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The Tyranny of Administrative Law

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July 31, 2017 – Published on Amazon.com
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This short little book (64 pages) should be required reading for all first year law students. And by their second year they should have read Professor Hamburger’s great work on this subject, Is Administrative Law Unlawful?.
Professor Hamburger is so clear in his presentation and presents with such an economy of words that it is difficult to summarize why his work in administrative law is so important.
However, put over-simply, our present system of administrative law subverts our entire system of government by illegally assuming powers that properly belong only to the legislature and to the judiciary and, I might add, to the people themselves. Rights guaranteed to every citizen are ignored and trampled upon without possibility of redress.
I am receptive to his thesis because I began to worry about the same issues many years ago when confronted with an administrative law case at the state level. Because I moved across the country I was unable to pursue it as I intended. However, a recent case in Oregon presents the same issue.
Owners of bakery in Oregon were condemned and assessed damages for refusing to bake a cake for a gay wedding. The charge, adjudication, and damages were all handled within an administrative agency, one of the executive branches of government.
The lawyers, to the extent that I looked at the case, appeared to do a competent, professional and proper job within the context of the administrative process. It was also a defense that was doomed to fail. There was no jury and there was no independent tribunal (judge) to hear the case. Everything was managed by employees of an agency that brought the charges and was predisposed to rule against the defendants.
How is that just? Imagine that the chief executive of your state, typically the governor, decides you have violated some law or regulation and then decides that you owe the state or some other party $100,000 and then sets about to collect it. When the core legal powers of the chief executive are examined it can be see that the guy has no legal authority to do such a thing, and no administrative employee whose powers are derivative from the governor can do it either. When you derive some power from a superior you never get greater power than the superior has.
Quite simply, if a law were violated in this case, it needed to be brought before a regular, independent judge who is not an employee of the complaining agency and it ought to be heard before a jury empowered to decide the facts and determine damages,if any. Indeed, the Oregon Constitution, in the State’s so-called Bill of Rights states: “Article I: Section 17. Jury trial in civil cases. In all civil cases the right of Trial by Jury shall remain inviolate.” The bakery dispute was a civil case.
The entire administrative apparatus ignores centuries of law prescribing the nature and need for Due Process and it upsets the State’s own Constitution and pretends to place what is clearly arbitrary and dangerous power into the hands of bureaucrats.
Right or wrong, these bakers deserved something better than an edict from a legal system found in the Roman Empire or the Star Chamber of Seventeenth Century England. They legally deserved due process before a proper, independent judge and jury.
What might their lawyers have done? Possibly nothing would have worked, but when I was confronted with a similar legal issue decades ago I was thinking of something along the lines of a Quo Warranto proceeding challenging the authority of the state agency to usurp the role of legislature and judiciary. For those unfamiliar with the term, this (or a related proceeding) would be similar to a Habeas Corpus proceeding in which an agency detaining someone is challenged to show by what legal authority they hold someone prisoner. Often in those proceedings, the sheriff (or whoever) can very easily legally justify holding a prisoner, but I am not at all sure that an over-reaching administrative agency can come up with a good legal justification for pushing aside the other two branches of government that clearly do have the authority to pass laws on the one hand and hold trials on the other. I know, for a fact, that none of these agencies can find explicit authority for their acts in the Constitution.
Professor Hamburger has done a great service to the country and the legal community by explaining exactly why the current administrative law system is illegal and dangerous. One only hopes he is not too late.
Note: In my title for this post about the ‘Tyranny’ of administrative law I am not using the expression so common in the modern sense as in the usage of the original Greek, meaning an exercise or rule without legal authority. Tyrants in Greek city states were not always evil or harmful but they ruled extra-legally, that is to say without legal authority. That, I think, is what much of our administrative law does. It doesn’t matter that agencies often do good and often are efficient (although being neither good nor efficient also too often applies). What matters is that they have no legal authority for what they do and ruling without authority they destroy a carefully created system of self government and right to due process.