Notes for Philip Hamburger Show

Notes for Philip Hamburger Show

General notes:

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Announce podcast subscribe at the middle of the show (everyone asks for 5-star reviews, but I think you should just ask for honest feedback)

Summary:

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The Administrative State and its lawmaking is just one avenue for circumventing the Constitution's designs of limited and separated powers. Increasingly, agencies within the administrative state use their authority to distribute privileges, funding and other goodies as a way to impose conditions on people's rights which would otherwise be unconstitutional.
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Examples: Institutional Review Boards on college campuses limit speech rights of researchers. Tax status for nonprofits limits speech rights of churches and other nonprofits. Highway funding comes with the requirement of a drinking age. Block grants to states require matching funds from those states as a condition of funding, conflicting with the federalist design. Welfare benefits conditioned on a social worker being able to enter your house in violation of the fourth amendment.
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Hamburger distinguishes between unconstitutional regulatory conditions, which override our existing rights, and other conditions, such as remaining drug free while on parole, which merely reiterate existing laws.

Bio

One of the preeminent scholars writing today on constitutional law and its history, Philip Hamburger teaches and writes on wide-ranging topics, including religious liberty, freedom of speech and the press, academic censorship, the regulation of science, judicial duty, administrative power, and the development of liberal thought. In two recent books—Is Administrative Law Unlawful? and The Administrative Threat—he argues that the administrative state is unconstitutional and a threat to civil liberties. In his latest book, Liberal Suppression: Section 501(c)(3) and the Taxation of Speech, he shows that the revenue code’s restrictions on the political speech of churches were initially proposed by the Imperial Wizard of the Ku Klux Klan and shows that these speech limitations are unconstitutional.

In 2014, Hamburger established the Law School’s Center for Law and Liberty, which studies threats to and legal protections for freedom. He is the founder and president of the New Civil Liberties Alliance, an independent, nonprofit civil rights organization based in Washington, D.C., that uses litigation and other pro-bono advocacy to defend constitutional freedoms from the administrative state.

A member of the Columbia Law faculty since 2006, Hamburger decided a few years ago that he needed to broaden his intellectual pursuits beyond traditional scholarship. In 2017, he founded the New Civil Liberties Alliance, a nonpartisan, nonprofit group based in Washington, D.C., whose mission is to use public interest litigation and other pro bono advocacy to protect constitutional rights from the administrative state. “I used to have a purist mentality, that one should just study, not get engaged at all, and I still lean that way,” says Hamburger, who is NCLA’s president. “But at a certain point, when jury rights and due process are systematically denied, one has to do something.”

Hamburger joined the Law School faculty in 2006 from the University of Chicago Law School. He has won several prestigious prizes during his tenure at Columbia Law, including the Hayek Book Prize for Is Administrative Law Unlawful? and the Bradley Prize, which honors persons who defend American values. He has been elected a member of the American Academy of Arts and Sciences.

Blurb

Southwest Airlines CEO Gary Kelly recently said on CNBC that he has always opposed vaccine mandates like the one recently announced by OSHA under President Biden's executive order, yet he has reluctantly chosen to enforce it as a matter of legal compliance. Even apart from the heavy fines threatened by the order, airlines like Southwest receive federal contracts from the government, which they might lose if they fail to follow the legally dubious order.

Philip Hamburger first joined my show in 2014, warning of the threat of the administrative state, which has only grown since he released his prescient book – Is Administrative Law Unlawful? Now, he has followed up with the sequel: Purchasing Submission: Conditions, Power, and Freedom, which examines a frequent tool used by the "fourth branch of government" to further circumvent the Constitution. Hamburger explains that by imposing conditions on the recipients of government largesse, the administrative state has cleverly been able to evade the usual constitutional considerations.

I was recently joined by Hamburger's colleague at the National Civil Liberties Alliance – Jenin Younes – who has been fighting against unconstitutional vaccine mandates. This Sunday, however, Hamburger joins me to step back from the specifics of any single instance of administrative overreach and see the bigger picture. Tune in live, this Sunday, to learn about the patterns and mechanics of how the government gets away with its new assaults on civil liberties by essentially purchasing our constitutional rights through various conditions on its special favors.

Articles/Reviews

Scott Johnson, October 10, 2021
September 21, 2021
Hamburger asserts that certain conditions on federal spending that restrict constitutional rights are, by turn, unconstitutional. He explores “the use of conditions as substitutes for regulation and the use of conditions to private governance.” He emphasizes that “most conditions are perfectly innocent, valuable, and lawful” but finds other conditions alarming such as plea bargain deals conditioned on the accused giving up the constitutional right to trial by jury and federal funding for universities dependent on the institutions’ enforcement of Title IX by policing themselves and holding private tribunals. “It’s a dangerous form of regulation, which privatizes governance and thereby threatens both elective governance and constitutional rights,” he says.

Dakota v. Dole- South Dakota challenged the Dept. of Transportation's ability to without highway funds if they didn't change the drinking age. Supreme Court sided with the DoT, 7 to 2.

Hamburger says the connection between highway funding and underage drinking violates the "germaneness" condition – and allows federal govern't to commandeer state functions.

Of particular concern is when administrative edicts force private companies or institutions such as universities into compliance, which leads to the creation of pseudo-courts, tribunals, and Star Chamber like lack of due process.

We are seeing this unfold with the vaccine requirement.

September 13, 2021 by Philip Hamburg
And the Environmental Protection Agency has revived its practice of reducing penalties for polluters who volunteer to adopt "Supplemental Environmental Projects"—environmental equivalents of community service. In the latter instance, the government offers not cash, but the privilege of relief from an otherwise-applicable penalty. Either way, federal money and other privileges allow the government to secure conditions imposing otherwise-unlawful regulation. … Also on the table have been plans for federal largesse to be conditioned on mask-wearing, taking vaccines and learning critical race theory.

Hamburger uses Privatization in a negative sense, when it comes to regulation:

Conditions also let government privatize its regulatory power. The government now can avoid regulating through public debate and congressional statutes. It can even sidestep regulating through publicly adopted agency rules. Instead, it can regulate by securing the consent of private parties in private transactions. Private deals displace public enactments.

Government can buy off opposition.

Private institutions are not restricted by the constitution, so they can be used as the front men for denying rights. This seems to be what we are seeing with COVID compliance.

David Wineberg, July 13, 2021

Excellent summary of the book.

Notes how IRBs create a chilling, disciplinary environment in which free speech is stifled.

For human research, such as psych studies by the thousands, the health department requires schools to install an IRB, an Institutional Review Board, charged with ensuring no one at the university breaks these free speech restrictions. It doesn’t apply to just the grant recipients, either. It applies to the whole institution. Anyone caught exercising those rights could cause the government to demand a return of all the money, even though it has already been spent. It could result in no more grants. It could result in massive reputational damage. So the school polices itself and everyone in it on behalf of the government, and it doesn’t cost the government a thing. Sweet deal.

HHS could shut down any school at any time for an alleged breach of IRB requirements.

Churhces as 501(c)3s cannot criticize the government or play politics.

Plea bargains for cronies, i.e., tobacco settlements give up some free speech in advertising in exchange for no lasting damages owed to individual victims.

Chapter 4 of the book contains a whole section on whether the spending power is abused whenever it is used for anything other than the general welfare.

Hamburger writes, "there is no general spending power."

Article I, Section 8, Clause 1:

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The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises,⭐️to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States; . .

Hamburger says this requirement merely confines the taxing power – it does not authorize a general spending power, although Gouverneur Morris tried to turn the starred comma into a semicolon, to expand the authority. The style committee caught him and reversed the change.

Despite this history, "the Supreme Court has turned a limit on the taxing power into a spending power."

The original Constitutional intent was not to allow federal government to distribute money to the states and was understood "in opposition to aid for the states and other localities."

Videos & Podcasts

September 21, 2021
Hosted by John J. Miller, September 13, 2021
July 28, 2021

LINKS:

Related Shows:

  • The Dubious Morality of the Modern Administrative State with Richard A. Epstein, March 12, 2020
  • John Marini on *Unmasking the Administrative State*, July 21, 2019
  • Small Business vs. the 4th Branch of Government with Luke Wake, February 19, 2017
  • A Lame Duck's Last Stand with Sam Batkins, January 8, 2017
  • Lawson Bader on *I, Whiskey* & Curtailing the Regulatory State, July 19, 2015
  • The New Royal Prerogative: Philip Hamburger on Administrative Law, September 4, 2014
  • Confused by all the talk around Halbig v. Burwell? Rumors abound that this case represents the next big legal challenge to Obamacare, but how do we know it's not just hype surrounding a technicality, as the law's supporters suggest? In Halbig, an IRS interpretation of Obamacare – dubious, but crucial to the law's implementation – was rejected by the courts as an unlawful use of administrative authority. The underlying concern is the ongoing revival of extralegal executive powers – akin to the "Royal Prerogative" of yore – under the banner of "Administrative Law." If the Halbig decision stands, it would represent at least a small win against the growth of executive power. But health care isn't the only area where increasingly absolute executive authority is eroding the checks and balances of our constitutional government. Columbia Law Professor Philip Hamburger will join the show to clear up the confusion, and to reveal the long historical struggle to constrain extralegal power as told in his fascinating new book, Is Administrative Law Unlawful?
July 2015

Bob hosts a very special guest and elder statesman in the truest sense of the term, Senator James Buckley. In addition to acting as U.S. Senator from New York (1971-1977), Buckley’s distinctions include serving as a Judge for the United States Court of Appeals for the District of Columbia Circuit, and as President of Radio Free Europe/Radio Liberty, which broadcasts news, information, and analysis to countries "where the free flow of information is either banned by government authorities or not fully developed.” His freedom-fighting efforts have spanned the better part of a century, and yet he is still producing some of the freshest ideas in the public policy arena. His latest book, “Saving Congress from Itself", was sent to every member of the U.S. Senate, and we had better hope that each and every one of them reads it. Learn how the Federal government usurps state and local legislative functions through provision of “goodies”, i.e., subsidies, or “grants-in-aid,” with onerous strings attached. The 10th Amendment is being trampled. Are you going to stand for it?

2014