The United States Constitution echoes this. Early Americans were very familiar with absolute power. They feared this extra-legal, supra-legal, and consolidated power because they knew from English history that such power could evade the law and override all legal rights. It is no surprise, then, that the United States Constitution was framed to bar this sort of power. To be precise, Americans established the Constitution to be the source of all government power and to bar any absolute power. Nonetheless, absolute power has come back to life in common law nations, including America.
After absolute power was defeated in England and America, it circled back from the continent through Germany, and especially through Prussia. There, what once had been the personal prerogative power of kings became the bureaucratic administrative power of the states. The Prussians were the leaders of this development in the 17th and 18th centuries. In the 19th century they became the primary theorists of administrative power, and many of them celebrated its evasion of constitutional law and constitutional rights.
This German theory would become the intellectual source of American administrative law. Thousands upon thousands of Americans studied administrative power in Germany, and what they learned there about administrative power became standard fare in American universities. At the same time, in the political sphere, American Progressives were becoming increasingly discontent with elected legislatures, and they increasingly embraced German theories of administration and defended the imposition of administrative law in America in terms of pragmatism and necessity.
The Progressives, moreover, understood what they were doing. For example, in 1927, a leading Progressive theorist openly said that the question of whether an American administrative officer could issue regulations was similar to the question of whether pre-modern English kings could issue binding proclamations. By the 1920s, however, Progressives increasingly were silent about the continuity between absolute power and modern administrative power, as this undermined their claims about its modernity and lawfulness.
In this way, over the past 120 years, Americans have reestablished the very sort of power that the Constitution most centrally forbade. Administrative law is extra-legal in that it binds Americans not through law but through other mechanisms—not through statutes but through regulations—and not through the decisions of courts but through other adjudications. It is supra-legal in that it requires judges to put aside their independent judgment and defer to administrative power as if it were above the law—which our judges do far more systematically than even the worst of 17th century English judges. And it is consolidated in that it combines the three powers of government—legislative, executive, and judicial—in administrative agencies.
Let me close by addressing just two of many constitutional problems illuminated by the re-emergence of absolutism in the form of administrative power: delegation and procedural rights.
One standard defense of administrative power is that Congress uses statutes to delegate its lawmaking power to administrative agencies. But this is a poor defense. The delegation of lawmaking has long been a familiar feature of absolute power. When kings exercised extra-legal power, they usually had at least some delegated authority from Parliament. Henry VIII, for example, issued binding proclamations under an authorizing statute called the Act of Proclamations. His binding proclamations were nonetheless understood to be exercises of absolute power. And in the 18th century the Act of Proclamations was condemned as unconstitutional.
Against this background, the United States Constitution expressly bars the delegation of legislative power. This may sound odd, given that the opposite is so commonly asserted by scholars and so routinely accepted by the courts. But read the Constitution. The Constitution’s very first substantive words are, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The word “all” was not placed there by accident. The Framers understood that delegation had been a problem in English constitutional history, and the word “all” was placed there precisely to bar it.
As for procedural rights, the history is even more illuminating. Administrative adjudication evades almost all of the procedural rights guaranteed under the Constitution. It subjects Americans to adjudication without real judges, without juries, without grand juries, without full protection against self-incrimination, and so forth. Like the old prerogative courts, administrative courts substitute inquisitorial process for the due process of law—and that’s not just an abstract accusation; much early administrative procedure appears to have been modelled on civilian-derived inquisitorial process. Administrative adjudication thus becomes an open avenue for evasion of the Bill of Rights.
The standard justification for the administrative evasion of procedural rights is that they apply centrally to the regular courts, but not entirely to administrative adjudication. But the history shows that procedural rights developed primarily to bar prerogative or administrative proceedings, not to regulate what the government does in regular courts of law. As I already mentioned, the principle of due process developed as early as the 14th century, when Parliament used it to prevent the exercise of extra-legal power by the King’s Council. It then became a constitutional principle in the 17th century in opposition to the prerogative courts. Similarly, jury rights developed partly in opposition to administrative proceedings, and thus some of the earliest constitutional cases in America held administrative proceedings unconstitutional for depriving defendants of a jury trial.
In sum, the conventional understanding of administrative law is utterly mistaken. It is wrong on the history and oblivious to the danger. That danger is absolutism: extra-legal, supra-legal, and consolidated power. And the danger matters because administrative power revives this absolutism. The Constitution carefully barred this threat, but constitutional doctrine has since legitimized this dangerous sort of power. It therefore is necessary to go back to basics. Among other things, we should no longer settle for some vague notion of “rule of law,” understood as something that allows the delegation of legislative and judicial powers to administrative agencies. We should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power or more concretely of extra-legal, supra-legal, and consolidated power. Then we at least can begin to recognize the danger.
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