Philip Hamburger is a professor of law at Columbia Law School, where Bob Zadek says he has taught for about fifteen years, and the founder and president of the New Civil Liberties Alliance. Zadek describes him as the founder of the Law School Center for Law and Liberty, an organization studying threats to and legal protections of freedom, and as the author of a book questioning whether the administrative state is unconstitutional, as well as Purchasing Submission: Conditions, Power, and Freedom The New Civil Liberties Movement (2021). Hamburger appeared on The Bob Zadek Show on multiple occasions; Zadek directed listeners to a September 4, 2014 show and a January 3, 2016 show on the regulatory state A Lame Duck’s Last Stand (2017).
Court packing and judicial independence
Introducing Hamburger in June 2021, Zadek framed court packing as a profound and perhaps irreversible threat to the American system of government, noting that the country has operated under the longest-running written constitution in the world Philip Hamburger on Court Packing (2021). Hamburger defined court packing as Congress creating new judicial positions so that a president the legislature favors can make appointments, shifting the court politically. In his account, the point of independent judges is that decisions about who has violated the law are non-political; packing substitutes the will of Congress and the president for the judgment of judges.
Hamburger placed the nine-justice Court in historical perspective. The Court began with six justices because there were three circuits—Northern, Southern, and Middle states—and two justices were needed to ride circuit in each; the number was increased to nine in the middle of the nineteenth century as the number of circuits grew with the country. He identified the closest thing to successful court packing as the increase in the Court’s size around the Civil War, under Lincoln and afterward, driven by fear that Southern sympathizers might dominate the court. He called that an extreme example, a response to a civil war when the loyalties of the court were uncertain, and contrasted it with what he described as an attempt to pack the court in response to mere politics.
Hamburger credited Teddy Roosevelt with introducing court packing as a political element in the twentieth and twenty-first centuries. Until 1912, he said, the only court packing had been in response to a Civil War; Roosevelt, in defense of administrative power, threatened the courts and judges, said he would reconfigure the courts and deprive judicial decisions of their binding effect, and made this a campaign promise. Hamburger argued that since 1912 the progressive party, under that name or under Roosevelt, or other Democratic Party since then, has always had court packing in the back of its mind—not because most of them wanted it, but to intimidate judges, which he said has worked.
Zadek offered a baseball analogy: Major League Baseball jiggles its rules to favor batters, then pitchers, adjusting outcomes by changing the rules. He asked whether the country wants to rejiggle the Constitution to achieve a political outcome. Hamburger agreed, saying that through intimidation the court has legitimized administrative power taking away most procedural rights like juries and the right to govern ourselves through Congress. He added that progressives who sought the administrative state now want still more power on the Supreme Court, whereas conservatives are not seeking a reconfiguration of the judiciary to get their way but arguing through logic for defense of rights.
The New Civil Liberties Alliance
Hamburger founded the New Civil Liberties Alliance, which he described as an alternative to the ACLU—doing what the ACLU should have been doing but has not. He said the organization defends procedural rights like jury rights and due process, speech rights, and the right to govern ourselves through legislation rather than administrative rules, through litigation, with a team of about twenty in Washington, D.C. He reported that NCLA had gotten the Supreme Court to reconsider its non-delegation doctrine and its deference doctrines, and described the goal as taking big chunks out of the administrative state and its unlawful power Philip Hamburger on Court Packing (2021).
In October 2021 Hamburger said he founded NCLA about four years earlier because he was dissatisfied with the way conservative and libertarian organizations were litigating to protect freedom and thought it could be done better. He described the organization’s founding theory: administrative power is the greatest threat to civil liberties in our era, so it is necessary to focus on that and push back The New Civil Liberties Movement (2021).
As an example of NCLA’s strategic litigation, Hamburger described action against the Securities and Exchange Commission over insider trading. He said the SEC proceeds not just by act of Congress but with its own invented rules that are not law, prosecuting people in its own non-courts run by so-called administrative law judges who are not really judges, who do not give you a jury or due process, and are quite biased. He said NCLA’s litigation had been successful enough that the SEC had largely given up bringing cases before its administrative law judges and was being forced into district court. He then described Spartan Securities v. SEC, in which the judge instructed the jury that guidance is not binding as law, and the jury acquitted the client on 13 of 14 charges, the fourteenth being small potatoes. Hamburger presented this as part of a larger strategy to take down administrative tribunals he called utterly unconstitutional.
Sub-regulatory guidance
On a January 2017 episode, Zadek raised sub-regulatory guidance with guest Sam Batkins, recalling a “Dear Colleague” letter sent by the Department of Education to colleges and universities that drew attention to an alleged rape culture and to prosecution and punishment of sexual offenses without due process. Batkins said sub-regulatory guidance has been called “regulatory dark matter” by Wayne Crews, who studies regulation, and described its forms: a tweet, a “Dear Colleague” letter, an angry letter to a for-profit university warning that funding might be cut. Such guidance, he said, does not go through the same procedures, does not go through the White House for interagency review, and gives the public no opportunity to comment. He cited enforcement of the Affordable Care Act, where officials delayed the employer mandate through a memo posted online at 11:00 before the July 4th holiday without public comment or following the Administrative Procedure Act A Lame Duck’s Last Stand (2017).
Zadek observed that a person in a regulated activity who receives a letter or tweet from a regulator tends to perk up, because the regulator has a finger on your jugular vein, so such letters almost have the force of law and are taken seriously despite there being no control over them.
Across episodes
Hamburger’s appearances across the 2021 episodes show a consistent argument rather than a development: in June 2021 he described court packing as intimidation that had already produced bad results even without packing, and in October 2021 he described the same administrative power as the era’s greatest threat to civil liberties, with litigation as the response. The January 2017 episode touches the regulatory state only in Zadek’s closing reference to earlier Hamburger shows, and Batkins, not Hamburger, supplies its account of sub-regulatory guidance.
What the sources do not cover
The excerpts do not state Hamburger’s date or place of birth, his education, or when he joined Columbia Law School beyond Zadek’s estimate of about fifteen years. They do not give the outcome or holding of any case other than Spartan Securities v. SEC, nor do they identify the constitutional amendment or provision on which NCLA’s challenges rest. The excerpts also do not describe the contents of Purchasing Submission beyond its treatment of conditions and coercion, and the October 2021 discussion of conditions breaks off before Hamburger develops it.
Episodes
2 appearances, 2021–2021.
- Philip Hamburger on Court Packing (2021) — The Existential Threat of Court Packing. Columbia Law Professor
- The New Civil Liberties Movement (2021) — Government coercion and the surrender of constitutional rights. Columbia Law School Professor