Book Review

Date01 December 2017
Published date01 December 2017

1 The Constitution of the United States was signed in 1787.1 It was crafted 11 years after the Declaration of Independence, by the collective brilliance of its framers. Those same brilliant minds were suspicious of unchecked, autocratic power. They therefore created a complex system of political governance based on the doctrine of check and balance in which the legislative power would be in the hands of Congress, the executive power would be wielded by the President, and the judicial power in an independent Supreme Court which is to ensure that neither Congress nor the President acts in excess of its powers.

2 Laws are made by Congress and implemented by the President who has executive power to implement the laws passed by Congress. In the course of time the world has observed this complex system at work with a mixture of admiration, awe and wonderment. There are times when the general consensus is that the system is too complicated for duplication elsewhere. It remains to this day, sui generis.

3 Within the first ten days of his presidency, the 45th President of the United States of America, Donald Trump, had signed executive orders that were controversial. In one, the banning of Muslims from seven countries from entering the US, led to a court ordering a stay of that order. It even resulted in the President sacking the Attorney-General for refusing to appeal against that court's decision. This sets the dramatic and contemporary context for Adrian Vermeule's book, Law's Abnegation.

4 If the Executive were merely to implement the Acts of Congress, there would be little that jurists would shout about, but in the implementation of Congressional will, the Executive itself exercises binding legislative and judicial power. The court is the only check when the Executive oversteps its limits. Philip Hamburger has written about

his wariness of the binding power of the Executive. He holds the view that:2

The power to bind is a power to constrain liberty. Although only Congress and the courts have the power to bind and thereby confine liberty, this is exactly what executive and other administrative bodies claim to do through the administrative law.

5 Hamburger propounds the view that the consolidated binding and judicial aspects of executive power make it extralegal as well as supralegal.3 Tracing through the history of prerogative power, Hamburger observes that “although prerogative lawmaking and adjudication are long gone, administrative versions have taken their place”.4 Hamburger's claim from history is refuted by Paul Craig.5 His claim from law is refuted by Vermeule in a review of Is Administrative Law Unlawful.6 In this book, Vermeule expands beyond his criticism of Hamburger's claim in law and propounds his view that administrative law is not only lawful but is flourishing. That is not because the Executive and Congress had shackled the law but that the courts have ceded power to the State. Vermeule's central thesis is that the administrative state is flourishing not because the law's empire (a Dworkinian phrase) has been vanquished from the onslaught of external forces, but that the law has ceded power voluntarily. But he concludes that he is not claiming that “law-enforced-by-the-courts and the administrative state cannot co-exist at all, just that both cannot simultaneously be paramount. Only one can be master; and the law has...

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