Is Administrative Law Unlawful?

Merchant Courts, Arbitration, and the Politics of Commercial Litigation in the Eighteenth-Century British Empire

“…Although he acknowledges England's history of prerogative tribunals, such as excise commissions, he argues that such "nonjudicial adjudications" were so widely hated that they "cannot be considered a reliable precedent for contemporary administrative adjudication." 201 In presenting "nonjudicial" tribunals as invariably imposed on an unwilling populace, Hamburger overlooks early modern efforts to erect merchant courts. From 1660 until about 1760, Whigs and Tories who were often skeptical of executive power nonetheless demanded the creation of merchant courts: new juryless tribunals, more akin to administrative tribunals than ordinary courts, without a right of appeal to common law judges.…”

The United States of America as Rechtsstaat: State and Administrative Law as Key to Understanding the Administrative State

“…One of the indicators of an administrative state is the extent to which legally binding rules are issued by the executive branch upon explicit or default delegation by the legislative branch, which is secondary legislation, overshadows primary legislation which is debated and enacted by the legislature. Some scholars argue that the origins of this administrative state go back to colonial times (e.g., Hamburger ; but see Vermeule ); others note that the growth of administrative law dates back to the late nineteenth century when many American scholars who had studied in Germany brought ideas about executive power back to the United States (Bernstein ). They and others agree, however, that the explosion of administrative law dates back to the 1930s (Ginsburg ; Taylor ).…”

Magna Carta, the Rule of Law, and the Limits on Government

“…In other words, Wilson wanted to abandon the ideas behind the English constitution of the 17th century for which the Revolutionary War had been fought in favor of the ideas of the British constitution of the 18th century, which had been defeated at Yorktown. Simultaneously, Wilson pushed for the construction of an administrative state explicitly based on the Prussian template (Hamburger, 2014). Wilson represented the powerful intellectual force of progressivism and modern social science that facilitated the takeover of the "rule of law" by thin interpretations.…”