Extralegal Law

JusticeThumbby Anniel   7/10/14
This is not a book review, but is rather about something that was brought up during an interview with Philip Hamburger, Professor of Law at Columbia Law School, and author of a new book entitled Is Administrative Law Unlawful, University of Chicago Press, 2014. Scott Johnson at powerlineblog.com has been following Professor Hamburger since he previewed his book, which is now available and during an interview the professor and Johnson clarified some thoughts Hamburger doesn’t cover in his book.

I haven’t finished reading Professor Hamburger’s book, but as I understand his thinking, Administrative Law has been a problem in differing governments in the past, but the Constitution specifically had provisions to preclude this issue. So the use of these so-called administrative laws is a relatively new development in our country. Dictatorial Administrative Law is being used in what Hamburger says is an extralegal manner to make laws never legislatively intended. These administrative laws can have no binding effect on individuals or businesses. Administrative Law Courts are also extralegal, and should not be considered binding.

The legislators in Congress are the only ones who have the power to pass binding laws upon citizens and businesses in this country. The Executive Branch is charged with fully and fairly enforcing the law, and, if there is any question, the Judicial Branch is to insure that the law passes constitutional muster or is administered properly.

If, and this is a big IF, the Executive Branch passes the responsibility for administering the law to an agency of unelected bureaucrats and establishes no oversight or accountability, there is danger that the agency will make its own laws. If Congress is blind or lazy and doesn’t perform its own oversight you wind up with the EPA, VA, IRS, Dept. of Agriculture, ad nauseam. Is there any doubt they pass their own laws?

Professor Hamburger says that Administrative law is extralegal law, which seeks to bind through sub-delegation. Think of any Department or agency as presently constituted and you know how and why we now face such dangerous laws from this out-of-control regime. Some states don’t have to follow some laws (ObamaCare), or are forbidden to enforce others (Illegal Immigration); Congress excuses itself from laws all the time (ObamaCare, Insider Trading); Common core WILL be followed; seizure was made of Gibson Guitar Company’s legally purchased woods; only whites can commit “hate” crimes – Awful list isn’t it? And it’s only a very short list.

I am not a lawyer, but in a past life I was a good paralegal and worked in varied law specialties. I had always understood that we are a nation of laws and we’re supposed to be constitutionally equal before the law. When John Roberts went wonky on us and ObamaCare was found to be constitutional I was as astounded as everyone else. Previous to the ruling I had thought of an approach to the Supreme Court hearings (that everyone was pinning their hopes on) and couldn’t understand why no one was stating the obvious – That if waivers are granted to one group or person, they must also be granted to anyone and everyone who requests them, or the law is moot on its face. Either it applies to every citizen or it cannot be a law. I feel like I should invoke the President here and say, PERIOD.

My thought back then was that someone should file an Amicus brief in the pending cases on the matter. In my mind I could see getting big donors from each State to submit the brief with their names on it, and stating there would be other Intervenors yet to be named. If an attorney handled the case pro bono, the first named Intervenors would have to furnish start up fees and funding, but after the brief was filed, time could be spent getting other Intervenors on board with the goal being to recruit as many people as possible and to make certain that everyone involved had skin in the game by helping pay the costs. Everyone would have standing no matter how large or small their donation. It would be an expensive proposition I know. Research, fees, assistants, secretaries, paper, travel, accountants, escrow accounts.

I thought of this again when Professor Hamburger answered a question from Scott Johnson about examples of misuse of law. The professor referenced ObamaCare and said:


I thought back when ObamaCare was being argued that there would be a huge group who would be willing to stand together in a proposed intervention. If that is true, and not just wishful thinking on my part, could it still be done? How could Congress or the Courts possibly ignore a brief or a suit with thousands of Complainants? My, wouldn’t the IRS be busy.

We all talk and pray and hope, but we don’t know what to peaceably do. Could this be more than just another petition to be ignored by the fools at the top? I would hope so. Everything I write or think lately seems to be full of “would”, “should”, “could”, “hope”, “wish” and “maybe.” Frankly it makes me tired. As I said, I am not an attorney, but I wish (there I go again) sometimes I were, or that we all knew Professor Hamburger and he could tell us what would work to our advantage.

This is simply a recurring thought I have about a possible course of action that could change the legality of what these absolutely lawless people and groups are doing to our beloved country.

Please, does anyone, and I am absolutely serious here – Does anyone have any ideas? • (1146 views)

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3 Responses to Extralegal Law

  1. Timothy Lane says:

    The logic of permitting bureaucrats to write laws (which shouldn’t be legal unless confirmed by Congress) is that they’re only “interpreting” vague laws. (It was pointed out years ago in Reason, I think by Cathy Young, that liberals will insist that civil rights and environmental laws are very limited in effect during passage, then interpret them very expansively. Conservatives, by contrast, point out during passage how they can be interpreted expansively, then call after passage for the limited effect that their supporters had claimed at the time.)

    SCOTUS is long overdue revisiting the 1935 Schechter Brothers decision, in which the National Recovery Administration was unanimously struck down because the law delegated too much authority too vaguely. But the best solution would be to require every proposed regulation to pass Congress before it becomes effective.

  2. Rosalys says:

    My Dad used to call these “regulations with the color of law” and the bureaucrats who harass We the People using such are acting under the “color of law” – which he then said would have the force of law unless and until someone challenged it and won in a court of law. Trouble is, you can no longer count on our courts adjudicating according to law.

  3. Anniel says:

    Rosalys – Absolutely correct. Professor Hamburger’s book is more eye opening the further I read. You can tell it’s written by a legal-beagle but if you stick with it you begin to understand the bones of his book. I am beginning to understand more about why King Charles and James II lost their crowns, one with head attached, so the historical perspective Hamburger presents is great.

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