The Hamburger Court

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

What in the world are historians going to call this Supreme Court? Chief Justice Roberts has been so all over the map, ideologically, that it would be hard to call it the “Roberts Court.” They could try the “Thomas Court,” after the towering conservative who is its longest-serving justice. Or maybe the “Post-Ginsburg Court” after its famous liberal dissenter, who died last year. Or the “Breyer Court,” after its centrist liberal.

Why not, though, the “Hamburger Court”? This would be after the visionary law professor Philip Hamburger of Columbia University. He, so far as we’re aware, has never sat on any bench. Yet, in the closing weeks of this Supreme Court term, he is coming into view as potentially having a historic impact on American law. He is pressing his cause to rein in the runaway administrative state via not only his scholarly work but his founding, in 2017, of a new civil rights organization.

It is called the New Civil Liberties Alliance. It is a non-profit, non-partisan organization that states its cause as fighting to “protect constitutional freedoms from violations by the Administrative State.” Its litigation and pro bono advocacy seek, it says, to “tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.”

The reason we mention this is the startling record NCLA is starting to rack up in the current court. In a press release today, the organization reports that it filed amicus briefs in six cases before the Nine this term. It helped win all six of them — a “perfect six,” as NCLA put it. And the list of cases it helped win sketches the breadth and importance of issues in which Mr. Hamburger has entered the fray.

In Americans For Prosperity Foundation v. Bonta, NCLA says, the Alliance filed three separate amicus briefs at various stages against a California law that would have forced not-for-profits to disclose their key donors. The Supreme Court stopped California colder than a mackerel, vindicating not only NCLA’s points but also the NAACP, which six decades ago won at the Supreme Court an early donor protection case against Alabama.

In U.S. v. Arthrex, NCLA helped win a decision suggesting that something like 200 Administrative Patent Judges were improperly appointed and subjecting them to more supervision by the executive branch. In Carr v. Saul, NCLA helped six persons win the right to have their appeals for disabilities benefits heard by a properly benched federal judge rather than an administrative law judge.

In Collins v. Yellen, NCLA helped restore the President’s power to fire — meaning make accountable — the head of the Federal Housing Financial Agency. In AMG Capital Management v. FTC it helped hold the Federal Trade Commission to due process. In Fulton v. City of Philadelphia, Justice Alito cited Mr. Hamburger’s work eight times in his concurrence in protecting the religious free exercise rights of a Catholic foster care agency.

We understand that a lot of credit can be spread around for the advances in the long slog away from the doctrine of “Chevron deference,” which has held sway in our courts for decades and requires that great deference is owed to our administrative agencies, however unaccountable they might be. Yet that only underlines the size of the problem and the valor of Mr. Hamburger and his colleagues in taking it on.

“Most Americans do not realize,” the New Civil Liberties Alliance notes on its Web site, “that Congress today enacts fewer than one hundred statutes per year, handing over the task of legislating to federal administrative agencies.” It reckons that the Administrative State “now creates, enforces and adjudicates hundreds of thousands of regulations governing daily activities in our lives.” It’s nice to see that the long march back to the Constitution has begun.

The New York Sun

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