Will Edwinson

Author & Storyteller

Administrative Law (Rulers Law) vs. Legislative Law (People’s Law)

U. S. FlagWill Edwinson PhotoA few days ago, my friend Rube, in one of his guest blog posts, touched a little bit on ruler’s law and people’s law.  I’d like to expand on that a little bit.  I recently read an article written by Dr.  Phillip Hamburger in the Imprimis newsletter put out by Hillsdale College.  He is the Maurice and Hilda Friedman Professor of Law at Columbia Law School. He received his B.A. from Princeton University, and his J.D. from Yale.

He has taught at the University of Chicago Law School, George Washington University Law School, University of Virginia Law School. and Northwestern Law school.  It’s my belief that some of these schools have their roots deeply planted in Progressive liberalism, so given those circumstances, I find his comments very enlightening.

Mr. Hamburger started his piece by defining the difference between administrative law and legislative law.  The Constitution authorizes three types of power, executive, legislative, and judicial.  Executive power resides with the President and subordinates in his administration; legislative power rests with the Congress, and judicial power belongs to the courts (but of course, you all know that).  🙂

He debunked the claim by modern Progressives that administrative law had its beginning in the 19th and 20th centuries in order to deal with the problems of modern society;  something  the Progressives say the Framers of the Constitution  could not have anticipated, so the Constitution could not have barred it.  But…he asks everyone to read the Constitution.

It says: “All legislative powers herein granted shall be vested in a Congress of the United States.”  He said the word “all” was not placed there by accident.  The Framers understood that delegation of power had been a problem in English constitutional history, and the word “all” was put into our Constitution precisely for the purpose of barring legislative delegation.  So if I understand  Mr. Hamburger correctly,   administrative law, more correctly defined as administrative power, goes back several centuries beyond those of the 19th and 20th.

What exactly is administrative law, or power?  In the case of U.S. administrative law, simply put, it is made up of binding edicts put forth through government agencies that come, not through legislative law, but through regulations written by a particular agency that bars, or orders, a particular activity.   These agencies, in a sense, have replaced legislative law, and have taken upon themselves the power of legislator, prosecutor, and executioner; thus, in effect,  combining all three Constitutional branches of government, and places this power within the jurisdiction of these government bureaucratic agencies. In other words,  this is supra-law, which is explicitly barred by the Constitution. The underlying conceptual justification for supra-law being: necessity.  Necessity, according to the proponent of administrative law, needs no law.

We The People

Procedurally, he says, administrative adjudication evades almost all of the rights guaranteed under the Constitution.  It subjects Americans  to adjudication without real judges, without protection from self-incrimination. Like the prerogative courts of olde, he says administrative courts substitutes inquisitorial process for due process of law.  I find this not outside the realms of reality.  A couple of cases I followed in Idaho a number of years ago were more like inquisitions than cases of due process.

The Constitution offers two roadways or avenues of the binding power of law —acts of Congress and acts of the Courts.  The executive branch was set up to  enforce the laws and decisions of these two branches. Professor Hamburger compares administrative law, or power, whichever one chooses to call it, to that of off-road driving.  Administrative acts by executive agencies and Executive Orders are a way of driving off the main road (acting outside the law) on different trails to reach their destination.

As I mentioned at the beginning of this piece, the proponents of administrative law, or power, defend it as something needed for these so-called modern times, when in fact, it is a product of human nature in quest of power, and is old as time itself.   It’s referred to as the prerogative power of kings, and it’s very dangerous.  If unchecked it’s the pathway to absolutism and tyranny.

Mr. Hamburger says that one standard defense of administrative power is that Congress delegated this power to them.  But as was pointed out earlier, the Constitution, by virtue of its language, prohibits this delegation; but because much of Congress, today, is made up Constitution illiterates, they  defer to these edicts because they don’t know any better, and helped to create them.

I remember years ago during Justice Clarence Thomas’ Supreme Court hearings, a then, dopey Senator who has since moved up in the world, and despite his elevated stature, is still, in my estimation, a dope who is widely known for his stupid remarks, asked the prospective justice how he would rule on law passed by the Congress. He said to the prospective justice, and I paraphrase: You understand, don’t you Mr. Thomas that Congress only authorizes  laws and their intent,  and then sends them on to the various bureaucracies to write the regulations.

The Judiciary is not blameless in this scam either.  They have not made any fuss about their power being usurped by these administrative bureaucrats. The constitutional history of the last  thousand years in common law countries has repeatedly moved back and forth from different forms ruler’s law, to people’s law, and now it looks as though it might he moving back to ruler’s law in this country.   In the old days kings bound their subjects largely through laws passed by parliament, but eventually  moved to exercising their prerogative power through proclamations or decrees (regulations, to put it into a more modern vernacular).

Does this sound just a bit familiar? The same thing is happening here in the U.S. through regulatory rules.  It began with the establishment of the Interstate Commerce Commission in 1887 to regulate what were deemed unfair rate practices from state to state by the railroads.  While proponents made it sound like a good idea at the time, administrative law has grown during the following 127 years, into a freedom eating monster that is destined to completely consume us.

The IRS, OSHA,  and BLM are just three examples of this abuse of power. Our acting president is writing new regulations and waivers for existing law daily with the presidential prerogative he has taken unto himself; and he enforces these edicts through the administrative courts(regulatory agencies)causing untold anguish and expense to be reeked upon private citizens and businesses .

Professor Hamburger went on to elaborate much more about the follies and dangers of administrative law; too much to address in this blog, but I will say this much.  I have witnessed a tremendous expansion of administrative law in this country since 1946, and exponentially, since 1964, when negative politics really got a foothold with the destruction of Senator Barry Goldwater.  He tried to bring the danger of such power to the attention of the America people, and his opponents literally destroyed him.

I believe the Framers of our Constitution were inspired through God’s help, and the U.S. Constitution  is the greatest document ever conceived by Man; but as James Madison said,  and again, I paraphrase: This Constitution will stand only if the people adhere to the principles stated therein.  We have strayed from those principles during the last 100 years, and I hold little hope that we will return to those principles until we suffer under absolute law(tyranny), which in my estimation, is less than one generation away.

LouIsa Cover PhotoNow, on the lighter side, I’d like to invite you to visit the “Books” page, or the “In The Works” page at the top of this website and read some excerpts from my new novel, LouIsa—Iron Dove Of The Frontier.   It will be on sale later this Fall.








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