September 17, 2014

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Today is devoted to items about “the administrative state.” This is the form that tyranny takes in the United States.

 

Pickerhead owns a business that fabricates precision metal parts for electronic enclosures. Shears, punch presses, and press brakes all use thousands of pounds of force to work sheets of stainless, aluminum, and cold rolled steel. So there are many opportunities for people to be seriously hurt. I learned the business  working as CFO for a company in Chicago that owned five factories in the country. Headquarters was at our plant in Elk Grove Village near O’Hare airport. Every calendar quarter someone was hurt. The most common injuries were shortened or lost fingers. Happy to say, the most serious injury in 34 years of operations of my company was three fingers shortened by  fractions of an inch. Some of the reasons for this success are passive because we only buy the safest machinery. Other reasons are more active. For example, we often decline to bid on jobs we think pose safety hazards. 

The result is the company goes for years between claims for Worker’s Compensation insurance, And the experience modifier for those insurance premiums is an excellent 65%. That means instead of $100,000, the premium paid is only $65,000 because of that good safety record  You would think OSHA (Occupational Safety and Hazard Administration) would be pleased with the record and would want to see how that happens.

 You would think that, but you would be wrong. They do not care. They only want to see if we are using the processes they currently deem to be proper. Results mean nothing. They only care about the process. And that process comes from the administrative state. Yet, many of the things we do to make work safer have nothing to do with those processes.

 

We also have zinc and chrome plating lines. Since those are heavy metals the state is interested in how we deal with waste. Once, when the Virginia water people were in the plant they asked questions about our paint booths. A few months later Virginia air people were in and suggested we might need a permit for the paint booths. They left a questionnaire for us to fill out. We did and two months later they wrote telling us we did need a permit and enclosed it along with a $10,000 fine for operating without the permit we did not know we needed.

 We hired a lawyer to write a couple of pages that said, in effect; “F**k you.” After months of back and forth, we agreed to a meeting at their office in Norfolk. Our lawyer went along so there were two of us. Virginia was represented by six people including an attorney who was late to the meeting and apologized saying she lost track of time walking on the beach.

 They came from Richmond. We could have gone there because Williamsburg is halfway between Norfolk and Richmond. But these people were on a boondoggle while they were saving the world. So they drove for two and a half hours and rented hotel rooms in Virginia Beach. Testimony ensued. The best part was that of the person who calculated the fine. He came up with “hard” number for $8,000 and said the final $2,000 was “arbitrary and capricious on my part.” He really said that!

 The meeting was being recorded and I sat quietly hoping my attorney would let that comment pass into the record without amendment. And he did. Negotiations left the company paying a $1,000 fine. This is a good example of the administrative state. And, mind you, Virginia is supposed to be a state that is good for business.

 

Then there are the worst people in the world – the county staff. Our county board wrote a good ordinance governing uses of land along waterways that run to the Chesapeake Bay. The county staff, though, wrote the enforcing regulations that created an administrative nightmare for homeowners who live along the James River. That led to the most ignorant people you can imagine tramping in backyards trying to pronounce indigenous – an old Indian word that means ‘food for deer.’

 

 

 

Scott Johnson of Power Line starts us off with our lesson on how we came to the American form of tyranny 

You may not be interested in administrative law, but administrative law is interested in you. Administrative law is unrecognized by the Constitution, but, according to Colombia Law School Professor Philip Hamburger, it “has become the government’s primary mode of controlling Americans.” He observes that “administrative law has avoided much rancor because its burdens have been felt mostly by corporations.” This is where you come in: “Increasingly, however, administrative law has extended its reach to individuals. The entire society therefore now has opportunities to feel its hard edge.”

Professor Hamburger’s assessment of the proliferation of administrative law may be an understatement. Formal administrative law — the regulations promulgated by the alphabet soup of federal agencies — dwarfs the laws enacted by Congress. To take one vivid example from the front pages of the news in the Age of Obama, the Affordable Care Act (a/k/a Obamacare) runs for 2,800 pages. Democratic House majority leader Nancy Pelosi famously predicted that we would have to pass the bill to find out what was in it. Pelosi was right in more ways than one. By one count published last year, the regulations implementing the act have consumed 10,000 closely printed pages of the Federal Register, at 30 times the length (in words) of the law passed by Congress. …

 

 

WSJ reviews the book that started the discussion.

In stirring his countrymen to ratify the new Constitution, Alexander Hamilton urged in Federalist No. 70 that “energy in the executive” would be “a leading character in the definition of good government.” It was, he argued, critical to national security and equally “essential to the steady administration of the laws.” But others in Hamilton’s day were less sanguine. George Mason feared that by vesting a president with so much power, “it may happen, at some future day, that he will establish a monarchy, and destroy the republic.”

In our own time, Republicans and Democrats can seem united in their distrust of a powerful executive branch, if for different reasons. Republicans contend that the administrative state, with bureaucracies ranging from the Education Department to the Consumer Financial Protection Bureau, is a bloated, unchecked and almost lawless autocracy. Democrats worry that, in recent years, the president has assumed extraordinary war-making powers and has interfered with the proper functioning of regulatory agencies.

Aggressive assertions of executive power are controversial. But are they unconstitutional? Without hesitation, Columbia Law Professor Philip Hamburger would answer “yes.” In “Is Administrative Law Unlawful?,” Mr. Hamburger looks beyond the usual milestones of American regulatory history—the Interstate Commerce Act of 1887, Roosevelt’s New Deal—to trace the origins and logic of dividing the powers of government and, by so doing, limiting the executive’s reach. …

 

 

Here’s a review from The Weekly Standard.

The administrative state is a modern invention. It was, and remains, a necessity in our complex modern age. Or so goes the argument. 

“The trouble in early times was almost altogether about the constitution of government; and consequently that was what engrossed men’s thoughts,” wrote Woodrow Wilson in his Study of Administration (1887). “The functions of government were simple, because life itself was simple. .  .  . No one who possessed power was long at a loss how to use it.” That all changed—apparently in Wilson’s generation—when “present complexities of trade and perplexities of commercial speculation” posed new challenges for government. 

“In brief,” Wilson wrote, “if difficulties of governmental action are to be seen gathering in other centuries, they are to be seen culminating in our own.” So we need experts: “[W]e have reached a time when administrative study and creation are imperatively necessary to the well-being of our governments saddled with the habits of a long period of constitution-making.” 

Necessary; there is no alternative. As the Supreme Court has declared, “[I]n our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.” 

That is a convenient narrative for the defenders of the administrative state. But it is fanciful. It is not historically accurate. And the justifications—especially the claim of necessity—are not new. Neither are the powers of the administrative state. Indeed, Philip Hamburger, professor of law at Columbia, argues here that it was precisely these justifications and powers that English and American constitutional law developed to protect us against. Not only is the modern administrative state unconstitutional, it is the very thing our Constitution sought to prevent. …

… Administrative law depends on epistemological arrogance, assuming that there is one right answer to a given problem. But our entire society (like all free-market societies) presupposes that there exists a diversity of opinions, objectives, and needs. It is precisely in an “increasingly complex” society that there is no one-size-fits-all answer. 

If the tendency of modernized society is toward freedom or at least social fragmentation, then continual direction by the federal government may actually be inconsistent with modernity.

Maybe humility—and constitutional government—are better after all.

 

 

Scott Johnson again. This time reviewing the book for National Review.

… As Hamburger says repeatedly in this book, administrative law establishes a regime of the kind the United States Constitution was carefully designed to prevent. By his reckoning, we have returned to “the preconstitutional world” of the inglorious reign of James I: Royal edicts are in style, the Star Chamber is in session, and the king is working the outer limits of absolute royal power.

It is a form of government that is, in Hamburger’s view, fundamentally unconstitutional, unlawful, and illegitimate. He has some impressive authority on his side. James Madison famously proclaimed “a political truth of the highest intrinsic value” in Federalist 47: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.” Hamburger concurs, arguing that it may also justly be pronounced the very definition of agency government.

Well, who is Philip Hamburger and why is he saying these things? Hamburger is not some rabble-rouser with thoughts of fame or fortune in mind looking to make a name or attract an audience. Rather, he holds an endowed chair at Columbia Law School. He is a distinguished scholar specializing in legal history. He is the epitome of respectability. His book bears the imprint of an elite academic publisher and it draws on a deep well of original scholarship to address what he characterizes as a leading danger to the future of limited constitutional government.

The book is in substantial part devoted to English legal history. Hamburger recounts how British monarchs claimed a right to issue edicts with the binding force of law and even to impose taxes under their prerogative power. They also established their own courts — the Star Chamber being the most notable example — to enforce their will.

This prerogative power was reformed over time, with legislative power restricted to Parliament and judicial power to the law courts. The courts rejected edicts promulgated by the king with the binding force of law; in 1641, Parliament abolished the Star Chamber and other prerogative tribunals.

Against this backdrop of legal history, the vesting by the U.S. Constitution of “all legislative Powers” in Congress (emphasis added), of “the executive Power” in a president, and of “the judicial Power” in the Supreme Court and the inferior courts established by Congress sparkles with a new eloquence, at least to me. This tripartite division of power among the branches of the government profoundly reflects the Founders’ understanding of the legal history recounted by Hamburger. They meant to lay out in our fundamental law the painful lessons learned in the long development of the English constitution. …

 

 

Another review comes from the Library of Law and Liberty. Sorry this has been so long. But like Kevin Williamson warned in 9/14/14 Pickings in “Consider the Moose”, beware not of ISIS, but of your neighbor telling you how to live.

Philip Hamburger’s Is Administrative Law Unlawful? is a timely and major contribution to the most significant constitutional crisis of our time. As a work of scholarship it will inform and inspire future thinking on the administrative state for years.

This book, however, will greatly contribute to an emerging consensus about the perils of the administrative state, and help shape the constitutional response. Therefore Professor Hamburger’s book may well be the most important book that has been written in decades. Scholars have been denouncing the modern administrative state as incompatible with American constitutionalism for years, but nobody has made the argument as thoroughly and forcefully as Hamburger.

The fundamental thesis of his book is that administrative law is profoundly antithetical to any conception of law, not just the conception of law articulated in the U.S. Constitution. The crisis is not simply a constitutional crisis. It is a crisis of law itself. We risk moving from a nation governed by law to a nation of absolutism – the very absolutism that it took centuries for Britain and America to shed.

Specifically, Hamburger argues that the rise of binding administrative power represents the recurrence of extralegal, supralegal, and consolidated power. Administrative law is extralegal because it is a binding power exercised outside the law. That is, it binds citizens not through the laws and the orders of the courts, “but through other sorts of commands and orders” such as administrative legislation and adjudication. …