"Confronting the Administrative Threat" by Philip Hamburger and Tony Mills (2017)

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"Confronting the Administrative Threat" (2017) is the second episode of The Future of the Administrative State, a six-episode podcast series produced by RealClearPolicy. In this episode, host and RealClearPolicy editor Tony Mills interviews Philip Hamburger, an American law professor and author of books including Is Administrative Law Unlawful? (2014) and The Administrative Threat (2017). During the interview, Hamburger argues that the administrative state violates the constitutional principle of separation of powers, threatens civil liberties including the right to due process, and undermines the ability of citizens to have a meaningful say in politics and public policy. Hamburger also proposes a variety of solutions to address these criticisms.[1][2][3]

HIGHLIGHTS
  • Authors: Philip Hamburger, interviewed by Tony Mills
  • Source: The Future of the Administrative State, a podcast series hosted by Tony Mills and published by RealClearPolicy, July 6, 2017
  • Abstract: The following description of this interview accompanies the podcast episode on SoundCloud: "The Future of the Administrative State is a weekly podcast, hosted by RealClearPolicy editor Tony Mills, that explores the virtues and vices of administrative power in the era of Trump. In this second episode, Tony talks with Columbia Law School’s Philip Hamburger, author of 'Is Administrative Law Unlawful?' and 'The Administrative Threat'. In a discussion that touches on the monarchical concept of absolute power and German political philosophy, Hamburger explains why he thinks the administrative state not only violates the separation of powers, but also threatens Americans' civil liberties."[2]

    • Authors

    Philip Hamburger

    Philip Hamburger is an American lawyer and professor. As of December 2017, Hamburger was the Maurice and Hilda Friedman Professor of Law at Columbia Law School in New York City. According to his faculty profile page on the Columbia Law School website, Hamburger studies "constitutional law and its history" and "works on many topics, including religious liberty, freedom of speech, academic censorship, judicial review, the office and duty of judges, administrative power, and the early development of liberal thought."[3]

    Below is a summary of Hamburger's education and career:[3]

    • Academic degrees:
      • B.A. (1979), Princeton University, Princeton, New Jersey
      • J.D. (1982), Yale Law School, New Haven, Connecticut
    • Law professor and legal scholar
    • Former practicing attorney in business and corporate tax law

    Tony Mills

    Tony (M. Anthony) Mills is an American writer and editor. As of March 2018, he worked as the editor for RealClearPolicy. He hosted the 2017 podcast series The Future of the Administrative State. Mills previously worked as an editor for Big Questions Online and as an associate editor for The New Atlantis. Below is a summary of Mills' education and career:[4]

    • Academic degrees:
      • B.A./M.A., Northwestern University
      • M.A., University of Notre Dame
      • Ph.D., University of Notre Dame
    • 2016 - Present: Editor, RealClearPolicy
    • 2015-2017: Editor, Big Questions Online
    • 2015-2017: Associate editor, The New Atlantis

    "Confronting the Administrative Threat"

    During the interview, Hamburger explains some of the arguments developed in his writings, in particular the 2014 book Is Administrative Law Unlawful? Hamburger claims that the administrative state violates the constitutional principle of separation of powers, threatens civil liberties including the right to due process, and undermines the ability of citizens to have a meaningful say in politics and public policy. On this last point, Hamburger argues that the administrative state empowers a distinct knowledge class to make important political and policy decisions, largely unchecked and unsupervised, at the expense of citizens' voting power and the power of the legislature and the judiciary.[1][2]

    Near the end of the interview, Mills asks Hamburger to describe his proposed solutions to these problems. Below is a transcript of that portion of the interview:

    “
    PHILIP HAMBURGER: The greatest dilution of voting rights is the administrative state.


    TONY MILLS: What do you think can or should be done to address that, to rectify that wrong? And, stepping back, thinking more broadly again about the state of the administrative state so to speak, what’s called for? Is it reform, radical reform, revolution? What do you see as the prescription?

    PHILIP HAMBURGER: So, I tend to be a fairly moderate, mild-mannered guy. I think we have to get rid of the administrative state, but I think we can do it in a very reasonable way. The first step is exactly what we’re doing right here, simply to talk about it. When someone tells you about the intelligible principle test, one should just laugh, and just know that it’s a fiction. Call their bluff. When someone says you get review in courts, particularly when a judge tells you that, you should laugh, and point out that no, in fact, in courts, the judges are biased when they hear administrative cases and they deny you the right to a jury and to due process. The first response should be candor, and that will be very refreshing and will go a long way to fixing this.

    Now, of course, there’s more. It would be nice if Congress were to pass a separation of powers act and if it were to abolish some ALJs and switch their power into a few new district court judges.

    TONY MILLS: ALJs being the administrative law judges.

    PHILIP HAMBURGER: Administrative law judges, that’s right. There aren’t that many of them—you know, for example, at the SEC [note: Securities and Exchange Commission] there are only five administrative law judges, and some of them have been accused of fairly serious bias. So, it would not be very expensive simply to take them out of the budget, create five new district court judges, and see what happens. And if the sky doesn’t fall, do it at another agency, and so forth. This can be done step-by-step in very moderate ways.

    Now in addition, I think the Trump administration, or any administration, could simply tell its agencies one-by-one to submit their regulations to Congress, for Congress to adopt or not. And, if an agency doesn’t get their statute within a certain number of months, they should just have their budget cut by five percent, and that will get their attention, and they’ll get it done. It will motivate them.

    What’s more, federal lawyers, I mean you think about all the government lawyers who go into court and ask for deference on the facts and on the law; they are participating in a violation of due process, and they should think twice about that, that leads to certain ethics problems and perhaps something worse.

    And the judges themselves should worry about this. The judges in a sense have created much of this problem, they are a backstop against unlawful power, and yet they just bend over backwards to defend the administrative state. If they care about the reputation of the courts, they have to reconsider that. They should not be biased in favor of any party, let alone systematically biased in favor of the government whenever it acts administratively. And, they should not be denying jury rights. …

    I don’t expect each part of the government to fully do its job. That’s unrealistic. But we can expect some of them to do some of their job some of the time. …

    And of course, there’s something else, which is litigation, and I think we’re increasingly going to see serious litigation on this, not just defending against regulation one happens not to like, like EPA [note: Environmental Protection Agency] regulations and things like that, but regulation challenging the very heart of the administrative state. There’s no reason for the government to be acting unconstitutionally. (27:38 - 31:23)[5]

    		”

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 RealClearPolicy, "Confronting the Administrative Threat," July 6, 2017
    2. ↑ 2.0 2.1 2.2 RealClearPodcasts, "Episode 2: Confronting the Administrative Threat," July 6, 2017
    3. ↑ 3.0 3.1 3.2 Columbia Law School, "Philip Hamburger," accessed December 11, 2017
    4. ↑ LinkedIn, "Tony Mills," accessed March 17, 2018
    5. ↑ Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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