Creating The Administrative Constitution

This groundbreaking book is the first to look at administration and administrative law in the earliest days of the American republic. Contrary to conventional understandings, Mashaw demonstrates that from the very beginning Congress delegated vast discretion to administrative officials and armed them with extrajudicial adjudicatory, rulemaking, and enforcement authority. The legislative and administrative practices of the U.S. Constitution’s first century created an administrative constitution hardly hinted at in its formal text. Beyond describing a history that has previously gone largely unexamined, this book, in the author’s words, will "demonstrate that there has been no precipitous fall from a historical position of separation-of-powers grace to a position of compromise; there is not a new administrative constitution whose legitimacy should be understood as not only contestable but deeply problematic."

Public administration as an American profession originated in the early twentieth century with urban reformers advocating the application of scientific and business practices to rehabilitate corrupt city governments. That approach transformed governance in the United States but also guaranteed recurrent debate over the proper role of public administrators, who must balance the often contradictory demands of efficiency and politically defined notions of the public good. Currently the business approach holds sway. Legitimated by Al Gore's National Performance Review, the New Public Management movement promotes entrepreneurs over civil servants, performance over process, decentralization over centralization, and flexibility over rules. John Rohr demurs, arguing that the movement goes too far in downplaying the distinctively American challenges arising from the separated powers principle. Consequently, the NPM alienates public management from its natural home—a nation-state established within a constitutional order. According to Rohr, "nothing is more fundamental to governance than a constitution; and therefore to stress the constitutional character of administration is to establish the proper role of administration as governance that includes management but transcends it as well." This is not a novel argument for Rohr, who was recognized in 1999 by the Louis Brownlow Committee of the National Academy of Public Administration for his lifetime contributions on the "constitutional underpinnings" of public administration. But this new version of his rule-of-law critique directly addresses the NPM's excesses, framed convincingly as a comparative study of cases found in four countries spanning three centuries. As a result, Rohr establishes that the constitutional-administrative nexus is intimate, stable, pervasive, and enduring. The first half of the book examines the linkages between constitutions and administrations in France, the United Kingdom, and Canada, all of them sufficiently similar to the United States to make comparisons meaningful and sufficiently different to provide illuminating perspectives on domestic practices. The examples extend from the French Revolution through the founding of the Canadian Confederation in the 1860s to such contemporary issues as the influence of administrative directives from Brussels on the British courts. The second half of the book examines American cases in three categories: separation of powers, individual rights, and federalism. In each case Rohr highlights instances of public management "with all its warts and wrinkles tending to the mundane details of translating great constitutional principles into everyday actions." American administrative law, Rohr concludes, has structured safeguards to protect the integrity of administrative decision-making while also holding it accountable. Constitutional law has helped establish civil servants' freedom of speech and applied the fundamental principles of federalism to the administrative process. He summarizes his findings from the case studies by saying that the constitutional role of American civil servants comes not only from specific American experiences but also from the very nature of civil service.

This groundbreaking book is the first to look at administration and administrative law in the earliest days of the American republic. Jerry Mashaw demonstrates that from the very beginning Congress delegated vast discretion to administrative officials and armed them with extrajudicial adjudicatory, rulemaking, and enforcement authority. The legislative and administrative practices of the U.S. Constitution's first century created an administrative constitution hardly hinted at in its formal text. This book, in the author's words, will "demonstrate that there has been no precipitous fall from a historical position of separation-of-powers grace to a position of compromise; there is not a new administrative constitution whose legitimacy should be understood as not only contestable but deeply problematic."

Explains how administrative government maintains mutual respect among citizens, legitimates administrative government under law, and supports a realistic vision of democracy.

This book is divided into 5 parts. Part 1 deals with founding principles of administrative; part 2 with powers, duties, and functions of the administrator; part 3 deals with control of administration action; part 4 procedural issues surrounding the judicial review;and part 5 remedies available to the aggrieved person.

“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.

Of interest to academics, students, legal practiitoners