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Frontmatter -- Contents -- Preface -- Introduction -- PART I. The Problem -- 1 Poorly Understood -- 2 Examples -- 3 Regulatory Conditions -- PART II. Unconstitutional Pathway -- 4 Spending -- 5 Divesting and Privatizing Government Powers -- 6 Short-Circuiting Politics -- 7 Denying Procedural Rights -- 8 Federalism -- PART III. Unconstitutional Restrictions -- 9 Consent No Relief from Constitutional Limits -- 10 Consent within and beyond the Constitution -- PART IV. Federal Action -- 11 Varieties of Federal Action -- 12 Force and Other Pressure amid Consent -- 13 Irrelevance of Force and Other Pressure -- PART V. Beyond Consent -- 14 Regulatory Extortion -- 15 Regulatory Agents -- Conclusion -- Notes -- Acknowledgments -- Index

Frontmatter -- CONTENTS -- Acknowledgments -- Introduction -- I LATE EIGHTEENTH-CENTURY RELIGIOUS LIBERTY -- II EARLY NINETEENTH-CENTURY REPUBLICANISM -- III MID-NINETEENTH-CENTURY AMERICANISM -- IV LATE NINETEENTH- AND TWENTIETH-CENTURY CONSTITUTIONAL LAW -- Conclusion -- Index

Intro -- Contents -- Introduction -- 1. Conceptual Foundations -- I. Group Speech and Liberal Fears -- 2. Idealistic Organizations in Politics -- 3. Liberal Democratic Anxieties -- II. The Liberal Assault -- 4. Influence and Propaganda -- 5. Segregation -- 6. Subversion -- 7. Political Theory -- III. Unconstitutional -- 8. The Force of Law -- 9. First Amendment Principles -- 10. Licensing and Wholesale Suppression -- 11. Government Interests -- 12. Other Avenues for Speech -- 13. Not Only Exemptions but Also Deductions -- 14. Distortions of Constitutional Doctrine -- IV. Divided and Subdued -- 15. Rights of Associators and Associations -- 16. Fractions of Persons and Rights -- 17. Government Homogenization of Public Opinion -- 18. Contemporary Speech Restrictions -- Conclusion -- Notes -- Index

Government agencies regulate Americans in the full range of their lives, including their political participation, their economic endeavors, and their personal conduct. Administrative power has thus become pervasively intrusive. But is this power constitutional' A similar sort of power was once used by English kings, and this book shows that the similarity is not a coincidence. In fact, administrative power revives absolutism. On this foundation, the book explains how administrative power denies Americans their basic constitutional freedoms, such as jury rights and due process. No other feature of American government violates as many constitutional provisions or is more profoundly threatening. As a result, administrative power is the key civil liberties issue of our era

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 perniciousand profoundly unlawfulreturn to dangerous pre-constitutional absolutism

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 shows that it revives a version of medieval and early modern absolute power, including the 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 through the law of the land and the courts, not through administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned to precisely the sort of absolute power that the US Constitution - and American 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 benign, natural outgrowth of contemporary life but a preniciuos - and profoundly unlawful - return to dangerous preconstitutional absolutism. -- from book jacket.

The federal government increasingly regulates by using money and other benefits to induce private parties and states to submit to its conditions. It thereby enjoys a formidable power, which sidesteps a wide range of constitutional and political limits. Conditions are conventionally understood as a somewhat technical problem of "unconstitutional conditions" – those that threaten constitutional rights – but at stake is something much broader and more interesting. With a growing ability to offer vast sums of money and invaluable privileges such as licenses and reduced sentences, the federal government increasingly regulates by placing conditions on its generosity. In this way, it departs not only from the Constitution's rights but also from its avenues of binding power, thereby securing submission to conditions that regulate, that defeat state laws, that commandeer and reconfigure state governments, that extort, and even that turn private and state institutions into regulatory agents. The problem is expansive, including almost the full range of governance. Conditions need to be recognized as a new mode of power – an irregular pathway – by which government induces Americans to submit to a wide range of unconstitutional arrangements. Purchasing Submission is the first book to recognize this problem. It explores the danger in depth and suggests how it can be redressed with familiar and practicable legal tools. ; https://scholarship.law.columbia.edu/books/1310/thumbnail.jpg

A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution's early history – most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation. A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court's current nondelegation doctrine, the article employs history to challenge the doctrine – arguing that the Constitution does not limit Congress's delegation of legislative power. But the article's most central historical claims are mistaken. For example, when quoting key eighteenth century authors, the article makes errors of omission and commission – leaving out passages that contradict its position and misunderstanding the passages it recites. The initial goal of this Essay is therefore to explain the evidentiary mistakes in the attack on nondelegation. This Essay's broader aim, however, is conceptual: it points out two basic principles that have thus far received insufficient attention from both the defenders and opponents of administrative power. First, the delegation problem can be understood more specifically as a question of vesting. To be sure, the nondelegation doctrine should be put aside – not on the grounds offered by Professors Mortenson and Bagley, but because the Constitution speaks instead in stronger terms about vesting. Thus, what are generically depicted as questions of delegation can be understood more specifically in terms of vesting and divesting. It thereby becomes apparent that Congress cannot vest in others, or divest itself of, any power that the Constitution vests in it. Second, it is necessary to draw attention to a much-neglected idea of executive power. Recent scholarship has debated widely different conceptions of executive power – Mortenson's view, now echoed by Bagley, being that executive power is an "empty vessel." But all such scholarship tends to ignore another conception of executive power: that it involves the nation's action, strength, or force. This understanding of executive power has foundations in eighteenth-century thought – as revealed even by the authors quoted by Mortenson and Bagley. Indeed, it is the conception asserted by Federalist Number 78 and evident in the Constitution itself. A narrow historical inquiry thus points to broad conceptual lessons. Both delegation and executive power need to be reconsidered on the basis of the Constitution and its history.

Administrative power does profound harm to civil liberties, and nowhere is this clearer than in the administrative evasion of procedural rights. All administrative power is a mode of evasion, but the evasion of juries, due process, and other procedural rights is especially interesting as it most concretely reveals the administrative threat to civil liberties. In contemporary doctrine, due process and most other procedural rights are understood mainly as standards for adjudication in the courts. Traditionally, however, they were understood, at least as much, to bar adjudication outside the courts. That is, they were understood to block evasions of the courts and their procedural rights. Nonetheless, administrative power evades procedural rights – not only in agency tribunals but also in the courts themselves. The resulting administrative adjudication gives the government ambidextrous paths for enforcement. And it thereby transforms procedural rights from constitutional guarantees into mere options for government power. Turning to theory, this argument about procedural rights is part of a broader thesis about the nature of administrative power. Current doctrine and scholarship presents administrative power as an expression of law, but it makes much more sense to understand it as power – a sort of power that flows in a cascade around pre-existing structures and rights, whether established by the Constitution or the Administrative Procedure Act. Despite its pretense of being administrative "law," it really is a mode of evasion. Overall, the administrative evasion of procedural rights illustrates how seriously administrative power threatens civil liberties. Whatever one thinks of administrative power as a structural or sociological matter, it is also a civil liberties problem.

In the course of exempting religious, educational, and charitable organizations from federal income tax, section 501(c)(3) of the Internal Revenue Code requires them to refrain from campaign speech and much speech to influence legislation. These speech restrictions have seemed merely technical adjustments, which prevent the political use of a tax subsidy. But the cultural and legal realities are more disturbing.Tracing the history of American liberalism, including theological liberalism and its expression in nativism, Hamburger shows the centrality of turbulent popular anxieties about the Catholic Church and other potentially orthodox institutions. He argues persuasively that such theopolitical fears about the political speech of churches and related organizations underlay the adoption, in 1934 and 1954, of section 501(c)(3)'s speech limits. He thereby shows that the speech restrictions have been part of a broad majority assault on minority rights and that they are grossly unconstitutional.Along the way, Hamburger explores the role of the Ku Klux Klan and other nativist organizations, the development of American theology, and the cultural foundations of liberal "democratic" political theory. He also traces important legal developments such as the specialization of speech rights and the use of law to homogenize beliefs. Ultimately, he examines a wide range of contemporary speech restrictions and the growing shallowness of public life in America. His account is an unflinching look at the complex history of American liberalism and at the implications for speech, the diversity of belief, and the nation's future ; https://scholarship.law.columbia.edu/books/1005/thumbnail.jpg

Government agencies regulate Americans in the full range of their lives, including their political participation, their economic endeavors, and their personal lives. As a result, administrative power is a pervasive feature of American life. But is this power constitutional? A similar sort of power was once used by English kings, and this book shows that the similarity is not a coincidence. In fact, administrative power revives absolutism, and on this foundation, the book explains how administrative power is profoundly unconstitutional. In one way after another, it denies Americans the freedoms guaranteed by the Constitution, including procedural rights such as juries and due process. No other feature of American government violates more constitutional provisions or is more profoundly threatening. As a result, administrative power is the key civil liberties issue of our era. ; https://scholarship.law.columbia.edu/books/1021/thumbnail.jpg