whatever else constitutes the American system. . . . Hamburger’s book is filled with details of how the centralisation of power divorced from a popular or court mandate leads to insularity and even insurrection as hopes of efficiency and expertise give way to bureaucratic inertia.” ― Economist Published On: 2014-08-09

“[Is Administrative Law Unlawful?] is the author’s most ambitious, even daring, work, for not only does it question important features of administrative law; it challenges (as the title suggests) their very legality. . . . Deeply researched and well written, the book is a veritable cornucopia of fresh and significant insights that will greatly enrich the existing literature. It is a work of encyclopedic breadth and erudition, confirming that its author is equally comfortable with grand themes and matters of granular detail.” ― Claremont Review of Books Published On: 2014-11-20

“Hamburger argues persuasively that America has overlaid its constitutional system with a form of governance that is both alien and dangerous. . . . Some readers undoubtedly will find daunting this book’s length. . . . But it is lucidly written and carefully organized, and certainly it is no small task to analyze just how deeply the administrative state threatens liberty and constitutionalism. Scholars will return to Hamburger’s exhaustive explication of these issues for a long time to come.” ― Law and Politics Book Review Published On: 2015-04-06

“Immensely important. . . . Hamburger indicts the entire structure of executive-agency rulemaking as illegitimate. . . . An argument of deep passion, learning, intelligence, and consequence that deserves to reach the widest possible audience.” ― City Journal Published On: 2015-04-21

“A masterful look at the origins and legitimacy of American administrative law. . . . Anyone interested in the rise of the American administrative state will benefit from this original, erudite, and thought-provoking book.” ― Law and History Review Published On: 2015-10-22

"Philip Hamburger’s Is Administrative Law Unlawful? is a powerful legal broadside against the American administrative state." ― Society

About the Author

Philip Hamburger is the Maurice and Hilda Friedman Professor of Law at Columbia Law School.

Product details

  • Publisher ‏ : ‎ University of Chicago Press; Reprint edition (December 8, 2015)
  • Language ‏ : ‎ English
  • Paperback ‏ : ‎ 648 pages
  • ISBN-10 ‏ : ‎ 022632463X
  • ISBN-13 ‏ : ‎ 978-0226324630
  • Item Weight ‏ : ‎ 2.01 pounds
  • Dimensions ‏ : ‎ 10 x 4.77 x 1.41 inches
  • Customer Reviews:
    4.6 4.6 out of 5 stars 102 ratings

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Philip Hamburger

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4.6 out of 5 stars
4.6 out of 5
102 global ratings

Top reviews from the United States

Green Stone
5.0 out of 5 stars Best explanation of why the "Administrative 4th Branch" of government is wholly unlawful
Reviewed in the United States on August 31, 2023
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I haven't found any book which does as well as this one by Philip Hamburger, in explaining why the "4th branch" of government called the administrative state, is not just unlawful and unconstitutional, but PROFOUNDLY unlawful and unconstitutional.

Other analyses of the administrative state seem reluctant to "call a spade a spade" and make this powerful and necessary assessment. For instance Joseph Postell's book makes some of the same observations as Hamburger's book, but Postell avoids making the necessary conclusion that there's no way the unlawfulness of administrative power and administrative law can be justified. This is a significant failing.

As well, Hamburger points out that courts in our nation have repeatedly "deferred" to the adminstrative state, which should make it abundantly clear that "It turns turns out that the law of the land is not supreme, and that administrative law is a power above the law, a power so elevated that judges do not hold it to account in the same manner as other government acts.” (pg 412)

Hamburger also traces administrative power to the "absolute" and extralegal power of European monarchs (which, ironically, was prohibited in England over 3 centuries ago), which is necessary to see how highly unconstitutional and unAmerican it is.

Other writers on administrative power and administrative law are in my view too spineless and weak to come to the necessary conclusions about how lawless our government has become, through its use of the administrative state.

The next step, which I haven't seen anyone begin to take including Hamburger, is to investigate how the development of the administrative state in our nation was an intentional move by the global crime syndicate we call the Cabal, which has infiltrated and taken over not only the US Government but virtually every government across the world, in order to undermine our Constitutional Republic and lay the foundations for totalitarian rule.
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Americans Love Freedom
5.0 out of 5 stars I was not disappointed. I have been on a bread-crumb-trail to find ...
Reviewed in the United States on November 18, 2014
Verified Purchase
This is a watershed work. It was highlighted in a speech by the author in the September, 2014 issue of Hillsdale College Imprimis. I was so excited that I rushed out to purchase a copy. I was not disappointed. I have been on a bread-crumb-trail to find out what went wrong with America since the Vietnam war. In 1980, I became a student of the tenets of a free society by reading everything I could from the Foundation for Economic Education and Hillsdale College, Michigan. It was there that I learned about Ludwig von Mises and the Austrian School of Economics. Many, many Americans have said for decades that we have lost our freedoms. But it has always been difficult putting one's finger on exactly how that has occured. I had discovered the Fabian Socialist Society, a group in England founded prior to the 1900's that espoused the doctrines of Marx. The man responsible for the American monetary system, Lord Maynard Keynes, was a member of that society. I then learned that it was through the Fabians that the League for Industrial Democracy was the American beachhead for the statist doctrine. It's objective was to infiltrate Harvard with Keynesian economics and the statist doctrine to teach those who would become the professors of those students who would become the teachers of our children and thus indoctrinate our culture with Marxist statism. In the late fifties or early sixties, a number of Harvard alumni had formed the Veritas Foundation to investigate just how Harvard had been sidetracked. Two studies were published in 1964 deliniating this.

Surprisingly enough, these ideas had been challenged and refuted, point by point, by what became known as the Austrian School of Economics starting with Carl Menger and the subjective theory of value. Ludwig von Mises, a major economist in Austria took up the banner and refuted the Marxist agenda in his monumental book entitled, Socialism, published in 1922. By that time, however, most of the American university system had been converted to the statist ideal and supressed Mises' and others of the Austrian school's, work.

In January, 2012, I purchased from the Ludwig von Mises Institute in Auburn Alabama a work by King Juan Carlos University, Madrid, Spain Professor of Political Economy, Jesus Huerta de Soto's Money, Bank Credit, and Economic Cycles. Professor de Soto goes back 2,400 years into Roman law and the definitions of banking contracts and property rights to discover that the real culprit is the practice of fractional banking, whether private or centrally conceived as the Federal Reserve Bank.

So to boil it all down, there is the socialistic attack on the one hand and the monetary/currency issue on the other that seems to have America in a cultural and financial stranglehold. But just how this ocurred has been illusive. It makes people's heads swim!

Enter Law Professor Philip Hamburger. Professor Hamburger goes back to English law in 1610 to show that what we know today as Administrative Law, is none other than the absolute power used by monarchs as prerogative authroity and as such, is the explicit reason for the enactment of the English Constitution and subsequently the United States Constitution. It is Administrative Law that is the FED, the EPA, the draft of the Vietnam era aa well as our Departments of Motor Vehicles and Education. Professor Hamburger points out that this administrative pursuit operates outside of and above the law. He calls it extra-legal and supra-legal. He also states that it consolidates the separate branches of government and in effect becomes the FOURTH branch of our government, negating the other three. His is a scholarly work.

In his Introduction he states: "Administrative law... has transformed Americn government and society... it has become the government's primary mode of controlling Americans... increasingly imposes profound restrictions on their liberties" So, if you have been feeling like you have been losing your liberty, it is because you have been losing your liberty and Professor Hamburger is throwing the curtains of OZ open to the light of day. Hallelujah! He goes on to say that our courts and judicial system defers to this new form of absolute power over citizens and should be considered profoundly dangerous. He says on page 511, "...it is unconstitutional... contrary to the very nature of Anglo-American constitutional law and society." Buy this book and drink long and deep from his exposition.
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Top reviews from other countries

Dr.Ravindran pranatharthy
5.0 out of 5 stars The author unveils arguments that come off like fresh air against the modern adminstrative state and its ...
Reviewed in India on September 30, 2015
Verified Purchase
The author unveils arguments that come off like fresh air against the modern adminstrative state and its abominable excesses. Its a delight to read what many would shy away from even considering for the fear of being hauled up for being antediluvian. The administrative law has become a frankenstein monster and is spreading as a legal epidemic that simultaneously threatens to set in as an unyielding endemic entrenchment. Something must be done and people dont know what to do about it. In my view, the explosion in the human population is the root of this and so many other evils. Let us face the truth. A large population and the myriad activities of the post-modern society is not kind to the idelas that the Author holds up. But still it cannot be a reason for giving it up. The fight against the unhealthy proliferation of administrative law must be waged and the battle joined.
One person found this helpful
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