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The History and Danger of Administrative Law

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A Nation Beguiled

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“But there are problems with this conventional history of administrative law. Rather than being a modern, post-constitutional American development, I argue that the rise of administrative law is essentially a re-emergence of the absolute power practiced by pre-modern kings. Rather than a modern necessity, it is a latter-day version of a recurring threat—a threat inherent in human nature and in the temptations of power.”

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Philip Hamburger

Columbia Law School

“Reprinted by permission from Imprimis, a publication of Hillsdale College.”

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PHILIP HAMBURGER 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 Law School. He has also taught at the University of Chicago Law School, the George Washington University Law School, the University of Virginia Law School, and Northwestern Law School. A contributor to National Review Online, he has written for several law reviews and journals, including the American Journal of Legal History, the Supreme Court Review, the Notre Dame Law Review, and the Journal of Law and Politics. He is the author of Separation of Church and State, Law and Judicial Duty, and, most recently, Is Administrative Law Unlawful?

The following is adapted from a speech delivered on May 6, 2014, at Hillsdale College’s Allan P. Kirby, Jr. Center for Constitutional Studies and Citizenship in Washington, D.C., as part of the AWC Family Foundation Lecture Series.

There are many complaints about administrative law—including that it is arbitrary, that it is a burden on the economy, and that it is an intrusion on freedom. The question I will address here is whether administrative law is unlawful, and I will focus on constitutional history. Those who forget history, it is often said, are doomed to repeat it. And this is what has happened in the United States with the rise of administrative law—or, more accurately, administrative power. More

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