ZadekpediaPhilip Hamburger is a law professor at Columbia Law School and the founder and president of the New Civil Liberties Alliance. He appeared as a guest on The Bob Zadek Show to discuss court packing, the administrative state, and the use of conditions to obtain waivers of constitutional rights.
On the show
3 appearances, 2014–2021.
- 2014-09-04 · The New Royal Prerogative: Philip Hamburger on Administrative Law — Recording missing.
- 2021-06-21 · Philip Hamburger on Court Packing · 52:28 — The Existential Threat of Court Packing.
- 2021-10-18 · The New Civil Liberties Movement · 52:29 — Government coercion and the surrender of constitutional rights.
Their books discussed on the show
- Purchasing Submission (2021) — discussed 2021
Court packing and judicial independence
Hamburger defined court packing as Congress creating new judicial positions so that a president can make appointments and thereby shift a court politically. The point of independent judges, he said, is non-political decisions about who has violated the law; packing substitutes the will of Congress and the president for the judgment of the judges Philip Hamburger on Court Packing (2021).
He placed the number nine in historical perspective: the Court began with six because there were three circuits—Northern, Southern, and Middle states—each needing two justices, and the number rose over the 19th century as the country expanded. The closest thing to successful court packing came around the Civil War, when Congress increased the size of the court under Lincoln and afterwards for fear that Southern sympathizers might dominate it. Hamburger called that the only clear successful example in American history and noted it came in response to a civil war, when the loyalties of the court were uncertain Philip Hamburger on Court Packing (2021).
Teddy Roosevelt introduced court packing as a political element in the 20th and 21st centuries, Hamburger argued. Roosevelt, in defense of administrative power, threatened the courts, said he would reconfigure them and deprive judicial decisions of binding effect, and made this a campaign promise. Hamburger said 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 wanted it, but because they want to intimidate the judges, and that intimidation has worked Philip Hamburger on Court Packing (2021).
The New Civil Liberties Alliance
Hamburger founded the New Civil Liberties Alliance about three or four years before the 2021 interviews, dissatisfied with how conservative and libertarian organizations were litigating to protect freedom. He described it as somewhat like the ACLU, only actually trying to defend civil liberties, with about 20 people in Washington, D.C. The theory on which it was founded is that administrative power is the greatest threat to civil liberties in our era The New Civil Liberties Movement (2021).
He gave the Securities and Exchange Commission as an example of NCLA’s strategic litigation. The SEC goes after insider trading, which Hamburger said should be regulated, but does so with its own invented rules rather than an act of Congress and prosecutes people in its own non-courts run by so-called administrative law judges who are not really judges, give no jury and no due process, and are quite biased. NCLA litigated against these tribunals, and Hamburger said the SEC has now largely given up bringing cases before the ALJs, forcing them into district court The New Civil Liberties Movement (2021).
In Spartan Securities v. SEC, Hamburger said, the judge instructed the jury that guidance is not binding as law, and the jury acquitted the client on 13 out of 14 charges. He described this as part of a larger strategy to take down administrative tribunals he called utterly unconstitutional, and said NCLA had gotten the Supreme Court to reconsider its non-delegation doctrine and its deference doctrines The New Civil Liberties Movement (2021) Philip Hamburger on Court Packing (2021).
Purchasing submission
Hamburger’s book Purchasing Submission: Conditions, Power, and Freedom examines the use of the administrative state to coerce individuals, entities and other branches of government into surrendering otherwise constitutionally protected rights. Bob Zadek framed the book’s subject as a federal government that purchases the surrender of constitutional rights, calling even that verb charitable The New Civil Liberties Movement (2021).
Hamburger connected this to court packing through the administrative state’s effect on procedural rights. Through intimidation, he said, the court has legitimized administrative power taking away most procedural rights like juries, and the right to govern ourselves through Congress. He contrasted progressives who sought the administrative state and now want more power on the Supreme Court with conservatives who, in his account, are not seeking reconfiguration of the judiciary to get their way but arguing through logic for defense of rights Philip Hamburger on Court Packing (2021).
Across episodes: the administrative state
The two 2021 episodes treat the same question—how to push back against administrative power—with the June interview arguing that court packing intimidates the judiciary into deference toward the administrative state, and the October interview turning to conditions and waivers as another mechanism of that power. Hamburger advanced both arguments, and the later episode adds the Spartan Securities v. SEC litigation as concrete evidence of the strategy. The 2017 episode does not feature Hamburger; Bob Zadek cites his September 4, 2014 show with Hamburger as a prior discussion of the regulatory state A Lame Duck’s Last Stand (2017).