Book Review: The Administrative Threat

by Anniel7/29/17
Phillip Hamburger, Author. Published by Encounter Books. Available on Kindle.  •  I had previously written an article on StubbornThings about Phillip Hamburger and Extralegal Law. The article was not a book review, but was rather about something that was brought up during an interview with Professor Hamburger, Professor of Law at Columbia Law School, and author of a just then published book entitled Is Administrative Law Unlawful.

Many of you are familiar with Professor Hamburger and his writings. He has received many awards and become well known since that book was published. I read it in its entirety after I wrote the article and carefully considered his reasoning. That book gave a comprehensive overview and history of the roots of Administrative Law and why it is unconstitutional.

After reading and then writing Book Reviews on “Cardiac Arrest” (ST, 6/21/17) by Howard Root and “The Devil Inside the Beltway” (ST, 7/26/17) by Michael J. Daugherty, I learned that Professor Hamburger had condensed “Is Administrative Law Unlawful” into a much shorter pamphlet length treatise called “The Administrative Threat.” That is
what I will be dealing with in this Review.

This pamphlet, although I hate to call it just a “pamphlet,” is very readable and clear for anyone put off by the Professor’s longer book. He has divided his arguments into sections set off by large attention-getting print so you can follow him capably.

Hamburger’s pamphlet, or at least large portions of it, reads like a court pleading, and is a call to action by all three branches of the government, and by the people themselves and what they should be demanding from their elected representatives.

I highly recommend this pamphlet, even if you have read the longer book. Hamburger has set forth some ideas for us all as we try to mend our Constitutional Law fences to protect our rights.

Professor Hamburger makes the case that ALL administrative law is unconstitutional, and then asks the vital question:

WHAT IS TO BE DONE?

His answers are for all three branches of government, and for us:

First, although Congress has repeatedly authorized and acquiesced in administrative power, it still perhaps can redeem itself. Most basically, Congress should reclaim its legislative power. . . It can convert rules to statutes at a measured pace, agency by agency. . . Congress also should bar judicial deference to agencies on questions of law or fact, as this violates due process and other constitutional limitations. . . [it] should abolish administrative law judges and replace them with real judges. . . Remove immunity for administrators. . .

The executive offers a second mechanism against administrative power. . . He should end administrative paths of government. . . he could require agencies, one by one, to send their rules to Congress to adopt. He also could require federal lawyers to refrain from seeking judicial deference, lest they participate in the court’s due process violations. . .

A third and more predictable approach will be through the courts. The judges have repeatedly acquiesced in administrative power. . . judges who have stood against [administrative power have been threatened] each time they gave way. [Then] even without threats [they] bent over backwards to accommodate such power. . . They thereby have corrupted their own proceedings – for example, by refusing jury rights even in court, by abandoning their office of independent judgment, and by engaging in systematic bias in violation of the due process of law. . . administrative power is one of the most shameful episodes in the history of the federal judiciary. . . Americans can persuade judges to do their duty. . . Judges have high ideals of their office of independent judgment. . . They are dedicated to their role in upholding the rule of law, especially the Constitution. . . At least some of them may repudiate administrative law.

Professor Hamburger may be overly optimistic in some of the three approaches, particularly about the role of judges. But the Supreme Court may be an answer, I would hope so.

He does charge citizens as the only ones who can demand these changes. He says only “our spirit of liberty can move Congress, inspire the president, and brace the judges to do their duty.”

Please read this pamphlet. It’s short enough to be read 2 or 3 times at a sitting, although careful thinking time needs to be added.
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Does the following have any effect on Administrative Law?

Holder at the DOJ was the worst offender [Note from Annie: enabler of Administrative Law and retention of funds for Department use] and [he] was able to redistribute money from these “settlements” to the favorite radical group of the day. That this went on at our Justice Department is the height of hypocrisy.

The Justice Department announced Wednesday (June 7, 2017) it will no longer allow prosecutors to strike settlement agreements with big companies directing them to make payouts to outside groups, ending an Obama-era practice that Republicans decried as a “slush fund” that padded the accounts of liberal interest groups. Sessions said the money should, instead, go to the Treasury Department for victims.

“When the federal government settles a case against a corporate wrongdoer, any settlement funds should go first to the victims and then to the American people—not to bankroll third-party special interest groups or the political friends of whoever is in power,” Sessions said in a statement.

“This bill is oversight and action. Congress must not tolerate Justice Department political appointees using settlements to funnel money to their liberal friends,” Chairman of the House Judiciary Committee Bob Goodlatte, R-Va., who introduced the bill, said in a statement.

This is how it works: Remember when big banks were sued by the feds for supposed mortgage abuse or discrimination? The government basically extorted money from the banks and then incentivized the banks to settle by giving the money to third-party organizations. How convenient, right? It was a way to redistribute billions to radical organizations like La Raza.

So far, investigators have accounted for $3 billion paid to “non-victim entities.”

The underlying problem with the slush funds is we don’t know exactly where the money is going. Using enforcement authority to go after corporate defendants, DOJ bureaucrats are taking billions away from taxpayers to fund their pet projects overriding congressional preferences.” – Ted Frank, director of The Competitive Enterprise Institute Center for Class Action Fairness.

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A VERY SERIOUS THOUGHT QUESTION CONCERNING THE SO-CALLED PATIENT PROTECTION AND AFFORDABLE CARE ACT:

March 23, 2010.This Act (which no one had read, per Pelosi) was rammed through the shameful 111th Congress in the dead of night by the Democrats alone, led by Harry Reid. Not a single Republican voted for it. Many major provisions did not take effect until 2014.

In 2012 Chief Justice John Roberts, to his endless shame, pushed the payment monstrosity through SCOTUS, 5-4, thus abrogating our constitutional rights by a non-constitutional ruling.

If Administrative law were overturned tomorrow, what would be the fate of Obamacare and all of its mandates?

How many of the Acts provisions were actually in the bill on the date of its passage, when no legislators had read it and only Democrats voted for it? How many provisions have been added by administrators since that time? Who was in charge of making the administrative laws?

The Secretary of Health and Human Services and the Internal Revenue Service are in charge of this Act, but are others involved?

Could President Trump simply overrule all of the Administrative provisions that were added after the Supreme Court Decision?

Let me guess, he would be impeached if he did. Maxine Waters could lead the charge! What fun that would be since she is so intelligent.

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4 Responses to Book Review: The Administrative Threat

  1. Timothy Lane says:

    SCOTUS needs to resurrect the Schechter Brothers decision of 1935, in which it invalidated the National Recovery Administration because of its administrative law-making with inadequate Congressional guidance. At a minimum.

  2. Kung Fu Zu Kung Fu Zu says:

    The administrative state may be a huge threat to our freedoms, but insane, ignorant and egomaniacal Senators and Representatives can do much more damage in a shorter period of time.

    The link is to an article which points out the insanely dangerous means, which that scoundrel and idiot John McCain, the establishment wing of the Republican Party and Dims have taken to embarrass and, if possible, destroy Trump.

    http://www.atimes.com/article/trumps-america-first-vs-mccains-america-last/

    I agree 100% with Goldberg’s analysis. The moment I heard of the crazy law regarding Russia sanctions, I came to the same conclusions.

    The hubris of the American ruling class is finally going to catch up with us. This new law on sanctions is going to push Europe into the arms of Russia and Russia into the arms of China. It is going to strengthen China significantly. For those who doubt me think cheap energy.

    I dislike Donald Trump, but I despise McCain, his Butt-Boy Lindsey Graham and the rest of the establishment who really are stupid beyond belief. One can only wish that McCain leaves the Senate immediately. He is a clear and present danger to the world.

    • Timothy Lane says:

      I’d be happier if Goldman explained things a little better. But it certainly doesn’t sound good. It was a surprise that the bill did more than eliminating Trump’s ability to lift sanctions on his own. It’s also surprising that there were hardly any negative votes under those circumstances.

      • Kung Fu Zu Kung Fu Zu says:

        The day after the Senate passed this insane bill, I had to search around the internet to find out what was in it. Even then, I could not find a copy of the bill. I finally got some broad idea of what was in the bill, including the fact that any president must now go to Congress to lift these sanctions.

        To my mind, the most damaging part of this bill is the way it threatens sanctions on any company which does business in the energy sector with Russia. There are a number of energy projects underway between Russia and Western Europe which would have to stop dead in their tracks if they adhere to these new sanctions.

        The United States government long been seen as arrogant, but this would appear to be taking it to a new level. Worse still, the sanctions will apply to and effect our closest allies. There does not appear to have been any consultation with our allies regarding these sanctions.

        This action by Congress has to be one of the most stupidly self-damaging (to the USA) things I have ever seen come out of an admittedly stupid and corrupt institution.

        The Chinese must be laughing their asses off.

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