SovCit Thinking In the Legal Academy

chancery
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SovCit Thinking In the Legal Academy

Postby chancery » Mon Sep 01, 2014 10:38 pm

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!


chancery
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SovCit Thinking In the Legal Academy

Postby chancery » Mon Sep 01, 2014 10:41 pm

The emphasis in the final quote is my own. I don't know why the "edit" key is greyed out for me when I view my prior post.


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Butterfly Bilderberg
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SovCit Thinking In the Legal Academy

Postby Butterfly Bilderberg » Tue Sep 02, 2014 2:53 am

As an administrative hearing officer I find Professor Hamburger's alarming.

At my agency, anyone raising a SovCit argument in an administrative proceeding is given a hasty opportunity to see how well that argument plays in the judicial system. Few judges share Professor Hamburger's distrust of the agency. After all, Congress saw fit to delegate the statutory interpretation of a complex Code to it.


chancery
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SovCit Thinking In the Legal Academy

Postby chancery » Tue Sep 02, 2014 3:14 am

Vermeule notes that "Hamburger clearly appears to think that there is some special problem about statutory authorizations of the power to impose taxes." No at 19.


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Sam the Centipede
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SovCit Thinking In the Legal Academy

Postby Sam the Centipede » Tue Sep 02, 2014 7:41 am

If Adrian Vermeule's amusing review is fair, Prof. Hamburger's big book is indeed a brand of sovcit-style nonsense.

Vermeuele makes some neat points, one of the more obvious being that administrative law cannot be "unlawful", simply because it is law. Perhaps Hamburger doesn't want to say "unconstitutional" because (Vermeule points out) Hamburger is not referring to the Constitution of 1789 plus amendments. Vermeule says that Hamburger never clearly delineates what he intends by the term "unlawful".

The flavor of sovcittery seems to come from Hamburger's appeal to deep principles of Anglo-American law that he dreams up. But Vermeule points out (I paraphrase...) "wtf, we iz not Stuart England, we had rebels, we haz konstitushun, u iz stoopit dog".

And that reflects a theme that we see so often in these folk: the appeal to an imagined extra-powerful authority, be it their version of history, the Bible, Magna Carta, some imagined version of fundamental or god-given human rights, Emer de Vattel's work, writings of the Founders. They insist that reality must bend to accept their diktats about True Meanings. Here and now is not good enough.

We see that in Apuzzo's burblathon, we see it in the way Gerbil Report fanatics believe there are super-experts in the background who will confirm their conjectures, we see it repeatedly in Darash's belief that he has super-magick powerful paper.

If I have understood one of Vermeule's simple objections to Hamburger's rant, it is that Hamburger treats every non-trivial decision of a government agency as if it were making law, and Hamburger asserts (correctly, I believe) that Congress cannot delegate its lawmaking powers. Vermeule says no, dealing with the details and practicalities of implementation of Congress-generated laws is not lawmaking, it's execution of the law, which is what the Executive Branch should do (the clue's in the name).

It's an interesting read, although one that lawyers will understand more deeply than I did.

(Any misrepresentations or over-simplifications of Vermeule's thesis above are my own fault; feel free to correct.)


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SovCit Thinking In the Legal Academy

Postby Flatpointhigh » Tue Sep 02, 2014 1:58 pm

As a non-legal beagle, thank you for this clear explanation.

"It is wrong to say God made rich and poor; He only made male and female, and He gave them the Earth as their inheritance."- Thomas Paine, Forward to Agrarian Justice

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Postby RoadScholar » Tue Sep 02, 2014 4:35 pm

Isn't this sort of thing just intellectual graffiti? Damaging an edifice just to have people pay attention to something you did? Pretending it's of lasting importance even though you're secretly aware that your mark will be obliterated in time, and the edifice is what will remain? An assertion of power in a context that actually reveals insecurity and insignificance?

I'll Stop Attacking the Far Right with the Truth When They Stop Attacking Me with Lies.

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ducktape
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SovCit Thinking In the Legal Academy

Postby ducktape » Tue Sep 02, 2014 5:44 pm

Isn't this sort of thing just intellectual graffiti? Damaging an edifice just to have people pay attention to something you did? Pretending it's of lasting importance even though you're secretly aware that your mark will be obliterated in time, and the edifice is what will remain? An assertion of power in a context that actually reveals insecurity and insignificance?

I like this word/definition. I will borrow it.


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Postby TollandRCR » Tue Sep 02, 2014 5:54 pm

Prof. Hamburger has held named chairs at Chicago and George Washington, as well as a professorship at UConn. He was a visiting professor at the University of Virginia and Northwestern. It cannot be the case that his views have been unknown to those who hired him. His publications http://www.law.columbia.edu/hamburger seem to have revealed his "natural law" thinking back in the 1990s. What gives?


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Sugar Magnolia
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SovCit Thinking In the Legal Academy

Postby Sugar Magnolia » Tue Sep 02, 2014 5:57 pm

Isn't this sort of thing just intellectual graffiti? Damaging an edifice just to have people pay attention to something you did? Pretending it's of lasting importance even though you're secretly aware that your mark will be obliterated in time, and the edifice is what will remain? An assertion of power in a context that actually reveals insecurity and insignificance?

And totally out of context of the legal academy, your post is somehow very poetic.


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Maybenaut
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SovCit Thinking In the Legal Academy

Postby Maybenaut » Tue Sep 02, 2014 6:12 pm

Prof. Hamburger has held named chairs at Chicago and George Washington, as well as a professorship at UConn. He was a visiting professor at the University of Virginia and Northwestern. It cannot be the case that his views have been unknown to those who hired him. His publications http://www.law.columbia.edu/hamburger seem to have revealed his "natural law" thinking back in the 1990s. What gives?

This sort of thing doesn't bother me. That is to say, the fact that people in the legal academy are discussing "natural law" doesn't bother me. I'm too lazy to go read all those papers, but I don't necessarily think that those conversations are not worth having in an academic setting. He writes a bunch of crap, other people refute it. Meh.

chancery
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SovCit Thinking In the Legal Academy

Postby chancery » Tue Sep 02, 2014 11:07 pm

If Adrian Vermeule's amusing review is fair, Prof. Hamburger's big book is indeed a brand of sovcit-style nonsense.Vermeuele makes some neat points, one of the more obvious being that administrative law cannot be "unlawful", simply because it is law. Perhaps Hamburger doesn't want to say "unconstitutional" because (Vermeule points out) Hamburger is not referring to the Constitution of 1789 plus amendments. Vermeule says that Hamburger never clearly delineates what he intends by the term "unlawful".The flavor of sovcittery seems to come from Hamburger's appeal to deep principles of Anglo-American law that he dreams up. But Vermeule points out (I paraphrase...) "wtf, we iz not Stuart England, we had rebels, we haz konstitushun, u iz stoopit dog".* * *(Any misrepresentations or over-simplifications of Vermeule's thesis above are my own fault; feel free to correct.)

Sam, you've accurately summarized most of Vermeule's analysis.There's a further point, which I left out of the initial post, namely that that for over two centuries United States courts (state & federal) have exercised their [magical?] common law powers of judicial review over administrative law issues, and have delineated the boundaries between legislative prerogative and executive (administrative) discretion. The entire field of federal administrative law was reincarnated by Congress in 1946 with the enactment of the Administrative Procedure Act, and thousands of subsequent decisions have created a body of law that might be distasteful to free market yahoos, but cannot be characterized as "not law."Vermeule cites the leading Supreme Court cases on administrative law from the 19th century to the present, and notes that Hamburger neither cites nor discusses any of them. As he observes:

There is too much in this book about Charles I and Chief Justice Coke, about the High Commission and the dispensing power. There is not enough about the Administrative Procedure Act, about administrative law judges, about the statutes, cases and arguments that rank beginners in the subject are expected to learn and know.

United States administrative law isn't perfect; in fact, it frequently sucks, like most human endeavors. To argue that it isn't law is something else.

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SovCit Thinking In the Legal Academy

Postby Sterngard Friegen » Wed Sep 03, 2014 2:55 pm

Professor Hamburger has apparently viciously attacked late SCOTUS Justice Hugo Black in the past, fixating on his once-membership in the KKK. But with a name like his I suspect he won't be going after one of Justice Black's fellow justices, Felix Frankfurter.

I could have used Hamburger's SovCit administrative law attack when I first started practicing law. I was dealing with two huge agencies whose decisions were almost unreviewable by the courts. These agencies set up their own regulations and adjudicated on an inconsistent case-by-case basis.

One of those agencies, the Selective Service System, was so bad in making its rulings that SCOTUS established the most lenient judicial review ever posited -- the "basis in fact" test. (If there was any factual basis in the record for the decision -- and of course there always was -- the decision stood.) The basis in fact test worked during WW2 but eventually became nonsense during the Viet Nam era (when the courts started to find "legal errors" to trump the basis in fact all decisions could rely upon).

The second agency's terrible decisions were protected by Congress and a Supreme Court which in the 1970s held that the $10 attorney's fee (from the Civil War) was all a lawyer could get for representing a veteran. The second agency, of course, was the VA.

Somehow, despite Hamburger's misgivings, we survived those agencies.



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