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Scholarly Articles

The Inversion of Rights and Power

Philip Hamburger

Focus Area:

Due Process Violations

The due process of law guarantees a right to be held to account only through the processes of an impartial court—something administrative tribunals violate every day.
Due Process Violations

Administrative Speech Controls

The Administrative State tries to squelch speech, especially through licensing, speech bans, and speech mandates. Licensing requires one to get the government’s permission prior to speaking. Nothing was more clearly forbidden by the First Amendment than prior restraints on speech, but such controls are now commonplace.

Administrative Speech Controls

Unreasonable Searches

The Fourth Amendment forbids warrantless searches and seizures of information, yet the Administrative State violates this right to privacy through administrative subpoenas and warrants, automated information collection devices, civil investigative demands, and “voluntary” requests for information.

Unreasonable Searches

No constitutional test is more important than the compelling-government-interest test. It is the foundation of all analysis of constitutional rights. But can a government interest really defeat a constitutional right?

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The Administrative Evasion of Procedural Rights

Philip Hamburger

Focus Area:

Due Process Violations

The due process of law guarantees a right to be held to account only through the processes of an impartial court—something administrative tribunals violate every day.

Due Process Violations

Administrative power does profound harm to civil liberties, and nowhere is this clearer than in the administrative evasion of procedural rights. All administrative power is a mode of evasion, but the evasion of juries, due process, and other procedural rights is especially interesting as it most concretely reveals the administrative threat to civil liberties.

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Nondelegation Blues

Philip Hamburger

Focus Area:

Scope of Authority / Nondelegation

The structure of the Constitution allows only Congress to legislate, only the Executive to enforce laws, and only the Judiciary to decide cases. But the Administrative State evades the Constitution’s avenues of governance when executive agencies issue regulations without statutory authorization from Congress.

Scope of Authority / Nondelegation

The nondelegation doctrine is in crisis. For approximately a century, it has been the Supreme Court’s answer to questions about transfers of legislative power. But as became evident in Gundy v. United States, those answers are wearing thin. So, it is time for a new approach.

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