Michaels on Parrillo and Government Privatization (AdLaw Bridge Series)

by Chris Walker — Monday, July 20, 2015@chris_j_walker

I previously blogged here about Nicholas Parrillo‘s terrific book Against the Profit Motive: The Salary Revolution in American Government, 1780-1940 (2013), noting that the book “is a fascinating read for anyone interested in the history (and future) of administrative law and regulation.”

Recently in the pages of the Harvard Law Review, Jon Michaels reviews Nick’s book and picks up where Nick left off on the history of privatization in American governance. Here’s a taste from his review, which you can read in full here:

This Review explains what happened after Against the Profit Motive leaves off, first as additional governance reforms carried forward the American administrative revolution that salarization begot, and later as critics, opponents, and revanchists started mounting a counterrevolution.

Part I outlines Against the Profit Motive’s key ideas and themes regarding salarization and recounts how salarization helped legitimate the then-burgeoning administrative state. Part II links Parrillo’s salarization story to later bureaucratic reforms—specifically, civil service tenure and the granting of broad public participatory rights in administrative governance—that, I argue, further legitimated the still constitutionally and democratically suspect administrative state. Part III considers the subsequent backlash against this distinctly public approach to public administration. This backlash began as a series of intellectual critiques of, in essence, the very ways in which American public administration had marked itself (through salarization, a tenured civil service, and extensive public participation in the administrative process) as different and special. In time, as I discuss in Part IV, those intellectual critiques found an especially favorable and accommodating vehicle—privatization—that operationalized the increasingly politically salient imperative to run government more like a business. Part V seeks to understand the present-day failure to defend, let alone celebrate, the “government-as-special” model of American public administration. This last Part also provides some thoughts on how to reclaim that once-proud mantle of government as special, and explains why there are good and pressing reasons for doing so.

Jon is no stranger to the government privatization debate, as he has written a number of great articles on the subject—e.g., here and here—and has a forthcoming book to be published by the Harvard University Press entitled The Second Privatization Revolution: The Unmaking of the American State.

This review is a fun read, and I look forward to Jon’s forthcoming book. And the review is all the more timely in light of the Supreme Court’s decision this Term in Department of Transportation v. Association of Railroads. (At issue there was a congressionally created corporation—Amtrak—and its congressionally delegated authority to engage in joint rulemaking with a more traditional federal agency, the Federal Railroad Administration. The D.C. Circuit had held that Congress could not delegate regulatory power to Amtrak because it was a private corporation (at least for rulemaking purposes). The Supreme Court reversed, holding that Amtrak is a government entity for constitutional rulemaking delegation purposes.)

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About Chris Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the Michigan Law Review, Minnesota Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and on the Governing Council for the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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