When law in America can be made by executive “pen and phone” alone — indeed, by a White House press release — we’re faced starkly with a fundamental constitutional question: Is administrative law unlawful? Answering in the affirmative in this far-reaching, erudite new treatise, Philip Hamburger traces resistance to rule by administrative edict from the Middle Ages to the present. Far from a novel response to modern society and its complexities, executive prerogative has deep roots. It was beaten back by English constitutional ideas in the 17th century and even more decisively by American constitutions in the 18th century, but it reemerged during the Progressive Era and has grown ever since, regardless of the party in power.
In this nation, we have a problem where Congress no longer represents the people. Because our representatives are more concerned about re-election, they have abrogated their authority to an unelected bureaucracy that passes rules We the People have no say over but that have a real effect on our daily lives. When we complain to Congress about these regulations, our representatives can play the good cop and claim they agree with us but there is nothing they can do because regulations are passed by the bad cop, bureaucracy.
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It is time for We the People to stand up and let our voices be heard. No longer can our elected representatives allow an unelected bureaucracy do the job they were elected to do. We live in a republic, which means We the People are entitled to have our representatives vote on the laws that affect our lives.
The new slogan for this movement should be “No regulation without representation.” While some are pushing for a constitutional amendment that requires Congress to have a say in the regulation process, this effort should be extended to all 50 states. Each state should not allow its bureaucracy to pass rules absent the consent of the state legislature.
“Is Administrative Law Unlawful?” by Philip Hamburger