Executive Power and Overreach

Philip Hamburger, the Maurice and Hilda Friedman Professor of Law at Columbia Law School, gave some remarks at the Hillsdale College’s Kirby Center centered around the increase in executive power and the power of executive agencies under Republican and Democratic presidencies.

This worrisome trend, which Hamburger called “administrative law,” was supposedly “developed to deal with the problems of modern society.” Yet, in his words, this increase in administrative power “could not have been anticipated by the Constitution.” Although administrative powers are “very old,” Hamburger warned that the checks and balances as well as the separation of powers were “exactly was [what]the Constitution developed…to prohibit absolute power.”

Too often, critics of increased administrative power focus on government benefits, welfare programs and abuses, but he said, “The problem consists of attempts to bind and constrain Americans, legislatively or judicially, through acts other than acts of Congress or of the courts.” He admitted, “Our government is full of puzzles, but none are more serious than administrative power.”

This new administrative power is a “fourth type of power” in addition to the three branches of government, which are the legislative, executive and judicial branches. Where did this all begin? Hamburger surmised it “begins in 1887, when Congress creates the Interstate Commerce Commission” and delegated powers to executive agencies like it. Ever since then, executive agencies have expanded and defenders say such expansion is a “pragmatic response to practical American problems in life” and a result of “indigenous or empirical growth.” This “apology for administrative power,” as Hamburger called it, empowers administrative law that “developed after the Constitution.” Supporters also push the view that opposing the expansion of administrative power “is anti-modern and [it is] quixotic to resist this power.”

But this bureaucratic overreach may not be so modern after all. There was no separation of powers in old Britain, ruled by kings, but merely a “division of power” between the king and Parliament. Under that system of government, Hamburger said, “The executive evades law with administrative power.” It became their “defense, their justification” to enact certain laws and bind their people to royal decrees.

Hamburger pointed out, “Over the past 120 years, the Americans have reestablished the very central powers the U.S. Constitution most essentially forbade.” Now, administrative power “binds Americans not through laws, but through mechanisms.” “Absolutism,” said Hamburger, “has returned.”

He urged, “Read the Constitution, read the first verse” to get that point across. He read the first verse, which says, “All legislative power shall be vested in Congress.” Hamburger said, “None of them can be elsewhere” and that these powers were “put there precisely to” protect against delegation by Congress. Now, “procedural rights” have been used by executive agencies, but had been intended to protect against absolute power. He urged, “One must take back the language of law” to limit the growth of administrative and absolute power.

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