““In sum, part I has shown that administrative law revives prerogative legislation, together with the prerogative of suspending and dispensing with law—thus restoring an extralegal regime of making and unmaking law. And lest it be thought that this is improbable, it should be recalled that some leading advocates of administrative law candidly admitted that their project was to return to prerogative power. John Dickinson, for example, observed that “the question of whether or not the king can issue ordinances parallels our modern question as to whether or not an executive body or officer can establish regulations; and the arguments used pro and con have followed much the same lines.”25 Put more theoretically, administrative lawmaking is not a power exercised through law, but a power outside it. Indeed, as will become more fully apparent in part III, it is a power above the law. But even when considered simply as a power outside the law, this extralegal regime revives what once was considered absolute power. Administrative law thus returns to the very sort of power that constitutions developed in order to prohibit. The prerogative to issue law-like commands was the primary point of contention in the English constitutional struggles of the seventeenth century. In response, the English developed a constitution and Americans enacted a constitution that placed all legislative power in the legislature. It therefore is mistaken to assume that American administrative law is a novel mode of governance, which could not have been anticipated or barred by the U.S. Constitution. On the contrary, administrative power revives extralegal rulemaking, interpretation, dispensing, and suspending, and thus almost the entire regime of extralegal lawmaking once associated with absolute prerogative power. It thereby restores what constitutions barred when they located legislative power in their legislatures.””
