Is Administrative Law Unlawful, Philip Hamburger

I have to love the name. Hamburger is very American! 

The Hamburger in this case is no joke at all. A Juris Doctor (highest degree in law) from Yale, now a law professor at Columbia and noted author of a number of books, articles, and recipient of prestigious awards. You likely have never heard of him because what he writes about clearly and unambiguously makes a nearly irrefutable case that we are subjects, not citizens, with our rulers having absolute power. 

How is that possible? Because the approved media and educational system narrative is that it is not possible for a "modern technological society" to be governed by citizens of a republic. Our betters find the very idea of separation of powers with a judicial system that enforces the separation through application of a written constitution to be "impossible". (the book lets you know it is fairly easily possible, just not desirable for our rulers), 

I seem to be on a tear of reading deep and difficult works for some reason lately. This one is no exception, although well written. Five hundred page, fairly small print, and over 100 pages of notes is not to be trifled with. If we are to return to being a Constitutional Republic, something over a majority need to understand some of these truths that are not so "self evident", but critical to any that want to return to being citizens rather than subjects. 

A shorter (and likely better) review of the book that I quote from in this post is here.

In the 1500s (and before), the application of absolute power was supposedly required because of "emergency" (like a "crisis" ... Covid, Climate Change, gun violence, etc, etc). 

Those who remain skeptical might consider one of Hamburger’s examples. He discusses the 1539 Act of Proclamations enacted by a cowed Parliament at Henry VIII’s insistence. The Act authorized the king to “set forth…proclamations, under such penalties and pains” as might be thought “necessary and requisite” by the king and his council. These proclamations “shall be obeyed, observed, and kept as though they were made by act of Parliament.”

If you have to go around Parliament and Congress from time to time, perhaps the "time" should be perpetually NOW.  One of our current ruling class has a definite handle on the importance of the passage of time. We should all be thankful that we are subjects to the brilliance of our betters through Administrative Law ... they have it together! 

The thesis of the book is simple: 

His thesis, in a nutshell, comes to this: the Constitution contemplates only two kinds of edicts that may bind citizens—rules enacted by Congress, and orders issued by duly authorized courts. Administrative edicts, by contrast, seek to bind citizens by commands that are neither legislatively enacted nor judicially decreed. They are, strictly speaking, lawless.

 Perhaps (though I'm pessimistic) people will start to realize that we have been brainwashed by our "educational system" (indoctrination system), our media industrial complex (propaganda), and of course our entire Administrative/Deep State. The Deep State has now been politically weaponized to defend our rulers in the Democrat Deep State.

The linked review is more optimistic than I am. We both see the ACA as an example of the tragedy of the Administrative State, however since the linked review is from 2014, it appears my pessimism is more accurate than their admittedly tepid optimism. 

The persistent, widespread, and increasing unpopularity of the Affordable Care Act may be an indicator of public exhaustion with the new regulatory paradigm. Despite early enthusiasm for health care “reform,” it gradually began to dawn on the public that a government plan to coordinate health care services all the way down, so to speak, is going to have a lot to say about when, where, how, and by whom you are treated, and for how long. And the government is not always going to say please and thank you as it steers citizens into mandated health care chutes. Despite repeated promises by politicians from the president on down, it turns out that large numbers of people will not be able to keep their previous health plan or doctors. And their new insurance policies in all probability will cost them more—considerably more.

I take a shot at making this simpler and more personal in this recent post. 

As the book repeats multiple times, our courts including the SCOTUS have decided it is almighty precedent that requires deference to the Administrative State, and Obama Care is a nasty example. 

A quote from the book by way of the review summarizes what has happened rather nicely. 

The history of government is largely a story of elite power and popular subservience. Americans, however, turned this old model upside down. By establishing a republican form of government, they eventually made themselves masters and made their lawmakers their servants. More than two centuries later, the shell of this republican experiment remains. Within it, however, another government has arisen, in which new masters once again assert themselves, issuing commands as if they were members of a ruling class, and as if the people were merely their servants. Self-government thus has given way to a system of submission.

Optimists honestly thought that the Covid authoritarian lockdowns, lies, destruction of our economy and educational system would wake up the population and draw them away from Netflix, social media, and general mindless entertainment to throw the bums out.  To the extent 2022 was an "election" it shows that was either a false hope, or that a serf thinking that an "election" run by the ruling class is going to free them from their servility is deluded. 

You probably started reading this thinking you were a citizen, welcome to being a subject!