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Delegating Or Divesting?, Philip A. Hamburger
Delegating Or Divesting?, Philip A. Hamburger
Faculty Scholarship
A gratifying feature of recent scholarship on administrative power is the resurgence of interest in the Founding. Even the defenders of administrative power hark back to the Constitution’s early history – most frequently to justify delegations of legislative power. But the past offers cold comfort for such delegation.
A case in point is Delegation at the Founding by Professors Julian Davis Mortenson and Nicholas Bagley. Not content to defend the Supreme Court’s current nondelegation doctrine, the article employs history to challenge the doctrine – arguing that the Constitution does not limit Congress’s delegation of legislative power. But the article’s most …
Early Prerogative And Administrative Power: A Response To Paul Craig, Philip A. Hamburger
Early Prerogative And Administrative Power: A Response To Paul Craig, Philip A. Hamburger
Faculty Scholarship
What does English experience imply about American constitutional law? My book, Is Administrative Law Unlawful?, argues that federal administrative power generally is unconstitutional. In supporting this conclusion, the book observes that eighteenth-century Americans adopted their constitutions not only with their eyes on the future, but also looking over their shoulder at the past – especially the English past. This much should not be controversial. There remain, however, all sorts of questions about how to understand the English history and its relevance for early Americans.
In opposition to my claims about American law, Paul Craig lobs three critiques from across the …