Introduction to Book Symposium: Jon D. Michaels’ Constitutional Coup, by Jeff Pojanowski

by Guest Blogger — Monday, Mar. 5, 2018

This week, the Notice and Comment blog is hosting a web symposium on Jon Michaels’s book, Constitutional Coup: Privatization’s Threat to the American Republic. In the years leading up to this book, Michaels, who is a Professor of Law at UCLA Law School, has written extensively and thoughtfully on administrative law, constitutional structure, and the role privatization plays in both domains. The book is a culmination and extension of this work and offers a cogent, impassioned, and controversial critique of of privatization in American public law.

Arguments about privatization often focus on empirical questions about whether it saves money, or more abstract normative claims about market values in public life. Michaels takes a different, more distinctively legal, tack. He contends that privatization undermines constitutional, separation-of-powers values. As I have explained at greater length in a review essay that the Michigan Law Review will publish next month, Michaels’ argument is an important contribution even for–or especially for–those more skeptical of the modern administrative state than he is. (You can peruse my broader argument here.)

For now, though, I want to introduce readers to this symposium, and then the book itself. Chris Walker has put together a stellar line-up of contributors. The schedule of remaining posts (subject to change, as are all things web-by involving academics and deadlines) goes as follows:

Stay tuned, as we may rope in further participants and might even get a reply post from Jon himself!

Constitutional Coup: A Summary of the Argument

The first two parts of Constitutional Coup lay down the book’s historical foundation and then erect its evaluative framework. Building on a rich literature on privatization, Michaels presents a brisk overview of the role that private actors played in the federal government before the rise of the modern administrative state. Michaels offers this parade of privateers, tax ferrets, and Pinkertons not as precedent justifying contemporary privatization, but rather to consign the lot to a pre-history in which the federal government was small, unprofessional, and not particularly public-spirited. This passel of private operators grew obsolete, Michaels argues, with the rising demand in the Progressive and New Deal eras for a bigger, more interventionist federal government.

The expanding, professionalized federal government and the administrative state necessary to accomplish its tasks was, as Michaels admits, a “revolutionary” and “abrupt break” from the earlier constitutional regime. Nevertheless, he contends that the administrative state settled into an equilibrium that adapted and extended America’s core constitutional principles to modern government. The critical new features were the professionalization and tenure-protection the Pendleton Act introduced to the civil service and the public participation the Administrative Procedure Act brought to administrative governance.

With these institutions in place, Michaels identifies a constitutional structure within the administrative state analogous to our original, three-branch Constitution. The President remains the energetic head of executive governance; popular participation in administrative rulemaking ensures republican representation, and the tenure-protected, non-partisan experts in the civil service provide the cool judgment we associate with the judicial branch. Michaels recognizes imperfections in the analogies. Nevertheless, he contends that the structural comparisons are close enough to show that our constitutional order is not dead; it just has developed in a fashion that is congruent with its original form and strong and supple enough for the demands of modern governance. Ernst Haeckel’s theories of organism development are on the outs in biology, but in the ecosystem of Michael’s administrative law, constitutional ontogeny recapitulates phylogeny.

But the pax administrativa, as Michaels calls it, was not fated to last. By his account, that golden age ranged from the passage of the APA in 1946 to the widespread loss of trust in government in the late 1970s and the consequent rise of the Reagan Revolution. This loss of faith did not lead to the reduction in federal government; the American people liked government programs, even if they did not like the bureaucrats administering them. Enter privatization. Rather than trimming government services, successive administrations from Reagan to Clinton sought to trim the number of government workers providing those services—and make the remaining bureaucracy leaner and meaner. The federal footprint grew, even as more of its work was outsourced to contractors who, the theory goes, were more responsive to market discipline.

Michaels catalogues the wide array of federal tasks contracted out, including the setting of federal safety standards, and the interrogation of prisoners and enemy combatants abroad. He also describes the logic of the market creeping into the remaining bureaucracy with the reclassification of civil servants as at-will employees and the introduction of market-mimicking mechanisms into administration.  The result here is not the Deep State, though many contractors work for it. Rather it is what I would ccall the Wide State—an expanded and expanding federal government interpenetrated with, and partly concealed by, its connections with the private sector.

Michaels’ central complaint about privatization is that it undermines the pax administrativa’s precarious set of checks and balances, making administrative governance too easy. Echoing constitutional formalists, Michaels admonishes that a particular governing mechanism’s efficiency does not assure its constitutionality. The privatized para-state helps gather power that was once diffuse into hands of the presidency. Political agency heads do not have to allow tenured, bureaucratic sticks-in-the-mud slow down their policy agenda when they can hire more pliant contractors. Privatization also works around public participation because contractors are more lightly regulated and their operations are less transparent. Privatization thus undermines two of the three pillars of the pax administrativa, leaving the President and agency heads standing alone amid a coterie of compliant contractors.

Michaels dedicates the bulk of the book’s final part to restoring the administrative separation of powers. Taking a page from John Hart Ely, Michaels contends that courts should focus on “reinforcing rivalrous administration.” If courts are confident that agency action flows from a sound, fairly separated administrative process, it should review the merits with a very light touch. By contrast, if the process sidelined key components of the administrative separation of powers, courts should reduce or eliminate deference on merits review. Agencies that want to avoid judicial second-guessing would restructure their policymaking procedures, a result that would uphold constitutional values while having courts avoid substantive policymaking.

Michaels also proffers some stronger doctrinal medicine. He suggests that courts might prohibit agencies from using contractors to exercise policymaking functions or drop the presumption of regularity when the government uses private deputies to project public power. OIRA review, Michaels argues, also should be out because it allows the White House to undo the delicate regulatory compromises the three administrative “branches” struck in the rulemaking process. Independent agencies are also outré, since they are both too distant from the President and too close to the bureaucracy.

Finally, Michaels has a to-do list for Congress. In addition to a moratorium and clawback on contracting, Michaels borrows from the playbook of the U.S. military for a program to bolster the civil service’s prestige and morale, and he proposes steps to make it easier for citizens to participate in rulemaking. These legislative measures, Michaels argues, would strengthen the civil service and civil society, both of which have atrophied in recent decades while agency heads have flexed their muscles.

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Now, there is much to chew on here, and I will leave most of that to my fellow symposium contributors. Enjoy the forthcoming entries here and, as they say on the blogs, read the whole thing.

 Jeffrey Pojanowski is a Professor of Law at Notre Dame Law School.

This post is part of a symposium reviewing Constitutional Coup: Privatization’s Threat to the American Republic, a new book by Jon D. Michaels, Professor of Law at UCLA School of Law. All of the posts can be read here.

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