… is from pages 495-496 of Philip Hamburger’s timely and important 2014 book, Is Administrative Law Unlawful?:
Evidently, the lust for power outside the law is a recurring danger, and it is confined neither to monarchies nor to the past. Understanding this, Americans in their constitutions carefully repudiated power outside or above the law. Their constitutions, however, could no longer hold off the danger when an increasingly dominant knowledge class abandoned its attachment to the straight and narrow paths of law in pursuit of broader avenues of extra- and supralegal power.
The result, as in the past, is an alternate, parallel system of law, which is not law, but mere command, and which increasingly crowds out real law. Americans thus must live under a dual system of government, one part established by the Constitution, and another circumventing it.
….
[E]xtralegal power again threatens the liberty demarcated by law. Of course, administrative law is said to have statutory authority. This, however, does not alter the fact that administrative law confines Americans, not through law, but outside it, thus displacing the liberty under law with a subjugation to administrative command.
The liberty established by the Constitution is a liberty under law, not a liberty under administrative fiat. It is a complete freedom to do whatever is not forbidden by law, and any attempt to impose extralegal constraints is unconstitutional.
Just fyi, David Bernstein, a GMU colleague of mine over in the law school, reviews Hamburger’s book here.
