August 15, 2014 — America's bureaucracy, Sins of commissions: How Americans have come to labour under a dual system of government LONDON (The Economist) August 9, 2014 — Books that address not who but what runs America may lack for personal interest, but they do have a growing appeal. An interesting new work by Philip Hamburger, a law professor at Columbia University, dispenses with the tiresome back and forth between Republicans and Democrats. Instead, it focuses on Washington's permanent administration-the ever-expanding federal bureaucracies that have come to play a central role in health care, finance, housing and work, and large roles in education, energy and whatever else constitutes the American system.
The title of Mr Hamburger's book, "Is Administrative Law Unlawful?", is both a strength and a weakness. It illuminates the shallow legal foundation of these agencies, but it also creates the misperception that the book deals merely with a subset of law rather than with how America is governed and how the current structure was anything but inevitable. This is particularly important because the conventional wisdom about this process, as Mr Hamburger documents, is wrong.
At the core of this misperception is the idea that these agencies originated in the 1930s under Franklin Roosevelt as a necessary and pragmatic response to the complexities of modern life that could not have been envisioned by the 18th-century authors of America's constitution. A more accurate accounting should date back to at least the Roman empire, with the jurist Ulpian's observation (before he was murdered by an unpersuaded mob) that "what pleases the prince has the force of law."
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For background on the historical problems identified in administrative law in U.S. fisheries see the following:
Special Master finds "arbitrary and capricious" actions "coerced" an "unfavorable settlement" and destroyed the value of a New Bedford business
Dan Rather Reports on NOAA enforcement
CBS News Reports on NOAA Enforcement
Lawmakers, fishermen call for more federal agency reforms
Review of NOAA Fisheries Enforcement Asset Forfeiture Fund
Report and Recommendation of the Special Master Concerning NOAA Enforcement Action of Certain Designated Cases
Decisions Regarding Certain NOAA Fisheries Enforcement Cases Based on Special Master Swartwood's Report and Recommendations