Administrative Power and Preogative Power and Absolute Power Explained

05 Oct

The latest edition of Imprimis from Hillsdale College just arrived and I it is even better than most, as derived from a speech to the College from Philip Hamburger who is a lauded professor from Columbia Law School, but has taught law at Univ. Chicago Law, Univ of VA Law, Northwestern Law, etc.

Imprimis is always excellent.  This piece is better than excellent.  I’ll excerpt it and get out of the way, encouraging you to read the whole thing.  It’s not long.  And there is nothing I can add to what the distinguished professors says.  Every American needs to recognize that ceding power to the unaccountable administrative state is nothing new, and the consequences are devastating to the individual and the state itself.  I also encourage you to subscribe to this free monthly.

Here are some excerpts:

Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all its complexity. From this perspective, the Framers of the Constitution could not have anticipated it and the Constitution could not have barred it. What I will suggest, in contrast, is that administrative power is actually very old. It revives what used to be called prerogative or absolute power, and it is thus something that the Constitution centrally prohibited.


In a way we can think of administrative law as a form of off-road driving. The Constitution offers two avenues of binding power—acts of Congress and acts of the courts. Administrative acts by executive agencies are a way of driving off-road, exercising power through other pathways. For those in the driver’s seat, this can be quite exhilarating. For the rest of us, it’s a little unnerving.

The Constitution authorizes three types of power, as we all learned in school—the legislative power is located in Congress, executive power is located in the president and his subordinates, and the judicial power is located in the courts. How does administrative power fit into that arrangement?

The conventional answer to this question is based on the claim of the modernity of administrative law. Administrative law, this argument usually goes, began in 1887 when Congress created the Interstate Commerce Commission, and it expanded decade by decade as Congress created more such agencies.


After absolute power was defeated in England and America, it circled back from the continent through Germany, and especially through Prussia. There, what once had been the personal prerogative power of kings became the bureaucratic administrative power of the states. The Prussians were the leaders of this development in the 17th and 18th centuries. In the 19th century they became the primary theorists of administrative power, and many of them celebrated its evasion of constitutional law and constitutional rights.

This German theory would become the intellectual source of American administrative law. Thousands upon thousands of Americans studied administrative power in Germany, and what they learned there about administrative power became standard fare in American universities. At the same time, in the political sphere, American Progressives were becoming increasingly discontent with elected legislatures, and they increasingly embraced German theories of administration and defended the imposition of administrative law in America in terms of pragmatism and necessity.

That’s as far as I can excerpt because I don’t want to rip Hillsdale or the professor off, but only begins to scratch the surface of what the professor was saying.  Go read the whole thing and arm yourself with the ammunition you need to discuss this with your friends and foes. It’s really good stuff.  I find that last part about how American progressives learned the power of the administrative state and how our universities embraced the notion quite revealing.  It explains a lot.

Go read the whole thing.  And subscribe to Imprimis for free.  It’s always worth the 10 minutes it takes to read it.  (OK, 15 minutes for me as I am a slow reader.  But I call this internally disgesting content.)  You’ll be smarter than your friends because of it.


Posted by on October 5, 2014 in politics


2 responses to “Administrative Power and Preogative Power and Absolute Power Explained

  1. Chillingworth

    October 6, 2014 at 11:03 am

    I read this recently, too (when my Imprimis came in the mail). I agree, interesting and provocative thesis.

    Does he have any chance of making headway? (In other words, isn’t it too late to repeal the bureaucracy or declare it unconstitutional?) Well, it seems like an impossibly uphill battle at this point, but then I bet so did some of the loonier liberal ideas when they were first introduced in American legal academia decades ago. If he can change the ideas, he can change the world. This could be the first step.

    • P. Henry Saddleburr

      October 6, 2014 at 5:34 pm

      I’m sure he is outnumbered and scorned at the places he works, as they are all liberal bastions, but perhaps he can influence the next generation. We slowly and incrementally slid into this Ameritopia without much resistance as those of us who heard the daily accounts of liberal lunacy being proposed as policy scoffed at the notion that they’d actually get traction.

      And then today the Supreme Court says…….SURE……marriage is anything you want it to be. Gay marriage is only the first step.


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