Episode 413: Writs Wrangles and Administrative Law

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Writs Wrangles and Administrative Law are very much interrelated in our modern times. Yet the problem with them is no different than what began with the ‘Writs of Assistance,’ which James Otis challenged in 1761.Writs Wrangles Administrative Law

History tells us of the abuse of Writs such that the actions became one of the many explicit complaints that moved the Colonies closer to separation from Great Britain. Ultimately, the underlying issues became the impetus for the 4th Amendment.

Wrangles Continue To The Present

I use ‘wrangles’ in the context of both Writs and Administrative Law. Both are ‘disputes and arguments, that are long suffering in time and complicated.’ We have to understand that human sinful unregenerate nature will have individuals or group moving to dominate those in their families, towns, counties, states, nations, cultures, etc.

Use of writs in the manner of 1761 and presently as by the administrative state was once held back by the courts. Quoting from her paper in the References, Susan E. Dudley writes:

‘Until the early twentieth century, the courts interpreted the separation of powers implicit in Articles I through III of the Constitution as prohibiting Congress from delegating its legislative powers to administrative agencies. In 1892, the Supreme Court declared: “that Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”Field v. Clark, 143 U.S. 649 (1892).)</i This is known as the nondelegation doctrine.

By 1928, the Supreme Court had softened this interpretation of the separation of powers. It took a different view of the nondelegation doctrine in J. W. Hampton v. United States, when it found that Congress could delegate legislative power as long as the statute included an “intelligible principle” to guide executive action. (J. W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).) That is, the Supreme Court said that delegation is constitutional as long as Congress provides executive agencies with an unambiguous standard to guide rulemaking.’

We are in the pickle of the present from the power-mongers wrangling over control of the administrative agencies and keeping the citizens numb or better yet, dumb, to their responsibility to participate in governance.

Administrative Law Over the Top

The burgeoning thought leaders, academics and power-mongers of the early 20th Century were intent on cutting out the middle man of governing and forcing full administrative control over people, party and all government.

‘…For they conclude that man is in small part rational: that his mental equipment is weak and inadequate, that he is immersed in the details of his own petty concerns and moved in overwhelming measure by selfish and unlovely emotions, drives, and urges; and that public opinion is nothing but a term to denote a resultant of non-rational forces.

Public administration has been little touched by such ideas. As has been stated, there is a record of increasing sophistication as to the part the public may be expected to play in the governmental process, and an attempt has been made to reduce and simplify the role of the citizen by such means as the short ballot and attractive, simplified governmental publicity…’ – The Administrative State, A study on the Political Theory of American Public Administration.

‘Today, scores of federal agencies issue thousands of regulations every year. The Code of Federal Regulations contains 242 volumes and more than 185,000 pages. That is four times as big as the U.S. Code of Laws passed by Congress, which contains fewer than 44,000 pages.’ – Milestones in the Evolution of the Administrative State

Philip Hamburger of Columbia Law School writes in his essay in Imprimis:

‘But there are problems with this conventional history of administrative law. Rather than being a modern, post-constitutional American development, I argue that the rise of administrative law is essentially a re-emergence of the absolute power practiced by pre-modern kings. Rather than a modern necessity, it is a latter-day version of a recurring threat—a threat inherent in human nature and in the temptations of power.’ –

Last to consider for now, in his conclusions ending his Paper ‘Anministrative Law in the United Stated – Past Present and Future, Alfred C. Aman of the Indiana University Maurer School of Law writes:

‘In non-constitutional cases, the deference to executive decision-making shown by the Court in Chevron v. N.R.D.C. is likely to continue to dominate the judiciary’s approach to agency policy decisions and agency interpretations of unclear statutory provisions. This is not to say that the hard look doctrine or reasoned decision-making is dead. But rather that it will take a strong case indeed before the Supreme Court is likely to scrutinize agency decisions. This is not to say that lower courts might not continue to ride herd on certain agencies, even in policy contexts, but the general trend will continue to treat executive policy decisions as largely beyond the Court’s competence. Of course, new global regulatory statutes that explicitly incorporate market approaches as statutory, regulatory tools, might find future courts scrutinizing agency actions to be sure that they are sufficiently efficient. Most likely, however, deference to the executive will prevail.

Increasing use of market concepts and market approaches to regulation will not replace a public law model of administrative law. Market approaches are not a return to 19th century individualism. The market is and will continue to be seen as a regulatory tool. Even in the global era of administrative law, the New Deal will continue to play an important conceptual role.

Sam Adams Wisdom

Writings of Samuel Adams, Volume I, pages 26, 27

September, 1765 | Letter of Instructions of the Town of Boston to Its Representatives in The General Court.

‘…the most essential Rights of British Subjects are those of being represented in the same Body which exercises the Power of levying Taxes upon them, & of having their Property tried by Jurys: These are the very Pillars of the British Constitution founded in the common Rights of Mankind. It is certain that we were in no Sense represented in the Parliament of Great Britain when this Act of Taxation was made : And it is also certain that this Law admits of our Propertys being tryd, in Controversys arising from internal Concerns, by Courts of Admiraltry, without a Jury. It follows, that at once, it annihilates the most valueable Privilege of our Charter, deprives us of the most essential Rights of Britons, & greatly weakens the best Security of our Lives, Libertys & Estates; which may hereafter be at the Disposal of Judges, who may be Strangers to us, & perhaps malicious, mercenary, corrupt and oppressive.’

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1. 1763 The Rights of the British Colonies Asserted and Proved, by James Otis (a response to the Writs of Assistance)

2. Speech Against Writs of Assistance, by James Otis Fevruary 24, 1761

3. The New Writs of Assistance, by Ian Samuel, Harvard Law School | Fordham Law Review 2018, Volume 86 | Issue 6

4. The NSA’s “General Warrants”: How the Founding Fathers Fought an 18th Century Version of the President’s Illegal Domestic Spying By David Snyder

5. History and Scope of the Amendment: SEARCH AND SEIZURE | FOURTH AMENDMENT, Justia, US Law

6. What the All Writs Act of 1789 Has to Do With the iPhone | How a law signed by George Washington is being applied to Apple, by Danny Lewis February 24, 2016

7. Investopedia: Writ: Definition in Law, Types, and Examples

8. The History and Danger of Administrative Law | Philip Hamburger, Columbia Law School, Imprimis, SEPTEMBER 2014 | VOLUME 43, ISSUE 9

9. Milestones in the Evolution of the Administrative State | by Susan E. Dudley,

10. Amdt4.2 Historical Background on Fourth Amendment

11. Administrative Law in the United States — Past, Present and Future by Alfred C. Aman | Indiana University Maurer School of Law

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