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Book Review: Is Administrative Law Unlawful? by Philip Hamburger
University of Chicago Press, 2014

Reviewed by William N. Sosis, Esq.

I. Introduction

In Is Administrative Law Unlawful?, legal historian Philip Hamburger delivers a sweeping, provocative, and deeply researched indictment of the modern administrative state. Far from being a neutral mechanism for efficient governance, Hamburger argues that administrative law is a constitutionally unlawful usurpation of legislative and judicial power. His thesis is bold and unapologetic: administrative law is not merely inconsistent with American constitutional principles—it is a modern reincarnation of absolute power, dangerously similar to the prerogatives exercised by kings in medieval and early modern England.

Hamburger’s fundamental claim is that administrative law revives an extralegal mode of governance that American constitutionalism was designed to abolish. Through a rigorous historical and legal analysis, he shows that administrative edicts today mirror the very powers once wielded by monarchs, and which the U.S. Constitution sought to prevent. This book is not only a legal argument—it is a historical narrative and a warning.

II. The Core Argument: Administrative Law as Unlawful Power

Hamburger opens his book with a conceptual and historical exploration of what constitutes "unlawful" governance. His central argument rests on the premise that lawful power must operate “through and under the law,” specifically through the Constitution’s delegation of legislative power to Congress, judicial power to the courts, and executive power to the President. Administrative agencies, however, blur these lines. They create rules (quasi-legislation), adjudicate disputes (quasi-judiciary), and enforce policies (executive power), consolidating all three functions in ways expressly prohibited by the Constitution.

Hamburger insists that this consolidation amounts to a return to absolute power—a term he uses in its technical, historical sense to describe power that is extralegal, supralegal, and consolidated. These are not rhetorical flourishes. He draws on centuries of Anglo-American legal thought to demonstrate how administrative agencies operate outside the law (extralegal), above the law (supralegal), and in defiance of the separation of powers (consolidated).

III. Historical Parallels: Prerogative Power and Medieval Absolutism

Perhaps the most striking and original component of Hamburger’s argument is his historical comparison between modern administrative law and the prerogative powers of monarchs in pre-constitutional England. In the medieval and early modern periods, English kings operated through prerogative courts—such as the Star Chamber and the Court of High Commission—which issued binding edicts without parliamentary authorization and without observing common law procedures. These courts claimed to address emergencies or special situations, much like today’s administrative agencies claim necessity in regulating complex modern societies.

Hamburger traces how English constitutional development, culminating in the seventeenth-century constitutional crisis and the Glorious Revolution, decisively rejected this kind of arbitrary governance. The American Constitution, he argues, embodies the lessons learned from these struggles by forbidding legislative or judicial power outside of Congress and Article III courts. Therefore, administrative law, with its parallel system of rulemaking and adjudication, effectively revives the same prerogative structure that constitutional law was designed to eliminate.

IV. Rule Through and Under the Law

Central to Hamburger’s conceptual framework is the idea that government must rule through and under the law—not merely in accordance with vague principles like the “rule of law,” but concretely through legislated statutes and the decisions of constitutionally recognized courts. Administrative law fails this test, because it bypasses these legal forms and substitutes agency rules and decisions for law and judicial judgment.

This, Hamburger argues, fundamentally transforms the nature of American liberty. Under a system of legal liberty, citizens are free to do anything not prohibited by law, and any restriction must pass through the rigorous processes of legislation and adjudication. Under administrative governance, however, liberty is subject to regulations issued and enforced by unelected bureaucrats. Thus, liberty is no longer defined by law, but by discretionary administrative command.

V. Judicial Deference and the Rise of Supralegal Power

A key mechanism that allows administrative law to operate above the law is judicial deference. Hamburger sharply criticizes doctrines like Chevron deference, which instruct courts to defer to agencies’ interpretations of ambiguous statutes. He argues that such deference subordinates the judiciary to the administrative state, echoing the old royal courts’ deference to the king’s prerogative. Judges, he warns, are now expected to yield not only their interpretive authority but also their judgment to administrators.

This, in his view, creates a supralegal power—a power not only outside the courts but above them. Agencies are allowed to issue regulations with the force of law, and courts defer to those regulations rather than exercising independent legal judgment. This undermines the very structure of checks and balances upon which the Constitution rests.

VI. The Illusion of Necessity and Modernist Justifications

Hamburger does not ignore the usual defenses of administrative law. Indeed, he engages them directly. One common justification is that administrative power is a necessary response to modern complexity—a rational adaptation to the regulatory needs of a technological and industrial society. Hamburger is deeply skeptical of this claim. He argues that appeals to “necessity” are the very same justifications offered by monarchs for suspending law in the name of expediency.

Moreover, he exposes the myth of expertise, noting that administrative agencies often lack the technical superiority they claim. Rather than being homes of advanced science, they are often outpaced by the private sector. Worse still, Hamburger warns that administrative agencies and large corporations often collude, creating a regulatory regime that favors established players and stifles innovation and individual autonomy.

VII. Administrative Adjudication: A Return to Star Chamber Justice

Hamburger reserves some of his harshest critique for administrative adjudication, which he sees as a direct descendant of the Star Chamber. In his view, these proceedings deny the fundamental rights guaranteed by the Constitution—especially the right to a jury trial and due process under Article III courts. He argues that allowing agencies to adjudicate disputes involving binding obligations violates the Constitution’s assignment of judicial power to independent courts.

Despite sometimes being statutorily authorized, such adjudication is no less dangerous. Hamburger draws a parallel with the way Parliament once enabled the Star Chamber to act outside common law procedures, showing that mere legislative blessing cannot cure the constitutional defects of extralegal adjudication.

VIII. Rejection of the Fourth Branch Theory

Some defenders of administrative law argue that it should be understood as a “fourth branch” of government. Hamburger sees this as a transparent admission that administrative power lacks constitutional pedigree. The Constitution establishes only three branches—legislative, executive, and judicial—and assigns specific powers to each. There is no room for a fourth. By treating administrative power as sui generis, defenders effectively concede that it is outside the constitutional structure altogether.

This admission, Hamburger contends, is fatal. If administrative power lies outside the Constitution’s grants of authority, then it is not merely problematic—it is unlawful.

IX. The Continental Influence and the German Legacy

Hamburger also traces the intellectual lineage of administrative law to continental European traditions, particularly the German Rechtsstaat and the Napoleonic model of executive authority. He warns that these systems, unlike the Anglo-American tradition, never truly separated law from executive will. In such regimes, administrative “law” was often little more than formalized executive will, rubber-stamped by compliant judges.

This heritage, Hamburger argues, explains the rise of administrative law in the U.S. during the Progressive and New Deal eras, when American legal thinkers imported continental ideas to address the perceived limitations of the Constitution. He sees this move as a tragic abandonment of America’s constitutional identity and a slide into European-style bureaucracy.

X. Conclusion: A Constitutional Reckoning

Philip Hamburger’s Is Administrative Law Unlawful? is a legal tour de force. It is not merely a critique of specific administrative practices, but a comprehensive challenge to the legitimacy of the administrative state itself. By placing contemporary administrative governance in a long historical context, Hamburger exposes its unsettling resemblance to monarchical and medieval power structures. He shows that what many regard as a pragmatic evolution is, in fact, a constitutional regression.

Whether one agrees with all of his conclusions or not, Hamburger forces readers—especially legal scholars, judges, and policymakers—to confront the uncomfortable possibility that the administrative state is built on a foundation fundamentally at odds with American constitutionalism. He calls not for reform, but for repudiation. This is not a book of technocratic suggestions, but a call to restore constitutional government through and under law.

As such, Is Administrative Law Unlawful? deserves to be read not just as a scholarly treatise, but as a powerful polemic—one that demands a national conversation about the future of liberty, the role of government, and the meaning of the Constitution.

References

Hamburger, Philip. Is Administrative Law Unlawful? Chicago: University of Chicago Press, 2014.

Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

Blackstone, William. Commentaries on the Laws of England. Oxford: Clarendon Press, 1765–1769.

Locke, John. Two Treatises of Government. Edited by Peter Laslett. Cambridge: Cambridge University Press, 1988.

The Federalist Papers. Edited by Clinton Rossiter. New York: Signet Classics, 2003.

Epstein, Richard A. “Why the Modern Administrative State Is Inconsistent with the Rule of Law.” NYU Journal of Law & Liberty 8, no. 2 (2014): 491–516.

Sunstein, Cass R. After the Rights Revolution: Reconceiving the Regulatory State. Cambridge, MA: Harvard University Press, 1993.

Strauss, Peter L. “The Place of Agencies in Government: Separation of Powers and the Fourth Branch.” Columbia Law Review 84, no. 3 (1984): 573–669.

Ginsburg, Tom, and Mila Versteeg. “The Global Spread of Constitutional Review.” Oxford Handbook of Law and Politics, edited by Keith E. Whittington et al., Oxford University Press, 2008.

Pound, Roscoe. The Spirit of the Common Law. Boston: Marshall Jones Company, 1921.

Dicey, A.V. Introduction to the Study of the Law of the Constitution. London: Macmillan, 1885.