Monthly Archives: March 2018

The Alternative Separation of Powers in Constitutional Coup

by Jennifer Mascott — Friday, Mar. 9, 2018@jennmascott

I am honored to have the chance to review Jon Michaels’s engaging, brilliantly written, and insightful work. Constitutional Coup is a very enjoyable read, chock-full of creative word pictures like Michaels’s description of the “torch and pitchfork crowd” out to get the “Nanny State.” As Jeff Pojanowski and others have observed, the book is thought-provoking […]

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Knock it off, Idaho. (But carry on, Idaho.)

by Nicholas Bagley — Friday, Mar. 9, 2018

Credit where credit is due: the Trump administration announced yesterday that it won’t look the other way if Idaho flouts the Affordable Care Act. The ACA “remains the law and we have a duty to enforce and uphold the law,” CMS administrator Seema Verma explained in a letter to Idaho’s governor and its insurance director. Maybe it’s a […]

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Deliberate and Serendipitous Separation of Powers in the Administrative State

by Emily Bremer — Friday, Mar. 9, 2018@emilysbremer

Jon Michaels’ new book is a masterful blend of important and fascinating subjects, including the constitutional character of administrative law, superstatute theory, privatization, and procedure. It’s a fun read, too, and a must for anyone interested in a fresh perspective on the perils of privatization! In this post, however, I’m going to focus on some discrete details of […]

The State(s) of Civil Society Oversight, by Miriam Seifter

by Guest Blogger — Thursday, Mar. 8, 2018

Jon Michaels’ imaginative, insightful book portrays the administrative state in a new and thought-provoking light. He argues that the modern arrangement of agency leaders, civil servants, and civil society—“the administrative separation of powers”—recreates the internally rivalrous, tripartite structure that he sees as central to the federal constitutional design. And he makes an impassioned call that […]

Anti-Privatization as a Second-Best Strategy, by Jeffrey Pojanowski

by Guest Blogger — Thursday, Mar. 8, 2018

There are a number of ways to be unhappy about the federal administrative state we have today. One is straightforwardly libertarian. The administrative state allows substantial, systematic interference with private ordering in a way that Congress, acting alone could not (and should not even try). Another way to be unhappy about the federal administrative state […]

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In Praise of Privatization

by Daniel Hemel — Thursday, Mar. 8, 2018

Jon D. Michaels’s new book, Constitutional Coup: Privatization’s Threat to the American Republic, offers a creative and—in my view—persuasive defense of the modern administrative state. I agree with Michaels that the tripartite allocation of authority among agency leaders, civil servants, and federal courts endows the administrative state with a measure of democratic legitimacy while also […]

That One Time I Agreed with Ian Millhiser (on Constitutional Law, No Less!)

by Chris Walker — Tuesday, Mar. 6, 2018@chris_j_walker

I have long admired Jon Michaels’ work on separation of powers and government privatization, so I was thrilled to learn he had further synthesized these strands of his research in a book-length treatment: Constitutional Coup: Privatization’s Threat to the American Republic. And I’m excited we’re hosting this symposium on the book here at the Notice and […]

Constitutional Coup, Privatization, and the Federal False Claims Act

by Sam Halabi — Tuesday, Mar. 6, 2018

There are already so many thorough analyses, illustrative applications, and thoughtful extrapolations of Jon Michaels’s provocative thesis, it took some time to decide where anything more might be usefully contributed.   It is, I think, at the conceptual role “privatization” plays in Constitutional Coup’s core argument.  The threat privatization poses to our fundamental constitutional order, according […]

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Spring 2018 Projects (ACUS Update)

by Emily Bremer — Monday, Mar. 5, 2018@emilysbremer

This week, the Administrative Conference of the United States will being spring committee meetings on a slate of new projects, including: (1) Administrative Judges; (2) Electronic Case Management in Adjudication; (3) Minimizing the Costs of Judicial Review; (4) Paperwork Reduction Act Efficiencies; and (5) Public Engagement in Rulemaking. The first four projects are targeted for completion at […]