Thanks to a current Lawyers Guns & Money thread, I’ve learned that SovCit thinking exists in the heart of the legal academy, exemplified by a book titled Is Administrative Law Unlawful? just published by Philip Hamburger. Professor Hamburger, to my dismay, holds a named chair at my own law school. His book is the subject of a devastating review with a snappy title: No, written by Adrian Vermeule, a Harvard Law professor.
I’m going to quote extensively from the review.
Philip Hamburger has had a vision, a dark vision of lawless and unchecked power. He wants us to see that American administrative law is “unlawful” root-and branch, indeed that it is tyrannous -- that we have recreated, in another guise, the world of executive “prerogative” that would have obtained if James II had prevailed, and the Glorious Revolution never occurred. Administrative agencies, crouched around the President’s throne, enjoy extralegal or supralegal power; the Environmental Protection Agency, with its administrative rulemaking and combined legislative, executive and judicial functions, is a modern Star Chamber; Chevron [the current leading Supreme Court case holding that judges should generally defer to the expertise of administrative agencies when they act within the scope of their authority] is a craven form of judicially licensed executive tyranny, a descendant of the Bloody Assizes. The administrative state stands outside, and above, the law.
* * *
Hamburger thinks that there are deep unwritten principles of Anglo-American constitutional order, derived from the views of English common-law judges; departures from those principles are “unlawful.”
Hamburger has, in other words, an historically-grounded but entirely substantive and ironically extra-Constitutional vision of the true Anglo-American constitutional order, emphatically with a small-c. That vision is rooted in the historical experience of the common-law judges who resisted * * * the prerogative despotism of the Stuarts. Hamburger’s deepest commitment is to this common-law version of Anglo-American constitutionalism. It is of secondary interest to him whether the written constitutional rules of the United States, as of 1789, correspond to that substantive vision.
Vermeule concludes entertainingly by considering whether Hamburger’s book should be considered: "a kind of constitutional fiction, an oddly skewed but engagingly dystopian vision of the administrative state -- one that illuminates through its very errors and distortions, like a caricature, or the works of Philip K. Dick." He correctly refuses to let Hamburger off the hook:
On further inspection, though, this book is merely disheartening. No, the Federal Trade Commission isn’t much like the Star Chamber, after all. It’s irresponsible to go about making or necessarily-implying such lurid comparisons, which tend to feed the tyrannophobia that bubbles unhealthily around the margins of popular culture, and that surfaces in disturbing forms on extremist blogs, in the darker corners of the Internet. It’s especially irresponsible to go around saying that the administrative state is “unlawful,” whatever that may mean, without understanding what administrative law says, and seemingly with little idea about what exactly is being attacked -- ***. Trying to tear down the intellectual props of the administrative state, without understanding exactly what one is tearing down or what the consequences of doing so would really be, is an act of practical interest but no theoretical interest, like a child wrecking a sculpture by Jeff Koons. Some admire Koons’s work, some detest it, but the child isn’t in a position to understand why it might be detestable, and the act is purely destructive, with no illuminating import.
(emphasis in the last quote is mine)
I think we should bend every effort to make Professor Hamburger's work available to SovCit litigants. They will be delighted to have support for their ideas from a professor at Columbia Law School (I cower in shame), and the judicial reaction will be instructive for all concerned.
Edit: various spurious articles deleted, and responsibility for emphasis added. Many thanks to
Realist Reality Check!