Phillip Hamburger, law professor at Columbia Law School, gave a moving speech at Hillsdale College about the Constitution, also published in Imprimis this year. It laid out more clearly than I’d seen it before, exactly how the U.S. has strayed from our Constitution, and how it’s endangering us. His speech was titled, “The History and Danger of Administrative Law”.
Professor Hamburger made no allusion to education reforms, yet he wonderfully, as a bonus, happened to explain the foundational problem of the Common Core Initiative: that the governance system of Common Core is unrepresentative, unconstitutional and dangerous. Here’s how.
Hamburger explained that administrative law revives something that the Constitution barred: prerogative, or absolute power. He wrote: “Administrative law is commonly defended as a new sort of power, a product of the 19th and the 20th centuries that developed to deal with the problems of modern society in all its complexity… What I will suggest, in contrast, is that administrative power is actually very old.”
Old is right. Throughout history, countless generations suffered because others have wielded power over their lives. The whole purpose of the suffering and sacrifices of American pilgrims and pioneers was to escape unbalanced, top-down, often cruel, power. The success and freedom of the USA stemmed from the Constitution’s restraining of human power over other humans, and its strict limitation of its own government, and its checking and spreading of power, in order to avoid the cycle of oppression that the founders fled. The Constitution gives no lawmaking power to anyone but Congress.
Hamburger said, “Put simply, administrative acts are binding or constraining edicts that come, not through law, but through other
mechanisms or pathways…In a way we can think of administrative law as a form of off-road driving… For those in the driver’s seat, this can be quite exhilarating. For the rest of us, it’s a little unnerving.”
Reading this, I thought about Secretary of Education Arne Duncan, who drove off-road when he made regulations and policy changes to what Congress had long ago created in the privacy-protecting federal FERPA laws, so that he could meet his education data mining goals, which included (as outlined in his cooperative agreements* with state testing consortia) the sharing of “student-level data” –subject to law. Duncan had to alter that law. He shredded the previously protective FERPA when he made those regulatory changes. The Electronic Privacy Information Center sued him for it. But Duncan got away with it. Case dismissed.
I also thought of Duncan’s waving of money in front of cash-strapped states, tempting/coercing states into adopting Common standards and assessments and database systems in exchange for money. Off-road again. No basis in Constitutionality, just in cash.
I also thought about the little unauthorized onto-the-road drive taken by a little private club with a misleading name, the National Governors’ Association (NGA) which acts as if it were a legitimate voice for the people, as if it were Congress. NGA created, promoted and copyrighted these national standards, (the Common Core) as well as partnering with CCSSO in making national data collection standards (CEDS). The CCSSO and NGA hold no representational authority over education. It’s a giant bluff, and would almost be laughable, but it’s not funny, because it damages America.
I also thought about the blurring of lines of authority and power that happen with the creation of public-private-partnerships. When NGA and its sister-club, the superintendents’ club, CCSSO, partnered with the federal government and with Bill Gates to create education policy, Common Core bypassed Congress in two ways: by federal overreach plus corporate overreach –into what ought to be the states’ voters’ decision making arena.
Here’s a screenshot, evidence that the federal government has partnered with the private club that copyrighted Common Core and created Common Data Standards:
Remember our Constitution. It says that ALL legislative powers shall be vested in a Congress. Congress is supposed to make the laws. The Department of Education isn’t Congress. Neither is the National Governors’ Association, and neither is Bill Gates. Their assumption of unauthorized power over education policy, rather than having voters, via their Congressional representatives, to determine how education goes, is a clear corruption.
So what about corruption? Who cares?
Here’s why we must care. Hamburger writes that administrative law is “essentially a reemergence of the absolute power practiced by pre-modern kings. Rather than a modern necessity, it is a latterday version of a recurring threat—a threat inherent in human nature and in the temptations of power.”
He reminds us: “Early Americans were very familiar with absolute power. They feared this extra-legal, supra-legal, and consolidated
power because they knew from English history that such power could
evade the law and override all legal rights… Americans established the Constitution to be the source of all government power and to bar any absolute power. Nonetheless, absolute power has come back to life.”
He goes on: “ over the past 120 years, Americans have reestablished the very sort of power that the Constitution most centrally forbade. Administrative law… binds Americans not through law but through other mechanisms—not through statutes but through regulations—and not through the decisions of courts but through other adjudications. It… requires judges to put aside their independent
judgment and defer to administrative power as if it were above the
law—which our judges do far more systematically than even the worst
of 17th century English judges. And it is consolidated in that it combines the three powers of government—legislative, executive, and judicial—in administrative agencies.”
He concludes: “In sum, the conventional understanding of administrative law is utterly mistaken. It is wrong on the history and
oblivious to the danger. That danger is absolutism: extra-legal, supra-legal, and consolidated power. And the danger matters because administrative power revives this absolutism. The Constitution carefully barred this threat, but constitutional doctrine has
since legitimized this dangerous sort of power. It therefore is necessary to go back to basics… We should demand rule through law and rule under law. Even more fundamentally, we need to reclaim the vocabulary of law: Rather than speak of administrative law, we should speak of administrative power—indeed, of absolute power...”
Read the rest here.
Thank you so much, Professor Hamburger.
*Today, I noticed that the Cooperative Agreement between the Department of Education and Smarter Balanced Assessment Consortia link says “webpage not available.” But I had typed it into another post, not in full but at length, if you are interested, here.