Due process Quote by Philip Hamburger

““The danger of an administrative return to an extralegal regime becomes particularly concrete when one recognizes the potential for evasion. Administrative law evades not only the law but also its institutions, processes, and rights. The central evasion is the end run around acts of Congress and the judgments of the courts by substituting executive edicts. This suggests that there can be an alternative system of law, which is not quite law, but that nonetheless can be enforced against the public. As if this were not enough, the evasion also gets around the Constitution’s institutions and processes. For example, when the executive makes regulations, it claims to escape the constitutional requirements for the election of lawmakers, for bicameralism, for deliberation, for publication of legislative journals, and for a veto. Similarly, when the executive adjudicates disputes, it claims to sidestep most of the requirements about judicial independence, due process, grand juries, petit juries, and judicial warrants and orders. The judicial evasion is particularly troubling when one realizes that it escapes almost all of the procedural rights guaranteed by the Constitution. Recognizing at least the due process problem, courts and commentators sometimes suggest that administrative adjudication is subject to a lesser, administrative version of due process. It remains unclear, however, how a fraction of a right can substitute for the whole, or how the due process of administrative power in an administrative tribunal can substitute for the due process of law in a court. This is like a substitution of water for whisky, and the fact that both are liquid does not hide the evasion.””

— Philip Hamburger