- Justice Rafael Martinez Torres, Supreme Court of Puerto Rico
The recent indictment of Texas Governor Rick Perry has garnered huge press attention. In an unusual alignment, commentators from both the left and the right have been highly critical of the indictment, with the New York Times editorial board calling it “the product of an overzealous prosecution.” But condemnation of the indictment has not been perfectly unanimous, and a few commentators have now come out in support of the indictment. We examined all the details on a Teleforum conference call.
At bottom, in Kuretski v. Commissioner, presidential power is at stake. Judges of the U.S. Tax Court (26 USC 7443(f)), were arguably characterized by the U.S. Supreme Court, in Freytag v. Commissioner, as exercising a portion of the judicial power of the United States. Recently, however, the D.C. Circuit Court of Appeals disagreed when it found that the Tax Court exercises only executive power. What are the implications of the D.C. Circuit Court’s opinion on the president’s removal power? Has the D.C. Circuit misread Freytag, or faithfully applied it?
In his new book, Is Administrative Law Unlawful?, Professor Philip Hamburger answers the provocative question posed in his title in the affirmative. Rather than accepting administrative law as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative and traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the United States Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Professor Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the U.S. Constitution — and constitutions in general — were designed to prevent.
Professor Hamburger joined us on a Teleforum conference call to discuss his new book, with additional commentary from Adam White. Mr. White’s recent review of the book for the Wall Street Journal is available here.