There is nothing extraordinary about a critique of administrative law; we have been there before with, and since, A.V. Dicey’s early ventures. But Peter Hamburger now in a 600 page book entitled, Is Administrative Law Unlawful?, innovatively assails all over again the very foundations of administrative law.
In saying that ‘administrative power is actually [very] old’ he strikes a common chord; the more contentious remains the assertion that ‘[i]t revives what used to be called prerogative or absolute power, and it is thus something that the [USA] Constitution centrally prohibited’. Hamburger says that ’the rise of administrative law is essentially a re-emergence of the absolute power practiced by pre-modern kings’, ‘a latter-day version of a recurring threat—a threat inherent in human nature and in the temptations of power’.
If this is indeed so, it is conceptually the case that it remains contaminated by ‘three central elements of…absolutism: extra-legal power, supra-legal power, and the consolidation of power’. It is extra-legal because it ‘binds Americans not through law but through other mechanisms—not through statutes but through regulations—and not through the decisions of courts but through other adjudications’. And it is ‘supra-legal in that it requires judges to put aside their independent judgment and defer to administrative power as if it were above the law—which our judges do far more systematically than even the worst of 17th century English judges’. And thus administrative law signifies the ‘the repeated ebb and flow of absolutism on the one side and law on the other’. We all should ‘speak of administrative power—indeed, of absolute power or more concretely of extra-legal, supra-legal, and consolidated power. Then we at least can begin to recognize the danger’ (see Imprimis 43: 9 (2014) for the above excerpts). And the danger is that prerogative power has ‘crawled back out of its constitutional grave and come back to life in administrative form’ (See P Hamburger at p.494).
Unquestionably, while ignorance of law is never an excuse, denial of access to law seems to be a hypernorm of much of regulatory law. No one who has read the analysis of the Federal Register in the US would disagree that public access to regulatory law is hard to attain. And yet eminent administrative lawyers in America have rubbished the danger of which Hamburger speaks.
Professor Adrian Vermeule has written rather extensively to demonstrate that: ‘Hamburger offers a highly stylized constitutional vision derived from the English experience, interestingly cross-bred with American high school civics’ based on ‘a desperately shaky understanding of administrative law’ (see Vermeule at p7). This reminds me of what Professor Hans Kelsen told me: that he had once done a one- sentence book review of a book entitled ‘The Secret Of Hegel’s Philosophy’ congratulating the author for keeping it a secret for 600 pages!
Vermule, in contrast, celebrates the public secret of administrative law. Far from the denunciation of the dangers of ‘soft form of “absolutism”’ (see Vermeule at p3), Vermeule is clear that administrative law serves some necessary function in modern governance. Courts and jurists everywhere build the very foundation of administrative law and jurisprudence on the maxim that the essential functions of legislative power may not be delegated; Vermeule is quite right to insist that this has been so in the American Supreme Court (SCOTUS) as well. Indeed, as he observes, ‘Hamburger’s elaborate proof that subdelegation of legislative power is forbidden amounts to pounding on an open door’ (see Vermeule at p 13). He endorses a favourite thesis of SCOTUS that subdelegation has to be within ‘the boundaries of the statutory authorization’(see Vermeule at p 16).
The issue of where to set appropriate boundaries is a vexed question before the courts. Justice K.K. Mathew of the Supreme Court of India long ago expressed the view that it was ‘unedifying’ to find legislative intention in the ‘nooks and crannies’ of the Act! But in India the rule seems to be that as long as there legislative power to repeal a statue, delegation stands justified! (see M.K. Papiah & Sons v. The Excise Commissioner (1975) 1 SCC 492; and U Baxi). But courts in the Anglo-American orbit seem unwilling to do any more than this and this is precisely the loud alarm bell that Professor Hamburger is sounding! How does one distinguish between saying that something is a necessary evil and that something is an evil?
In the era of demonstrable, and non-reversible, anthropogenic harm, we need to face the issue of the nondelegation principle more resolutely than ever. While the Dutch District Court (in the 2015 decision in Stichting Urgenda v Government of the Netherlands) passed a Reduction Order requiring the State to reduce its greenhouse gas emissions by at least 25 per cent by the end of 2020, SCOTUS’ performance in a 2011 decision – Am. Elec. Power Co. v. Connecticut – not merely raises the heavily discredited doctrine of political questions but also entrusts to the EPA the power to decide the emissions restrictions. SCOTUS ruled: ‘federal judges may set limits on [GHG] emissions in the face of a law empowering EPA to set the same limits, subject to judicial review only to ensure against action “arbitrary, capricious, . . . or otherwise not in accordance with law”’. During the hearing several Justices articulated scepticism concerning whether it was proper to deploy federal common law in this context. For example, Justice Stephen Breyer asked: ‘if the courts can set emission standards, why can’t they also set carbon taxes, which are likely to be more effective?’; and Justice Ginsburg remarked that: ‘Congress set up the EPA to promulgate standards for emissions, and . . . the relief you’re seeking seems to me to set up a district judge, who does not have the resources, the expertise, as a kind of super EPA’.
In other words, the planetary fate depends on rule by experts, often hired at one time by the same MNCs responsible for climate change and global warming! Any pursuit of green global governance requires that we rethink carefully the limits of delegated legislation and rule by experts.
Professor Baxi is Emeritus Professor of Law at the University of Warwick and Delhi University.