by Mitch Kokai
Senior Political Analyst, John Locke Foundation
Every day the headlines bring news of the Obama administration’s rule by executive edict. From the regularization of illegal-immigrant DREAMers, to the rewriting of Obamacare and of federal drug laws, to the imposition of onerous environmental laws by agency regulation, the administration exercises or threatens to exercise executive power to write and rewrite and waive the duly enacted law of the land. Now Obama threatens to regularize the immigration status of millions more illegal immigrants by decree as well.
The practice of rule by decree is of dubious constitutionality, to say the least, and Obama is extending it to the breaking point. While of dubious constitutionality, the practice is not without precedent. The precedent, however, is the prerogative power claimed in the past by the British king. It is the power against which the British revolted in the Glorious Revolution of 1688 and against which we revolted in 1776.
Now comes Professor Philip Hamburger with a serious work of legal scholarship on the return of the prerogative power to our government. The power returns in the dry-as-dust form of “administrative law,” reflecting the agency form of government. Administrative law has not been a matter of substantial intellectual controversy for a long time. Professor Hamburger comes not to bring peace, but rather a sword of understanding and ultimately of action. He means for us to understand what we have lost or are losing.
To adapt the adage misattributed to Trotsky that is achieving the status of a cliché, you may not be interested in administrative law, but administrative law is interested in you. Hamburger declares that although administrative law is unrecognized by the Constitution, it “has become the government’s primary mode of controlling Americans.”