Authored by: Philip Hamburger
Reviewed by: Kevin Miller
Keyword: Administrative State, Regulatory State, Deep State, King James I, Star Chamber, High Commission, Unaccountable Bureaucracy, Unelected, Constitution, Congressional Abdication, Freedom, Unchecked Power, Due Process
The Essence of the Book:
Dr. Philip Hamburger writes dense, learned, intricate books for Constitutional attorneys, public policy nerds, and other people (like this reviewer) who don’t get out as much as they probably should.
Starting his book output with Separation of Church and State and then Law and Judicial Duty, he published Is Administrative Law Lawful? in 2014.
The administrative state. The regulatory state. The deep state. These labels all attempt to describe the apparatus of bureaucracy that is using Federal government rules and “administrative judges” (and other such tools) to shape and modify the behavior of Americans. Are these people following the law (the Constitution)? Hamburger says “no” in his 2014 book.
Then Encounter Books came along in 2017 and published a pamphlet-book by Hamburger called The Administrative Threat, a short 64-page, roughly 5×7 binding that would easily fit in your backpack or cargo shorts leg-pocket without anyone knowing it was there.
The purpose? Clearly, this is a compact distillation of what Hamburger believes are the essentials to inform and persuade of the American political reality likely to become the very most important political issue over the next thirty years…and beyond.
Well, do not take this book to the beach. That will ruin your vacation.
But The Administrative Threat is a top candidate for the most important book published the last ten years in America, though little-read and rather obscure at this point in time. Obscure, that is, until such time as you and a million others buy a stack of them and hand them out to friends.
Here’s a distilled essence of what Hamburger outlines in his big-picture perspective.
What’s going on? Many administrative agencies in America operate outside the prescribed-intended Constitutional boundaries for the executive, legislative, and judicial branches of the U.S. Government. Essentially, each agency now functionally sets many of its own rules (i.e., lawmaking), oversees or enforces Americans’ compliance with those rules (i.e., executive power), and then handles the guilt or innocence and penalties for not complying with those rules using “administrative judges” or the equivalent (i.e., judicial activity). Pretty amazing: on an operating level, just substitute bureaucratic processes for all three functions of Constitutional government—one powerful agency at a time.
How did we get to this stage? In a sentence: Congress, the Federal Courts, and the Executive Branch have substantially ceded or unconstitutionally “delegated” this largely unchecked power to many administrative agencies.
How did the Founders miss this in the drafting of the Constitution? They didn’t. They fully expected this from their knowledge of and historical experience with governance in England, notably mindful of King James I (not LeBron!) and his Star Chamber and High Commission as the shining examples of the abuse of power (where he circumvented any possible checks to his power—Parliament abolished both the Star Chamber and High Commission in 1641).
So, America’s Constitution-drafters specifically created wording (e.g., “All legislative powers herein granted shall be vested in a Congress…”, the Fifth Amendment provides “due process of law”) and structure (e.g., the Bill of Rights as Amendments instead of interspersed within the body of the Constitution) in order to try to avoid any such possible abuse of power.
How did it come to happen anyway? One major key way was that elite American students studying in Germany in the 19th century ultimately imported the German way of governance top-down with very strong administrative power, in due time significantly impacting U.S. governance. In 1887, the U.S. established the first major administrative agency, the Interstate Commerce Commission. Roosevelt’s New Deal of the 1930s created a number of three-letter acronym agencies. The pace of administrative growth and power since has been relentless.
What’s the upshot? Now, administrative agencies in Washington are increasingly and systematically controlling key segments of the behavior of many American citizens, with little realistic recourse for citizens to the due process protections that the Constitution promises them.
Who is being impacted? Well beyond high-up executives complaining about burdensome, expensive economic rules and government overreach hurting their enterprises, these extensive rules are looming over and, sooner or later, entering the routine of every American’s life. You know, like the Food and Drug Administration (FDA) unilaterally deciding upon, significantly delaying, or even thwarting innovation in the creation of new medicines/drugs—curbing opportunities that blissfully oblivious American don’t even know about.
What is to be done? Well, that’s the title to the final little section of this fine, alarming, frustrating book. No easy fix here—heretofore administrative-power-pliant Presidents, Congresses, and the Federal Courts have to step up to the plate and effect real change.
This is not remotely a conspiracy theory or the like. Every bit of the story is discoverable, historical, and expanding—here the story crafted by a top-drawer Yale professor and attorney.
What does this reviewer say? It seems clear that freedom cherishing Americans can win many a battle in the political arena encompassing the traditional understanding of the Executive, Legislative, and Judicial branches of the U.S. Government over the next couple of decades. But they can still the lose the war for the Constitutional liberty desired and structured by the country’s founders. Persistent execution of clear strategy addressing the administrative threat is needed.
This is one issue that every person in America—liberal or conservative, right or left—should bind together on and slowly, painfully work to resolve. Because this kind of unaccountable power can and will cut both ways.
So, during your beach vacation, listen to Spotify or take selfies or post on Instagram or Facebook.
After that, read and ponder this very short book while you are passing a kidney stone or removing skunks from under your back deck or nursing your leg that you broke in a car accident, so that none of those events seem like any trouble at all.
The Greek statesman and orator Pericles states this foundational political reality: “Just because you do not take an interest in politics doesn’t mean politics won’t take an interest in you.”
Indeed, the administrative state has an intense interest in every American. Now, take an interest in it, because as Pericles states elsewhere: “Freedom is the sure possession of those alone who have the courage to defend it.”
Reviewed by Kevin Miller