What Is Administrative Law?
Introduction page 2
It already should be evident that, and questioning administrative law, this book does not question all executive acts. In fact, many executive acts are entirely lawful. It therefore is important to go into more detail about what this book criticizes as unlawful and what it does not.
The executive often issues binding directives-whether rules, interpretations,
adjudications, orders, or warrants. These executives edicts purports to bind not only merely executive officers, but members of the public. To be precise, they purport to bind subjects, meaning the person subject to the United States and its law. The executive edicts, moreover, purport to bind subjects not merely in the sense of reaching a settlement decision about them, but in the deeper sense of legally obligating, constraining, or interfering with them. This executive power to issue edicts
that bind, or confine, subjects have long been recognized as a central feature of “administrative law,” and it is what this book questions. [For unconstitutional conditions, consent decrees, and the notion of government by contract, see Philip Hamburger, “Unconstitutional Conditions: The Irrelevance of Consent,” Virginia Law Review, 98: 479, 548-49, 565-67, (2012).
In the footnote: This book self-consciously
speaks of subjects rather than citizens. According to some scholars, subjects are the subject of a monarch, in contrast to the citizens of a Republic. From the traditional common law perspective, however, subjects are all persons who, on account of their allegiance to a sovereign, are subject to its laws. It thus is possible to speak of the subjects of a republic. For example, whereas the English are subject to the monarch and her laws, Americans are subject to their Republic and its
laws.
The word “subjects,” when understood in this way, is useful in this book because it includes the relevant range of persons-namely, all persons bound by the laws. In contrast, the alternative term, “citizens,” is too narrow, for it excludes all those (such as immigrants and other aliens of amity) who are bound by the laws but are not citizens.
Prerogative and Administrative
(Chapter 2 page 26
The relevance of absolute power for administrative law becomes more clear when one realizes that Anglo-American law has a history of extra-and supralegal power in what was known as the “prerogative.” This was the name of the power claimed by English kings, and it
corresponds to the administrative power claimed by the president or under his authority.
In the footnote: [In the 13th century, it often was said that “the King is prerogative,” meaning that he is exceptional, and “the term prerogative is hardly used except in the objective manner.” Frederick Pollock and Frederick Williams Maitland, The History of English Law, 1:512, ed. S. F. C. Milsom Cambridge
University press, 1968.]
Of course the words “prerogative” and “administrative” can be understood in different ways. Consider broadly, prerogative power can be all power exercised by the king, and administrative power can be all power exercised by the executive. From such a perspective, prerogative or administrative power sweepingly includes any royal or executive exercise of power-regardless of whether it is executive,
legislative, or judicial.
In the footnote: It was later said about distinction between regulations and instructions: “this distinction is inherit in the nature of 2 things. And instruction is a direction to government the conduct of the particular officer to whom it is addressed. A regulation affects a class or classes of officers.” Landram
v. United States (1880), 16 Ct. Cl., 74, 27Int. Rev. Rec., 80
How this document, Landram v. US, 16 Ct. Cls. 74, has been cited.
“Manual of Military Law, 334, 335.* Article 5, Sec. 2, British Code of 1774.* Orders properly so called are in general addressed to, and are intended to regulate the conduct of, all military persons
under the command or control of the superior from which they emanate, or to affect a considerable number of such persons; instructions are directions of similar origin which are …”
- in A Treatise on the Military Law of the United States: Together with the ... and one similar citation
“Since the collector had authorized his deputy at Charleston to
receive income tax returns at his office, we think there can be no question but that the filing of the returns with the deputy collector was a filing within the contemplation of section 241 (b) of the Revenue Act of 1926.”
- in Perkins v. Commissioner of Internal Revenue, 1935
“Taking the sections all together, the purpose of the legislation See,
however, War Department order (A), Jan. 3, 1905.”
- in Opinions of the Judge Advocate General of the Army
Now tie following to the above in the language of 26 USC §6331
Levy may be made upon the accrued salary or wages of any officer,
employee, or elected official, of the United States, the District of Columbia, or any agency or instrumentality of the United States or the District of Columbia, by serving a notice of levy on the employer (as defined in section 3401(d)) of such officer, employee, or elected official.
