Administrative Law And Covid

Philip Hamburger is a major league expert on Administrative Law. I’ve referenced his views a number of times in the past and you can read his profile at Wikipedia—the “Publications” section includes several books that are available for sale online. The point about Administrative Law and Covid is that so much of the Covid Regime involves administrative agencies—CDC and FDA, above all—and that’s what Admin Law is all about:

Administrative law is the division of law that governs the activities of administrative agencies of government. Government agency action can include rule making, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law.

Administrative law deals with the decision-making of such administrative units of government as tribunals, boards or commissions that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport.

Administrative law expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the social, economic and political spheres of human interaction.

Of course executive declared States of Emergency also factor largely into the Covid Regime but the various executive mandates and orders end up largely being enforced by administrative agencies of government in one form or another.

So, today, when I was alerted at Powerline to an interview with Hamburger on the subject of vaccine mandates my interest was roused.

That 48 minute interview can be found here—with both a video and a pretty good transcript (despite misspelling Hamburger’s first name throughout). Another attorney—Jenin Younes, who handled the Todd Zywicki (whose name is also mangled in the transcript) anti-vax/natural immunity case at George Mason U.—also participates in the interview.

I’ve decided to paste in a significant portion of the transcript, not because you’ll learn anything about Covid itself but because it may prove educational with regard to the way the modern Administrative State acts, and the way the levers of power embodied in the Administrative State have been leveraged against normal people—most of whom have no clue about the nature of the Administrative State and its questionable constitutional basis. Heads up: Hamburger makes no secret that he considers the Administrative State to be a fundamental threat to our entire constitutional order, so if you’re in love with Admin Agencies you may not want to read further.

In what follows I’ve retained the format of the transcript. The transcript provides times for every paragraph. From that you’ll get a good idea of how much I’ve edited out. For the balance of the interview you’ll need to go to:

EPISODE 152: “THE ADMINISTRATIVE STATE VS OUR CIVIL LIBERTIES” WITH PHILIP HAMBURGER AND JENIN YOUNES

And now Hamburger and Younes:

EPISODE 152 TRANSCRIPT

Bill Walton (00:24):

Welcome to the Bill Walton Show, I’m Bill Walton. Last week, Joe Biden mandated that businesses with more than 100 employees needed to force every worker to be vaccinated or face weekly testing. It’s estimated this will impact roughly 180 million people or almost two thirds of the country’s workforce. ...

Bill Walton (01:10):

This points us towards even a bigger problem which is the enormous and growing administrative state and its threat to every American’s constitutional freedoms. With me to explain these threats, Philip Hamburger, who’s the founder of the New Civil Liberties Alliance, a scholar of constitutional law [at Columbia Law School] whose contributions are unrivaled by any US legal scholar in driving the national debate on the first amendment, government administrative power, and the separation of church and state.

Bill Walton (01:42):

Also joining me is ... Jenin Younes, .... She’s litigation counsel for the New Civil Liberties Alliance, ..., and after seeing governments throughout the nation violate human rights and civil liberties in her ostensible effort to mitigate the virus, she’s now joined the fight against lockdowns and related policies.

Bill Walton (03:30):

So. What was the light that went off that said, “Look, we’ve got to protect everybody’s civil liberties?”

Jenin Younes (03:36):

Well, it was really the COVID stuff. I was really shocked by the governmental responses across the nation. Well, really, across the world and the public’s acceptance of it, and I thought, “Something’s really wrong here, that people think it’s okay for the government to say you can’t leave your home, you can’t see your family, you can’t go to church.” And so I started to become very active in fighting lockdown policies ...

Bill Walton (04:45):

So let’s start with Biden. And then I really do want to get into the administrative state, first by defining it, and then understanding what we can do about it. So, Biden, people say he exercised his authority under OSHA. Is what he’s doing constitutional? Is what OSHA’s doing constitutional? I mean, what is it that he tells every American that you have to do this or that?

Philip Hamburger (05:11):

... First of all, at a statutory level, it’s by no means clear that there is governmental authority to dictate to employers with more than 100 employees that they have to have their employees vaccinated. In fact, the statutory authorization for this is rather dubious. It looks not just like regulating the workplace, but actually regulating individuals in their everyday lives, which is not what OSHA is about.

Philip Hamburger (05:40):

But beyond that, there are constitutional problems. This is an administrative edict that’s being proposed. One, it’s not a rule adopted by Congress elected by all of us, it’s just some unelected person at the dictate of the president telling us what to do. ...

Jenin Younes (06:07):

I’m currently filing a lawsuit against Michigan State University. There’s actually going to be a hearing next week in Michigan on that, on the preliminary injunction there. So that’s a vaccine mandate for employees and our plaintiff doesn’t want to get the vaccine, she had COVID, she has natural immunity, very similar to this [Zywicki] case. ...

Jenin Younes (06:34):

So the analysis could shift a little bit, but I think it’s an important point to make in addition to what Philip was saying that this is sort of the government using private businesses to do what it can’t, which we’ve seen a lot throughout this pandemic, and it’s really problematic. Biden knows he can’t make individuals go out and get the vaccine, but he’s using private companies as an instrument of the government. Yeah.

Philip Hamburger (07:00):

It’s really in some ways even more dangerous than ordinary administrative power. They’re using administrative edicts and also conditions on federal spending to draw private institutions into controlling us so that there’s a uniformity, a connectedness, an alignment of government and large corporations and the universities all imposing the same policy. And in that sense, government and society get melded along government lines. So this is profoundly worrisome.

Philip Hamburger (08:54):

One of the dangers is that throughout history, emergencies are used to justify extraordinary power, unlawful power. This was the nature of absolutism, it was based on the sense of continuing emergencies, and this is the current ploy, right? We have to preserve this emergency so we can control people. That’s quite frightening, and it just seems to me it leads to a distortion of science too, because in order to maintain the sense of necessity that justifies imposing all these controls through unlawful mechanisms, you have to concoct the story of an emergency.

Jenin Younes (14:15):

... the tactic that all of these universities appear to be taking is to say that natural immunity doesn’t exist because the national immunity argument is huge, it affects millions. Tens of millions of Americans would be exempt from these mandates if natural immunity was recognized, but they’re sort of trying to pretend it doesn’t exist at all.

Philip Hamburger (14:38):

Which is kind of funny because of course the whole idea of herd immunity is based on past experiences with natural immunity.

Philip Hamburger (14:46):

There’s a funny disconnect here. So the administrative state, all this power exerted, not through one’s representatives, but by unelected agencies, bureaucrats, is based on a theory of expertise. They have knowledge.

Philip Hamburger (14:58):

Their knowledge is solid, we should respect that and follow it in the courts too even if it’s at the expensive our rights. Now, this is odd because solid knowledge things, which are certain, that means old science, real science, the cutting edge of science is all about questions, uncertainty, and I got into all of this really in defense of science against federal regulations that are actually killing people.

Philip Hamburger (15:24):

And so I spent a lot of time worrying about this. Their claim of expertise is actually repudiation of cutting edge science, and here it’s actually anti-scientific because of course, natural immunity is a real thing. We may not know enough about it, but we don’t know enough about the immunity from vaccines either, and it’s a reminder that the agencies actually don’t know enough to be presuming to rise above law and no more than the legislature.

Bill Walton (15:58):

Okay, well power based on expertise, this was the Woodrow Wilson idea. You got it from the Germans.

Bill Walton (16:09):

… he thought that the constitution was wholly inadequate, then this idea of separation of power and a congresses, courts, the president, they lack the capacity, the capability of experts. ...

Bill Walton (16:33):

... All the progressives thought the experts ought to be in charge of government, that the democratic process was inadequate to solve the big issues and so the rule by experts really got started in the ’20s. And then through the years, they kept delegating more and more power to these government agencies ... and ... we ended up with this incredible bureaucracy ...

Philip Hamburger (17:17):

... So the people who demanded rule by experts, people like Woodrow Wilson, they were not just academics, they were members of a class. ...

Bill Walton (17:40):

The elites.

Jenin Younes (19:15):

What we’re seeing with this, I think, is profoundly anti-scientific. It’s a lot that we don’t even know how these policies are developed, the universities usually won’t tell us, and they’ll just refer to some CDC guidance which doesn’t even appear to be often based on research. And I was speaking to Jay Bhattacharya recently, one of the great Barrington declaration coauthors.

Bill Walton (19:37):

He’s at Stanford.

Jenin Younes (19:38):

And one of the best epidemiologists in the world, and he was saying, “There are a lot of things we don’t know about these vaccines. They’re new, we don’t know how effective they are, safety, they appear to be safe, but it’s just a syllogism that you can’t know the long-term effects of something that hasn’t been around longterm, and we don’t know how long they last,” and there should be a robust debate going on about it.

Jenin Younes (20:01):

But instead what’s happening is silencing and censorship as we know firsthand. And this is exactly the opposite of what the scientific process is supposed to be about. So these people who say that following the science, Anthony Fauci, et cetera, are doing exactly the opposite

Philip Hamburger (20:17):

Mob rule since [inaudible 00:20:19] is even undue acceptance of a majority’s views incompatible with scientific knowledge ... and the danger is we’re moving towards a situation in which if someone holds a deviant point of view on science, somehow they are a threat to the nation. And part of this comes, I think, because ... science has become so much a government activity that policy and science merge. ...

Bill Walton (22:23):

So explain how the administrative state administers its law and how it’s always inside the agency that’s…

Philip Hamburger (22:32):

Right. So normally Congress passes a statute saying, “Don’t do this or do that.” Nowadays, Congress [tells] some agency ... “You take care of it,” and then the [agency] will adopt a rule which says, “Don’t do this or that,” and they’re not elected and utterly unaccountable to the public. ...

Philip Hamburger (23:07):

Of course it’s not binding, but ... the courts will defer to the interpretations of agency. So there are layers of administrative edicts, rules, interpretive rules, guidance, and then sometimes just a wink and a nod from an agency and you have to listen to what they say.

Philip Hamburger (23:25):

And if you violate any of these things, then they’ll charge you in their own in-house courts, not real courts, but as part of an ALJ, an administrative law judge, who’s utterly biased in favor of the agency, because even if they were utterly pure as individuals, and many of them are, their traditional decisions are reviewable by the [agency's] commission, ... or other agency head. So if the agency doesn’t like the adjudication by the little petty judge, the inquisitorial judge, they will just change it. So both on the lawmaking and adjudication, you’re toast.

Bill Walton (28:58):

So you vote for something and then somebody comes back and one of their constituents says, “The law you just voted for is really crushing me,” and you say, “Oh, well, that’s not the law I passed, it’s the way it’s been interpreted by this agency.” Is that a roughly accurate view of what’s going on?

Philip Hamburger (29:13):

Yes, ...

Jenin Younes (29:27):

The guidance issue also has come into play in the vaccine mandate cases because a lot of these mandates say that they’re relying on the CDC guidance and so you can’t really challenge the guidance because it’s not a law, but then the university acts as though it’s the final word. So they put us in this bind where we can’t really bring a lawsuit against the CDC and say they’re not relying on the science even though I think that’s actually the case. But at the same time, everybody thinks that we should be taking their word for what they’re saying so that’s really a problem.

Philip Hamburger (32:01):

So we’re persuading the Supreme court increasingly, especially Gorsuch and Clarence Thomas and I think Alito to reconsider their doctrines. The same is true with deference doctrines. Deference is a doctrine of judicial deference to agency interpretations of their laws.

Bill Walton (33:38):

So is this something the current Supreme court would likely overturn or is this a Roberts court that doesn’t want to do anything controversial?

Philip Hamburger (33:49):

... Yes, the Supreme Court should decide this, but if they don’t, we’ll find another way.

Philip Hamburger (34:31):

Lots of individuals, as well as companies. The great defense amongst liberals of the administrative state was it only really affects corporations, don’t worry, they’re people. And the reality though, is that in that past 20 years, administrative law actually increasingly touches individuals and this is COVID, right? COVID seizes people, individuals, and tears their lives apart. Then the administrative state does this to you. ...

Bill Walton (35:04):

... now I’m going to ask the big question which is how long is this COVID thing going to last? How long are we going to be locked down?

Jenin Younes (35:20):

Forever.

Philip Hamburger (35:20):

As long as possible.

Bill Walton (35:21):

What can we do about it? … it seems like we had COVID then we had the Delta and then we had there’s bound to be something new coming along, some new reason to keep us locked down, how do we knuckle this back?

Jenin Younes (36:23):

The governments are implementing these measures in response to something that’s not really a problem. ...

Philip Hamburger (36:40):

Right. And I was telling you the thing about the current executive orders and the like is that they’re utterly undifferentiated. They’re trying to lump as many people as possible into one group, and that’s a sign that this has nothing to do with science and more to do with politics. And if it’s not this emergency it will be another. What we really need is to have judges realize they shouldn’t should not respond to excited claims of emergency or necessity. We have a whole series of doctrines, such as the compelling government interest test.

Philip Hamburger (37:12):

We have a right, but it will trumped at this compelling government interest test and of course an emergency is always compelling, right? So we have doctrines that invite this sort of behavior, so the real fault lies in the courts. Once they abandon their doctrines that encourage these sort of misstatements about emergency, we will all calm down.

Jenin Younes (37:32):

And they’re not requiring any showing of what an emergency is, all these governors and mayors, they’re just saying it’s an emergency. I mean, the Delta variant existing is not necessarily an emergency if it’s only causing flu or cold like results.

Philip Hamburger (44:09):

Right. So the president constitutionally should be able to hire and fire all these people. He has to take care of duty, the duty to care of the loss of faith being enforced. He has to be able to fire these people and he can’t, and this makes the bureaucracy and interests separate from the elected part of the government, which we saw under the Trump administration.

Philip Hamburger (44:31):

You may like or dislike Trump, that’s not really the point, it’s just that we have an unresponsive representative system of government and it’s threatened by the unelected portion. So the tenure is profoundly dangerous, and in many instances, I think unconstitutional.

Bill Walton (45:35):

Well, somebody was saying that a lot of the people implementing the CDC or the local state lock down laws are sort of the people who were hall monitors in high school. They weren’t the movers and shakers.

Philip Hamburger (45:53):

Right. It’s puritanism without the morals.

Bill Walton (47:34):

Let’s end this with an interesting tweet that fits right in—stuff being done under the cover of the Covid Regime:

Emerald Robinson ✝️ @EmeraldRobinson

Our corrupt ruling class actually WANT global supply chain disruptions. Why? It provides the justification for imposing government control over large sectors of the economy when the shortages begin. It’s the Great Reset.