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“Hamburger argues persuasively that America has overlaid its constitutional system with a form of governance that is both alien and dangerous.” —Law and Politics Book Review While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent. With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious—and profoundly unlawful—return to dangerous pre-constitutional absolutism.
"This new book provides a comprehensive introduction to American law governing the administrative and regulatory activities of public agencies. In addition to covering agency rulemaking, administrative adjudication, and judicial review of agency action, Administrative Law and Policy encompasses the constitutional foundations of administrative law as well as the statutory framework within which administrative agencies operate. It also includes a short history of the administrative state, taking note of key statutes, executive actions, and judicial decisions. The book also covers rights and responsibilities of public employees, civil liability of government officials and agencies, and emergency powers of the local, state, and national governments. Throughout the book, the authors use real-world examples to illustrate concepts and trends, including the federal, state, and local responses to the COVID-19 pandemic. The treatment of relevant case law is very much up to date, covering decisions from the Supreme Court's 2019-20 Term. Administrative Law and Policy incorporates several recurring pedagogical features, including "Case in Point" boxes, which focus on important judicial decisions, "Agency Spotlight" boxes that examine specific government agencies or programs, and "Sidebar" boxes addressing interesting topics or events. Each chapter contains a set of key terms, all of which are defined in a Glossary"--