Philip Hamburger’s Is Administrative Law Unlawful? is a timely and major contribution to the most significant constitutional crisis of our time. As a work of scholarship it will inform and inspire future thinking on the administrative state for years. This book, however, will greatly contribute to an emerging consensus about the perils of the administrative state, and help shape the constitutional response. Therefore it may well be the most important book that has been written in decades. Scholars have been denouncing the modern administrative state as incompatible with American constitutionalism for years, but nobody has made the argument as thoroughly and…
My new book, Is Administrative Law Unlawful?, argues that administrative power revives prerogative power. This is not, however, an entirely original thesis. On the contrary, it once was widely acknowledged by proponents of administrative power.
(In my first post, I discussed the nature of the prerogative power. Here I discuss whether it exists under the Constitution.)
If one were to find a presidential prerogative in the Constitution, where would it be located? Perhaps the most common answer is that the it is given to the President in the Executive Power Vesting Clause. While I believe that the Clause does provide substantive powers to the President, I don’t think it gives the President a prerogative.
There is a significant dispute as to whether the Executive Power Vesting Clause provides powers to the President. The argument for concluding that the Clause provides powers involves a comparison of the Executive and Legislative Vesting Clauses. The latter provides that “All legislative Powers herein granted shall be vested in a Congress of the United States.” The former provides that “The executive Power shall be vested in a President of the United States.” While the legislative power is limited to the list of powers conferred on the Congress, the executive power is not.
Under this reading, the Constitution confers all of the traditional executive powers on the President that it does not either give to the Congress (such as the power to Declare War, which the King of England traditionally had) or limit (such as the power to appoint executive officers, which the Kind had alone, but which the Constitution gives to the President along with the Senate).
The alternative reading views the President’s powers as limited to the list of powers listed in Article II, such as the Pardon Power and the Commander in Chief Power. It views the herein granted language of the Legislative Vesting Clause as simply about denying to Congress powers that the state legislatures enjoyed, based on federalism concerns.