Is Administrative Law Unlawful?

Author: Philip Hamburger

Publisher: University of Chicago Press

ISBN: 022611645X

Category: Law

Page: 648

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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.

The Administrative Threat

Author: Philip Hamburger

Publisher: Encounter Books

ISBN: 159403950X

Category: Political Science

Page: 68

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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.

Law and Judicial Duty

Author: Philip HAMBURGER

Publisher: Harvard University Press

ISBN: 0674038193

Category: Law

Page: 704

View: 5256

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Philip Hamburger’s Law and Judicial Duty traces the early history of what is today called "judicial review." The book sheds new light on a host of misunderstood problems, including intent, the status of foreign and international law, the cases and controversies requirement, and the authority of judicial precedent. The book is essential reading for anyone concerned about the proper role of the judiciary.

Creating the Administrative Constitution

The Lost One Hundred Years of American Administrative Law

Author: Jerry L. Mashaw

Publisher: Yale University Press

ISBN: 030018347X

Category: Law

Page: 448

View: 596

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This groundbreaking book is the first to look at administration and administrative law in the earliest days of the American republic. Contrary to conventional understandings, Mashaw demonstrates that from the very beginning Congress delegated vast discretion to administrative officials and armed them with extrajudicial adjudicatory, rulemaking, and enforcement authority. The legislative and administrative practices of the U.S. Constitution’s first century created an administrative constitution hardly hinted at in its formal text. Beyond describing a history that has previously gone largely unexamined, this book, in the author’s words, will "demonstrate that there has been no precipitous fall from a historical position of separation-of-powers grace to a position of compromise; there is not a new administrative constitution whose legitimacy should be understood as not only contestable but deeply problematic."

The Administrative State

A Study of the Political Theory of American Public Administration

Author: Dwight Waldo

Publisher: Routledge

ISBN: 1351486330

Category: Political Science

Page: 251

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This classic text, originally published in 1948, is a study of the public administration movement from the viewpoint of political theory and the history of ideas. It seeks to review and analyze the theoretical element in administrative writings and to present the development of the public administration movement as a chapter in the history of American political thought.The objectives of The Administrative State are to assist students of administration to view their subject in historical perspective and to appraise the theoretical content of their literature. It is also hoped that this book may assist students of American culture by illuminating an important development of the first half of the twentieth century. It thus should serve political scientists whose interests lie in the field of public administration or in the study of bureaucracy as a political issue; the public administrator interested in the philosophic background of his service; and the historian who seeks an understanding of major governmental developments.This study, now with a new introduction by public policy and administration scholar Hugh Miller, is based upon the various books, articles, pamphlets, reports, and records that make up the literature of public administration, and documents the political response to the modern world that Graham Wallas named the Great Society. It will be of lasting interest to students of political science, government, and American history.

Thinking Like a Terrorist

Insights of a Former FBI Undercover Agent

Author: Mike German

Publisher: Potomac Books, Inc.

ISBN: 1597970255

Category: Political Science

Page: 239

View: 4986

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How terrorism works and why

Separation of Church and State

Author: Philip HAMBURGER

Publisher: Harvard University Press

ISBN: 0674038185

Category: Law

Page: 528

View: 9688

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In a powerful challenge to conventional wisdom, Philip Hamburger argues that the separation of church and state has no historical foundation in the First Amendment. The detailed evidence assembled here shows that eighteenth-century Americans almost never invoked this principle. Although Thomas Jefferson and others retrospectively claimed that the First Amendment separated church and state, separation became part of American constitutional law only much later. Hamburger shows that separation became a constitutional freedom largely through fear and prejudice. Jefferson supported separation out of hostility to the Federalist clergy of New England. Nativist Protestants (ranging from nineteenth-century Know Nothings to twentieth-century members of the K.K.K.) adopted the principle of separation to restrict the role of Catholics in public life. Gradually, these Protestants were joined by theologically liberal, anti-Christian secularists, who hoped that separation would limit Christianity and all other distinct religions. Eventually, a wide range of men and women called for separation. Almost all of these Americans feared ecclesiastical authority, particularly that of the Catholic Church, and, in response to their fears, they increasingly perceived religious liberty to require a separation of church from state. American religious liberty was thus redefined and even transformed. In the process, the First Amendment was often used as an instrument of intolerance and discrimination.

Liberal Suppression

Section 501(c)(3) and the Taxation of Speech

Author: Philip Hamburger

Publisher: University of Chicago Press

ISBN: 022652213X

Category: Law

Page: 432

View: 2238

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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.

Lawless

The Obama Administration's Unprecedented Assault on the Constitution and the Rule of Law

Author: David E. Bernstein

Publisher: Encounter Books

ISBN: 1594038333

Category: History

Page: 190

View: 3385

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InLawless, George Mason University law professor David E. Bernstein provides a lively, scholarly account of how the Obama administration has undermined the Constitution and the rule of law. Lawless documents how President Barack Obama has presided over one constitutional debacle after another--Obamacare; unauthorized wars in the Middle East; attempts to strip property owners, college students, religious groups, and conservative political activists of their rights; and many more. Violating his own promises to respect the Constitution’s separation of powers, Obama brazenly ignores Congress when it won’t rubber-stamp his initiatives. "We can’t wait,” he intones when amending Obamacare on the fly or signing a memo legalizing millions of illegal immigrants, as if Congress doing its job as a coequal branch of government somehow permits the president to rule like a dictator, free from the Constitution’s checks and balances. President Obama has also presided over the bold and rampant lawlessness of his underlings. Harry Truman famously said, "The buck stops here.” When confronted with allegations that his administration’s actions are illegal, Obama responds, "So sue me.” Lawless shows how President Obama has betrayed not only the Constitution but also his own stated principles. In the process, he has done serious and potentially permanent damage to our constitutional system. As America swings into election season, it will have to grapple with finding a president who can repair Obama’s lawless legacy.

Bureaucracy in America

The Administrative State’s Challenge to Constitutional Government

Author: Joseph Postell

Publisher: University of Missouri Press

ISBN: 0826273785

Category: Political Science

Page: 416

View: 2651

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The rise of the administrative state is the most significant political development in American politics over the past century. While our Constitution separates powers into three branches, and requires that the laws are made by elected representatives in the Congress, today most policies are made by unelected officials in agencies where legislative, executive, and judicial powers are combined. This threatens constitutionalism and the rule of law. This book examines the history of administrative power in America and argues that modern administrative law has failed to protect the principles of American constitutionalism as effectively as earlier approaches to regulation and administration.

Administrative Law

Text and Materials

Author: Mark Elliott,Jason N. E. Varuhas

Publisher: Oxford University Press

ISBN: 0198719469

Category:

Page: 824

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Administrative Law Text and Materials combines carefully selected extracts from key cases, articles and other sources with detailed commentary. An invaluable resource for undergraduates studying administrative law, it provides truly comprehensive coverage of the subject.

Law’s Abnegation

Author: Adrian Vermeule

Publisher: Harvard University Press

ISBN: 0674974719

Category: Law

Page: 208

View: 5718

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Adrian Vermeule argues that the arc of law has bent steadily toward deference to the administrative state, which has greater democratic legitimacy and technical competence to confront issues such as climate change, terrorism, and biotechnology. The state did not shove lawyers and judges out of the way; they moved freely to the margins of power.

Everyday Law on the Street

City Governance in an Age of Diversity

Author: Mariana Valverde

Publisher: University of Chicago Press

ISBN: 0226921913

Category: Law

Page: 272

View: 4750

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Toronto prides itself on being “the world’s most diverse city,” and its officials seek to support this diversity through programs and policies designed to promote social inclusion. Yet this progressive vision of law often falls short in practice, limited by problems inherent in the political culture itself. In Everyday Law on the Street, Mariana Valverde brings to light the often unexpected ways that the development and implementation of policies shape everyday urban life. Drawing on four years spent participating in council hearings and civic association meetings and shadowing housing inspectors and law enforcement officials as they went about their day-to-day work, Valverde reveals a telling transformation between law on the books and law on the streets. She finds, for example, that some of the democratic governing mechanisms generally applauded—public meetings, for instance—actually create disadvantages for marginalized groups, whose members are less likely to attend or articulate their concerns. As a result, both officials and citizens fail to see problems outside the point of view of their own needs and neighborhood. Taking issue with Jane Jacobs and many others, Valverde ultimately argues that Toronto and other diverse cities must reevaluate their allegiance to strictly local solutions. If urban diversity is to be truly inclusive—of tenants as well as homeowners, and recent immigrants as well as longtime residents—cities must move beyond micro-local planning and embrace a more expansive, citywide approach to planning and regulation.

Liberty's Nemesis

The Unchecked Expansion of the State

Author: Dean Reuter,John Yoo

Publisher: Encounter Books

ISBN: 1594038384

Category: Political Science

Page: 576

View: 3937

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If there has been a unifying theme of Barack Obama’s presidency, it is the inexorable growth of the administrative state. Its expansion has followed a pattern: First, expand federal powers beyond their constitutional limits. Second, delegate those powers to agencies and away from elected politicians in Congress. Third, insulate civil servants from politics and accountability. Since its introduction in American life by Woodrow Wilson in the 20th Century, the administrative state’s has steadily undermined democratic self-government, reduced the sphere of individual liberty, and burdened the free market and economic growth. In Liberty’s Nemesis, Dean Reuter and John Yoo collect the brightest political minds in the country to expose this explosive, unchecked growth of power in government agencies ranging from health care to climate change, financial markets to immigration, and more. Many Americans have rightly shared the Founders’ fear of excessive lawmaking, but Liberty’s Nemesis is the first book to explain why the concentration of power in administrative agencies in particular is the greatest – and most overlooked – threat to our liberties today. If we fail to curb it, our constitutional republic might easily devolve into something akin to the statist governments of Europe. President Obama’s ongoing efforts to encourage just such a devolution, and the problems his administration faces as a consequence, present a critical opportunity to defend the original vision of the Constitution.

Matters of State

A Political Excursion

Author: Philip Hamburger

Publisher: G K Hall & Company

ISBN: 9780783894485

Category: History

Page: 259

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A collection by the New Yorker columnist discusses how the presidential inaugurations of presidents from Truman and Eisenshower to Reagan and Clinton reflect an orderly transfer of power.

Administrative Law of the European Union, Its Member States and the United States

A Comparative Analysis

Author: René Seerden,F. A. M. Stroink

Publisher: Intersentia nv

ISBN: 9050952518

Category: Law

Page: 360

View: 5498

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This book offers a comparative introduction, by editors and native authors, to the most important aspects of administrative law in various EU Member States (Belgium, France, Germany, the Netherlands, the United Kingdom), at the level of the EU and in the United States of America. It aspires to contribute to the 'transboundary' understanding of different regimes related to actions and decisions of the administration. For the purpose of the use of this book in education, research and legal practice, the contributions to the book are all based on one and the same format, thus making it more accessible for its readers. The main items of the format are. . What is administrative law? . Who is administrating? . Which instruments are available to the administration? . Which (formal) rules/principles (written or unwritten) govern administrative actions? . Access to (administrative) courts against administrative actions/decisions. . Recent and future developments and conclusions. The final chapter offers comparative remarks by the editors.

Tocqueville's Nightmare

The Administrative State Emerges in America, 1900-1940

Author: Daniel R. Ernst

Publisher: Oxford University Press

ISBN: 0199920877

Category: Law

Page: 272

View: 3979

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In the 1830s, the French aristocrat Alexis de Tocqueville warned that "insufferable despotism" would prevail if America ever acquired a national administrative state. Today's Tea Partiers evidently believe that, after a great wrong turn in the early twentieth century, Tocqueville's nightmare has come true. In those years, it seems, a group of radicals, seduced by alien ideologies, created vast bureaucracies that continue to trample on individual freedom. In Tocqueville's Nightmare, Daniel R. Ernst destroys this ahistorical and simplistic narrative. He shows that, in fact, the nation's best corporate lawyers were among the creators of "commission government" that supporters were more interested in purging government of corruption than creating a socialist utopia, and that the principles of individual rights, limited government, and due process were built into the administrative state. Far from following "un-American" models, American state-builders rejected the leading European scheme for constraining government, the Rechtsstaat (a state of rules). Instead, they looked to an Anglo-American tradition that equated the rule of law with the rule of courts and counted on judges to review the bases for administrators' decisions. Soon, however, even judges realized that strict judicial review shifted to courts decisions best left to experts. The most masterful judges, including Charles Evans Hughes, Chief Justice of the United States from 1930 to 1941, ultimately decided that a "day in court" was unnecessary if individuals had already had a "day in commission" where the fundamentals of due process and fair play prevailed. This procedural notion of the rule of law not only solved the judges' puzzle of reconciling bureaucracy and freedom. It also assured lawyers that their expertise in the ways of the courts would remain valuable, and professional politicians that presidents would not use administratively distributed largess as an independent source of political power. Tocqueville's nightmare has not come to pass. Instead, the American administrative state is a restrained and elegant solution to a thorny problem, and it remains in place to this day.

Administrative Law in Hong Kong

Author: Stephen Thomson

Publisher: Cambridge University Press

ISBN: 1108244033

Category: Law

Page: N.A

View: 7992

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A new text providing the most comprehensive and up-to-date coverage of administrative law in Hong Kong. It includes original commentary on judicial review, administrative tribunals, the Ombudsman, Commissions of Inquiry, the Legislative Council Redress System, the Independent Commission Against Corruption, the Equal Opportunities Commission, the Privacy Commissioner for Personal Data, the Audit Commission, subsidiary legislation and more. Drawing on law, policy and practice, it offers detailed analysis while maintaining accessibility, charting developments as Hong Kong continues to evolve as a Special Administrative Region of the People's Republic of China. Administrative Law in Hong Kong is essential reading for practitioners, academics and students with an interest in public law, governance and administration.

The Language of Statutes

Laws and Their Interpretation

Author: Lawrence Solan

Publisher: University of Chicago Press

ISBN: 9780226767963

Category: Language Arts & Disciplines

Page: 288

View: 3626

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Pulling the rug out from debates about interpretation, The Language of Statutes joins together learning from law, linguistics, and cognitive science to illuminate the fundamental issues and problems in this highly contested area. Here, Lawrence M. Solan argues that statutory interpretation is alive, well, and not in need of the major overhaul that many have suggested. Rather, he suggests, the majority of people understand their rights and obligations most of the time, with difficult cases occurring in circumstances that we can predict from understanding when our minds do not work in a lawlike way. Solan explains that these cases arise because of the gap between our inability to write crisp yet flexible laws on one hand and the ways in which our cognitive and linguistic faculties are structured on the other. Making our lives easier and more efficient, we’re predisposed to absorb new situations into categories we have previously formed—but in the legislative and judicial realms this can present major difficulties. Solan provides an excellent introduction to statutory interpretation, rejecting the extreme arguments that judges have either too much or too little leeway, and explaining how and why a certain number of interpretive problems are simply inevitable.