A Constitutional Absolutism? On Philip Hamburger’s The Administrative Threat. By Gerardo Muñoz.

AdministrativeThreatPhilip Hamburger’s most recent book, The Administrative Threat (Encounter Books, 2017), is a legal pamphlet as well as constitutional call to arms of sorts. Deliberately written for the general public with the intention of popularizing the central tenets of his otherwise more technical work Is Administrative Law Unlawful? (U Chicago Press, 2015), Hamburger fuses a warning with a call to question the increasing danger posed by the expansion of the administrative state in American public law. In his view, no other force and legal development is undermining the core and purpose of civil liberties as much as administrative law, which today extends to all spheres of social life. This bureaucratic power is not only an existential threat to personal freedoms, but also a betrayal to the original intent of the Constitution.

The idea harboring this perception is that decision-making is only possible on purely market or commercial grounds, which administration continuously obstructs under the guise of regulation. The book cuts sharply through a martial tone: “For better understanding of the administrative threat one must turn to law…for although much administrative state power is economically inefficient, all of it is unconstitutional” (Hamburger 2). But how did the development of legality and American public law reached such a boiling point? This a question that Hamburger must sidestep, and at times reduce to a barely credible narrative regarding a handful of American scholars that studied German administrative law at the turn of the last century. Hamburger accurately notes that in the last century (roughly from 1917 to 2017), there has only been ‘rise and rise’ of administrative delegation. This is undeniable. James M. Landis records in The Administrative Process (1938) about 12-14 federal agencies in 1933. Today there are between 240-456 federal agencies, including sub-agencies, quasi-agencies, and departments. And as if more alarm is needed, each landmark opinion through the century by the Supreme Court has incrementally extended agency statutory powers for execution and judicial interpretation.

In what follows, I want to critically comment the three premises that support Hamburger’s attack on the legitimacy of administrative state: 1. a historical comparison with the King James monarchy in order to make the case that we are returning to a regime of legal absolutism; 2. that we are witnessing the corruption of the separation of powers, which has expounded extralegal boundaries; 3. and the libertarian assumption that civil liberties are prey to the tyrannical might of the administrative state. Hence, as Hamburger says verbatim, the administrative state is fundamentally disloyal to at least two tiers of governmental authority: on the one hand, to an arcana, and on the other, the more real ground of civil liberties and negative freedom (Hamburger 23). While the first lies in that of the level of principle, the second forms that of integrity. It is important to note that, as Hamburger does at the outset of the book, his critique is at the level of legitimacy. Hence, he is not necessarily interested in putting forth a critique of political economy or regulatory reform, which would entail an acceptance of the administrative state one way or another.

Let us take the first premise, which assumes that the administrative state brings about a new absolutism. Hamburger establishes a comparison with King James’s absolute monarchy, which represented a model of constant prerogatives and forms of adjudication to agency discretion, in permanent conflict with legislative decision-making, and interpretative authority of judges. For Hamburger this all takes place in the present, but the situation is much worse, since the administrative state seems to have achieved King James’ absolutist intention. For instance, Hamburger writes: “the lawmaking interpretation that James desired for his prerogative bodies has become a reality for American administrative agencies. Federal judges’ show varying degrees of deference to agency interpretations, and the agencies therefore can use their interpretation to create law” (Hamburger 9). Ultimately, this means that administrative agencies have come to inhabit a sort of juridical monad that can interpret, execute, and legislate its statutory norms and facts in clear violation of the principle of the separation of powers.

Hamburger observes the watershed 1984 decision Chevron vs. National Resources Defense Council, in which Burger Court decided that every time there are statutory ambiguities, judges must defer to agency for clear interpretations, with horror. This does not mean that an agency will rule every time on the agency’s behalf, but it has come to establish what is known as the principle of ‘deference’ in a two-step model. Mainly, that if Congress does not express direct intent on the statute, the agency can uphold the interpretative prerogative for clarification of any ambiguous component. The deference principle to agencies not only violates the principle against subdelegation (the common law axiom delegata potestas non potest delegari), but more importantly for Hamburger it confuses the spheres of interpretation and execution in the hands administrative quasi-judges. The prefix hints at the fact that experts and technicians of different epistemological spheres now have entirely displaced the imperial pretensions of the independent judicial branch. At the same time, we know that there are no judges freed from inter-dependence, and that the very legal process is always politically binding [1]. This transformation does entail that the judiciary is noww marginalized to a thin discretionary position to arbiter reasonable goals.

Furthermore, it is not the case that the way deference is understood in American administrative law hinges on a principle of sub-delegated power. Adrian Vermeule has convincingly argued how the specification of statutes is conceived within the executive branch [2]. Hamburger insists, however, in that “administrative power resembles old absolutism” (Hamburger 14). Absolutism is defined as extra-legality, and as a fundamental and consistent evasion of law (sic). Curiously, Hamburger fails to explain in which way the expansion of the administrative state legality has moved the boundaries unto an extra-legal domain over time. The administrative state cannot amount to a new monarchism for the simple reason that there is no monarch who is deemed as the sovereign mediator capable of dispensing his potentia absoluta without retrains.

The administrative state is a process of self-rationalization towards judicial abdication to experts, abandoning the empire of courts towards reasonable decision-making. It is an enterprise to limit incongruousness and contingency. As we know, this is one of the trademarks of the modern legitimacy. In other words, the administrative state follows integrity, and not the arcanum of political theory. This is something Landis already had in mind in the 1930s [3]. If absolutism is grounded in a principle of contingency and theological nominalism, modern rationality and administration bends towards rationalization of law’s integrity [4]. In doing so, the administrative state is a highly sophisticated machine to regulate all possible risks. Here the question of a constitutionalism of risk within the expansion of the administrative delegation becomes relevant.

Hamburger, in a sense, seeks to revive the specter of Elizabethan judge Edward Coke, while ignoring that the becoming of the administrative state has pluralist aims, at odds with vertical decision protocols vested in the absolute sovereign [5]. The administrative state is a modern legal development, and any comparison to the English monarchy is a serious bend. From a historiographical standpoint, Hamburger’s premise is also ambiguous when he writes: “Early Americans, however, were familiar with English constitutional history, and they therefore were well aware of the danger from the absolute power and its extralegal paths” (Hamburger 19). It is not the case that there is a firm consensus about the patriot political beliefs about presidentialism or the British Monarchy. Eric Nelson in his landmark The Royalist Revolution (2014) has studied how republican patriots were comfortable with ideas of strong centralized executive power in fear of the British parliamentary form regarding commerce and taxation. And here one should ask to what extent the imperial presidency could also be justified on “originalist” grounds. But this is beside the point, since the legal development of administrative law is one thing, and the Atlantic political theory is another.

This takes us the second point regarding the separation of powers. The main problem with Hamburger’s account is that it fails to engage with Adrian Vermeule’s sound critique in Law’s abnegation (2016) of a certain political attachment to an idolatrous understanding of the separation of powers. Vermeule terms ‘idolatry of the separation of powers, in reference to a mechanic execution of the three branches (legislative, executive, and judicial). In this framework, anything that is excess to it is part of a narrative of betrayal. But it should not be so. This is what Landis called rather humorously the “attachment to the number three”:

“To condemn the administrative process simply because it is a fourth branch of government is not to consider what a branch implies. Four, five, and six branches of government may, of course, coexist without violating Montesquieu’s maxim, for the ultimate source and the ultimate division of power remains the same. It is the relations of the administrative state’s three departments of government that are important”  [6]

Needless to say, a mechanistic fixation to the tripartite separation of powers fails to account for the ways in which the administrative state is already an expression of specifically allocated knowledge, decisions, and state-national-agency conflicts over a long period of time.  The question that should be asked is not in which way the administrative state profanes a sacrosanct Madisonian separation of powers structure, but rather whether there are powers in separation that are legitimate within the classic design of contemporary government, which is what Vermeule brings to bear in his important book [7]. The fact that Hamburger is silent about the different arguments made on behalf of the administrative state’s legitimacy (Landis, Kagan, or Mashaw ), speaks about his originalist obliviousness to historical and legal evolutionary nature of the separation of powers. As a process of self-rationalization, the legitimacy of the administrative state is rooted in its immanent force against any transcendental arcanum. Hence, the way to test the status of legitimacy is not by probing on the grounds of the separated powers in 1789 or the seventeenth century, or in terms of what Madison or Montesquieu thought of them, but rather on how well those powers today can withhold actions within a frame of reasonable judgment regarding the material need of the res publica. The administrative state does not stand for a vicarious being, since its delegated powers are not ideal immovable concepts, but rational conditions for risk management of human action.

This leads me to the third and final premise of The Administrative Threat. Hamburger does have something to say about the current condition of citizenship, and it comes by way of the libertarian defense of civil rights. The idea here is that the administrative state trumps individual rights in the name of “public” rights, which Hamburger calls a “disgraceful assault on the Bill of Rights and the due process” (Hamburger 35). This argument is supplanted with a meditation on the historical valance between voting rights and the administrative state. Going as far as to the Wilson presidency, Hamburger shows that throughout the twentieth century, bureaucracies were at odds with the voting rights of disfranchised minorities. Of course, the implicit assertion here befalls on a defense of the courts, primarily the judicial activism of the Warren Court, which Bruce Ackerman, on the opposite side of the political spectrum has called the last legal revolution in American constitutional development [8]. This is even truer today in light of the Shelby County decision, and the rise of Kris Kobach or Jeff Sessions to national public office, both intellectually committed to voting suppression [9]. One could say that both Hamburger and Ackerman, albeit in very different ways, lament the dawn of the traditional judicial authority. But even if there were a one-direction movement between the expansion of rights and the rise of the administrative state, it seems illogical to defend a return of a court-centric model on the basis of past historical experiences.

If we are, indeed, at the end of the court-centric legal revolution model, are we to assume that the dismantling of the administrative state will restore its capacities? I am doubtful of the eschatological weight of such a proposal. And if voting rights is a concern for Philip Hamburger, why isn’t electoral reform an optimal option for democratic expansion? Of course, this would necessary entail something like a Federal Voting Commission, which would in turn require more of the administrative state. But we are in no position to think that if we were to imagine the end of the administrative state (even as a thought experiment), a new type of liberty would be distributed across the board.

Since today we are facing the end of the state form, any historical analogies with the past tremble on very weak grounds. Furthermore, we know that beyond the moment of casting a vote a ballot, a civil equality protection really amounts, as Anatole France used to say, to whether we chose to sleep in a park bench or under bridges. While might be true is that the administrative state is a neutralizer of political dynamics, to use the language of Carl Schmitt; it is in no way reasonable seek its destruction in the name of a libertarian ideal of freedom within an unequal social space. It is defeatist to turn to political theory in exchange for the integrity of administrative legality, as Hamburger seems to do here.

It is rather strange for a libertarian to end a book on a legitimacy crisis quoting Lenin. But there is another implicit paradox here on Hamburger’s part; mainly, that while Lenin offered a theory of state, we cannot say the same for Hamburger. The modern state was able to implement and model itself with commerce, but much harder is to image a state emerging from contemporary anarchic markets. Hamburger writes in a section sarcastically subtitled what is to be done?: “Lenin asked his fellow Russians, “What is to be done?”. Fortunately for Americans, the answer is not revolution but a traditional American defense of civil liberties. To this end, Americans will have to work through all three branches of government. Of course, none of the branches have thus far revealed much capacity to limit administrative power” (Hamburger 61). This is a self-defeating argument, since as Vermeule has argued quite convincingly, even if one could ‘magically’ undue the administrative state and return to the original institutional design of 1789, it will evolve into the administrative state. This is an argument centered on the integrity of the American legal development that Hamburger needs to ignore in order to render somewhat possible the return to the  idolatrous originalism of the separation of powers and principled judicial review. The other part of the ‘what is to be done’ plan resonates with a populist overtone: “Ultimately the defeat of administrative power will have to come from the people. Only their spirit of liberty moves Congress, inspires the president, and braces the judges…” (Hamburger 64).

But who are the People? Is We The People the progressive mobilizing force within a constitutional regime? Is the People here a spirit or idea for the return to the courts? It is difficult to say, mainly, because Hamburger himself has no idea either. I take this to be the impasse of libertarian and liberal thought facing the irreversibility of the administrative state. This explains why libertarians, at times, equate deregulation with lessening the administrative power. This impasse is, in effect, the same currently stamping Trump’s strange brand of populism, which has, on one end, the mission to ‘destroy the administrative state’, and on the other, the nationalist protectionist banner to cushion transnational market forces. For better or worse, neither of these two goals seems plausible together. At best, they represent a double-bind of the liberal impasse. Only in this sense, the administrative state is a temporary katechon [10].

The trumpist complexio oppositorum in the form of a schizophrenic symptom is showing, paradoxically, that the administrative state will only be reinforced through new checks and balances emerging from executive administrative inefficiency. We are now in conditions to reach a somewhat different conclusion from that of Hamburger’s: we are far from an absolutist monarchic regime, since the human cannot endure the absolutism of reality devoid of a sense of anticipation [11]. The principles of delegation and anticipation seem to be two components of the administrative state that have their legitimacy in modern self-rationalization. In the end, it might be Hamburger who, in validating an ostensible and yet dissolute world beyond administration, promises the humanity an archaic absolutism of an unbearable nature. However, no man can live in the absolute. But even if we are to image an alleged triumph of an original law under the supervision of a New Coke, this would require in the form of an eternal recurrence, the invention of the administrative state.






  1. See Braden, George D., “The Search for Objectivity in Constitutional Law”, Faculty Scholarship Series. 4031, 1948. However, for a contending non-political moral stand of the judicial process, see Alexander Bickel. “Constitutionalism and the Political Process”, in The Morality of Consent. New Haven: Yale University Press, 1975.
  2. See Vermeule’s argument on the lawfulness of administrative law on the principle of delegation through executive power in Law’s Abnegation (2016), 50-54 pp.
  3. Landis will write in The Administrative Process (1938): “A similar development with reference to the administrative seems more a matter of time than of political theory, of demonstration by the administrative that intervention of this character is futile and tends more to prejudice than to further a client’s cause”. 102-103 pp.
  4. Hans Blumenberg. Legitimacy of the Modern Age. MIT, 1985. 125-205 pp.
  5. Sunstein, Cass & Vermeule, Adrian. “The New Coke: On the Plural Aims of Administrative Law”. The Supreme Court Review, Number 1, Volume 2015.
  6. Landis, James M. The Administrative Process (1938). 88 pp.
  7. Vermeule Adrian, Law’s Abnegation: from law’s empire to the administrative state (Harvard U Press, 2016). 56-87 pp.
  8. Ackerman, Bruce. We The People III: The Civil Rights Revolution. Cambridge: Harvard University Press, 2014.
  9. Berman, Ari. “The Man Behind Trump’s Voter-Fraud Obsession”. New York Times, June 13, 2017. https://www.nytimes.com/2017/06/13/magazine/the-man-behind-trumps-voter-fraud-obsession.html
  10. On the administrative state as a counter-schmittian katechon, see my “The administrative state as a second Leviathan: a response to Giacommo Marramao”. Although I do not mean by any means that the administrative state is a universal katechon in the way that the Church and the early modern state were, but this I will try to develop somewhere. https://infrapolitica.wordpress.com/2017/05/25/the-administrative-state-as-second-leviathan-a-response-to-giacomo-marramao-by-gerardo-munoz/
  11. On the absolutism of reality and the anthropogenesis of anticipation as an intrinsic separation of powers, see Hans Blumenberg’s Work on Myth (MIT, 1985). 2-40 pp.

Savage Moralism.


Tim O’Brien’s The Things They Carried, a text about the Vietnam War first published in 1990 (Boston: Mariner, 2009), includes one of those phrases that give the reader pause because they make him suspect there is more where it came from.   The phrase is a hapaxlegomenon, or worse: not only is it never used again, the comments that follow it appear as a non-sequitur, and one is uncertain about how to read the thing. The phrase reads: “the aesthetic purity of absolute moral indifference” (77).   The full phrase is: “any battle or bombing raid or artillery barrage has the aesthetic purity of absolute moral indifference—a powerful, implacable beauty.”   So the reader must consider why absolute moral indifference could or should be aesthetically pure, and whether there can be absolute moral indifference, and whether, should it exist, it is the right response to an artillery barrage or an event at the office; and more, and perhaps disturbingly, whether absolute moral indifference could or should rise to the rank of a powerful and implacable beauty.   How would it be, if we managed to live in absolute moral indifference? Would it really be a matter of implacable beauty? It is hard to imagine it. One can hardly say no, and one can hardly say yes. There is some danger there, in that phrase. The danger is intriguing.

The next paragraph—but the reader must decide whether the next paragraph means to explain that phrase, or to hide it—talks about the intensity of sensations the proximity of death brings along. “Proximity to death brings with it a corresponding proximity to life” (77). “All around you things are purely living, and you among them, and the aliveness makes you tremble. You feel an intense, out-of-the-skin awareness of your living self—your truest self, the human being you want to be and then become by the force of wanting it” (77). One get this, intuitively.   Some end of pretenses, being down to the wire brings about a revelation, an unconcealment. The unconcealment is beautiful and you want to dwell in it, not give it up.   What does this have to do with absolute moral indifference? Is this desire already morally indifferent? But the next sentences seem to affirm the very opposite: “In the midst of evil you want to be a good man. You want decency. You want justice and courtesy and human concord . . . you are filled with a hard, aching love for how the world could be and always should be, but now is not” (78).

Are we dealing with a sublime experience of absolute moral indifference, or are we dealing with a radical moralization of the indifferent?   Or, at the limit, are those two things the same?   The text does not say. But it does say, in yet the next paragraph, that “the only certainty is overwhelming ambiguity” (78). The ambiguity, however, that presumed certainty, does not let us off the hook. The question remains.  The certainty only covers it up.





Philosophy of Praxis.


In the middle of his important (but by now slightly dated) essay “Dasein as Praxis: the Heideggerian Assimilation and the Radicalization of the Practical Philosophy of Aristotle,” Franco Volpi says:

“Aristotle considers human life in totality as a praxis and not as a poiesis; and praxis is considered as the specific kinesis of human life, which is not simply oriented toward the conservation of life itself, towards living pure and simple (zen), but which is bios, the project of life which, once vital conservation is assured, comes to terms with itself in the space which opens up before it in relation to the problem of how to live, that it, to the choice of the preferable form of life by man, to the problem of living well (eu zen) and to the means suited to realizing this goal. This means that man, qua political animal endowed with logos, carries the weight of the responsibility of deliberating (bouleusis), of choosing and of deciding (prohairesis) about the modalities and the forms of his life by turning toward that which he takes to be the best. As we know, it is the wise man, the prudent man (phronimos), who succeeds in deliberating well, in choosing and deciding well and who realizes right action (eu prattein), the good life (eu zen), and therefore happiness (eudaimonia).” (Volpi, “Dasein as Praxis,” Michael Macann ed. Critical Heidegger, London: Routledge, 1996, 47).

This is an important paragraph to the extent that it prefaces many discussions in the last twenty or thirty years of reflection: think of biopolitics, think of “living well” in the late Derridean or even the decolonial sense, think of Giorgio Agamben’s work.  We can agree with Volpi that Heidegger, in the ten years of so prior to Being and Time (1927), picks up many of the Aristotelian determinations for practical life, while reformulating, radicalizing, and ontologizing them.   And it is arguable that Heidegger never gave up on this, and that even his latest musings and reflections are still entirely contained within a practice of thought as the explicit interpretation of practical life, against every productionism (that is, against every form of poietic thought), and against every theoreticism (and the extent to which this is so remains paradoxically unexplored in Heideggerian criticism.)   What emerges as a question—and the question concerns our interpretation of Aristotle’s relevance even more than that of Heidegger’s for contemporary life—is whether Volpi is right in attributing to Aristotle, and by extension to Heidegger, the notion that practical life is fundamentally decided through its “political condition.”  With the exception of any number of things he said or did during the admittedly many pro-Nazi or pro-Hypernazi years, it can be said that Heidegger stepped back from the fundamentally political determination of existence towards what we have been calling infrapolitics. But is that the move identified by Volpi in reference to Aristotle’s definition of “man” as “political animal”?   As a “political animal” you can presumably choose to step back from politics in the same way that as a passionate fellow you can choose to calm yourself down, but what does that mean? Is phronesis a condition that is necessarily implemented within the political world, or is phronesis a condition that helps you determine your interests both within and without politics? Is the phronimos a political animal that has politically succeeded in living well as the culmination of political life, or is the phronimos a practical animal that can eudaimonically choose its field of engagement transpolitically or parapolitically? What is ontologically prior, politics or practical life? If you reread the quotation above, you may see that the answer is not at all clear in Volpi’s words.

Mario Tronti said at a recent meeting in Rome that Antonio Gramsci’s philosophy is a “philosophy of praxis,” connecting it all of course to the famous Marxian thesis on Feuerbach about transforming the world. So, one first question ought to be whether the “philosophy of praxis” as transformation of the world in the Marxist tradition needs forcefully to be “hegemonic praxis” (“hegemonic” or “counterhegemonic” makes no difference here). I think both the Marxist and the post-Marxist traditions actually prove that to be the case. “Transforming the world” ends up being picked up as simply putting the world upside down in hegemonic terms—that is, as a merely ontic transfer of power. The second question is whether the Marxian tradition would allow for any consideration of an alternative form of praxis, namely, posthegemonic praxis. Posthegemonic praxis is already the claim that, even within politics, “transforming the world” does not and cannot simply mean altering its hegemonic constitution. A radical philosophy of praxis is posthegemonic to the very extent it is infrapolitical–that is, to the very extent that it cares about the very conditions of political relation, without presupposing them as always already given, always already enacted. The infrapolitical step-back is the claim that questioning the presupposition of political saturation is already the proof that there is and can be no political saturation (that is, that merely ontic transfers of power are not and could never be the ultimate horizon of human praxis). An infrapolitical philosophy of praxis aims to “transform the world” of the (bogus) world-transformation only ever theoretically invoked by hegemonic thought in its counterhegemonic versions.

The thought of infrapolitical praxis takes its departure from something other than the notion of the radical politicality of the human being, without denying it. Yes, the human being can be or is a “political animal,” also a “productive animal,” also a “theoretical animal,” also an animal pure and simple. But those four determinations do not exhaust the field. There is a fifth determination (within a series that may remain open: there could be n determinations), which is the infrapolitical one. The contention is simply that there is a practical priority for the infrapoltical determination, not because without it the other four are only elements in an undetermined series; rather because infrapolitics is the name for what has remained unthought in any philosophy of praxis, as the very ambiguity of Volpi’s quotation helps confirm.

Piel de lobo.


Concebir un libro como ficción teórica es pensar a la vez algo que no puede darse por descontado: no solo que la ficción teórica es la verdad del libro sino que la verdad del libro es su ficción teórica.  Esto último complica las cosas.

Más si uno reconoce que el libro mismo se escribe como si fuera el producto narrativo de cuatro o cinco narradores diversos–es decir, de haber ingerido píldoras de esos narradores que producirían formalmente el resultado X que sería la ficción teórica del libro (muy al margen de su “contenido,” quizá solo concebible en estado de desobra).

Serían, por ejemplo, el narrador de Memorias del subsuelo, de Fiodor Dostoyevski, el de Un héroe de nuestro tiempo, de Nikolai Lermontov, el de Contra Sainte-Beuve, de Marcel Proust, el de Memorias de un hombre de acción, de Pío Baroja.

Concebir la intersección de esas cuatro estrategias narrativas es quizá todo lo que el libro podría ofrecer, y ya no habría que escribirlo.