Early Prerogative and Administrative Power: A Response to Paul Craig

This Article is organized around Craig’s three criticisms. (I) In challenging my thesis that federal administrative power revives a version of prerogative power, he argues that these types of power are crucially different because the prerogative was independent of statute. But his statute-free vision of prerogative power is grossly incorrect, and it therefore cannot distinguish prerogative and administrative power. His argument also is unresponsive.

My thesis is that administrative power revives the extralegal character of the absolute prerogative – in other words, that both sorts of power have bound subjects through extralegal edicts – and this extralegal power remains a problem regardless of statutory authorization and limits.