Response to Hamburger

Introduction

  • Texas Law Review See Also Volume 94 Response to Vermeule Unbound by Philip Hamburger.

Main Context

  • Hamburger critiques Adrian Vermeule's review of his book "Is Administrative Law Unlawful?"

  • Vermeule asserts that Hamburger's arguments lack constitutional basis and mischaracterizes the nature of administrative power.

  • Hamburger argues that Vermeule's position on administrative power is fundamentally flawed and highlights Vermeule's mischaracterizations.

Structure of Hamburger's Response

  1. My Arguments

    • Hamburger summarizes his key arguments against administrative power.

    • He emphasizes that his book presents a new paradigm of administrative power and its history.

  2. Mischaracterization

    • Hamburger details how Vermeule misrepresents his arguments and claims he rejects.

  3. Not a Nutshell

    • Hamburger indicates that Vermeule treats his complex arguments simplistically.

  4. Historical Errors

    • Hamburger points out Vermeule's misunderstandings of historical context.

  5. Personal Attacks

    • Hamburger addresses the ad hominem attacks made by Vermeule.

Detailed Analysis of Hamburger's Arguments

I. My Arguments

  • Hamburger defends his choice to argue against administrative power by presenting conceptual, historical, and constitutional claims.

A. Concepts: Absolute Power

  • Defines administrative power as akin to absolute power.

    • Definition of Absolute Power:

    • Extralegal: Binds subjects through commands other than law.

    • Supralegal: Rises above the law, judges defer to it instead of law.

    • Consolidated: Combines the powers of government in one body or individual.

  • Claims that administrative authority operates in these extralegal, supralegal, and consolidated ways, thus making it absolute.

Not Unlimited

  • Hamburger denies that administrative power is unbounded by law, countering Vermeule's views on executive power.

  • The concept of absolute power does not equate to unlimited power; administrative law, while problematic, does have some limits.

Extralegal Does Not Mean Unauthorized

  • Administrative power can have statutory authorization but still be considered extralegal.

  • Power imposed outside law creates a system of governance that can interfere with liberties afforded under the law.

A Mode of Evasion

  • Administrative power can evade constitutional pathways required for law-making and adjudication.

  • This power undermines checks and balances and disregards procedural rights.

B. History: Revival of Absolute Power

  • Hamburger traces the historical continuity of absolute power into contemporary American administrative power.

Revival of Absolutism

  • Argues that administrative power mirrors English monarchs' use of prerogative power to bypass legal constraints.

Continuity of Absolutism

  • Highlights how administrative power has evolved from historical absolute prerogative, especially through German influences.

  • Early American progressives imported these bureaucratic administrative ideas, leading to modern administrative power.

C. Constitutional Law: Rejection of Absolute Power

  • Hamburger contends that the U.S. Constitution was designed specifically to prevent the resurgence of absolute power.

  • He refutes the notion that administrative law's modernity frees it from constitutional constraints.

Provisions of the U.S. Constitution

  • Mentions specific clauses (e.g., Article I, III, the Necessary and Proper Clause, due process) that limit absolute governmental powers.

D. Other Arguments

  • Explores sociological implications such as the knowledge class's transfer of power away from traditional legislative rights of the demos.

  • Relates growth of administrative power to expansions in suffrage and participation in governance.

  • Critiques the burdens placed on contemporary governance, stating that administrative regulations are outdated and detrimental to progress.

II. Mischaracterization

A. Alleged Failure to Argue from the U.S. Constitution

  • Hamburger counters Vermeule’s assertion that he doesn’t ground his arguments in U.S. Constitutional law.

B. Alleged Definition of Extralegal as Unauthorized

  • Vermeule misinterprets Hamburger's definition of extralegal, focusing wrongly on unauthorized power.

C. Alleged Doctrinal Errors

  • Hamburger refutes claims of errors in understanding administrative law doctrines.

III. Not a Nutshell

  • Hamburger critiques Vermeule's simplification of his complex arguments and highlights that his book should not read like an introduction or textbook.

IV. Historical Errors

  • Discusses specifics of misrepresented historical facts and clarifications regarding original interpretations of administrative law.

V. Personal Attacks

A. Ad Hominems

  • Hamburger addresses personal attacks and clarifies he lacks misunderstandings regarding administrative law.

B. Accusations of Extremism

  • He refutes claims that his arguments could delegitimize the administrative state and criticizes the tone of Vermeule's review.

C. Policing Dissent

  • Hamburger notes the broader implications of Vermeule's stance as a chilling effect on scholarly debate regarding administrative power.

Conclusion

  • Hamburger emphasizes the dire implications of administrative power and the necessity for nuanced dialogue about the constitutional limits of governance, refuting Vermeule's characterization.

  • Calls for an honest examination of the arguments rather than personal attacks or mischaracterizations.