Pretend Privatization

by Aaron Nielson — Monday, Mar. 5, 2018@Aaron_L_Nielson

Jon Michaels has written an important book — and I say that even though I suspect that he and I disagree about many things! Although the administrative state has value, it also “has its share of problems.” For instance, the federal government sometimes overreaches in “ominous” and even “crushing” ways. Like the Chief Justice, I’m concerned that mingling of powers has become the rule, rather than the exception. And the Chief Justice, in my view, is also correct that the Constitution not only limits the ends available to the government, but also the means it can use to pursue those ends: “[A] strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way.” To the extent that Michaels disagrees, I respectfully dissent.

But I certainly don’t disagree with Michaels about everything. To the contrary, he makes important points.

For instance, Michaels is quite right that pretend privatization is a problem. By “pretend privatization,” I mean situations in which the government tries to avoid being labeled as the government, even though it still wants to exercise the powers of government. Michaels notes that an example is Amtrak, an entity that has been discussed many times here at Notice & Comment. As Michaels explains, “government corporations exercise any number of sovereign powers, including rulemaking and rate setting, that cannot be characterized as mere market transactions or as proprietary interventions entirely peripheral to the task of democratic governance. As such, claims that there is no need for government corporations to submit to checks and balances similarly fall wide of the mark.”

I agree. To see why, let’s focus on Amtrak. The U.S. Code declares that Amtrak “shall be operated and managed as a for-profit corporation” and “is not a department, agency, or instrumentality of the United States Government.” Yet this section of the U.S. Code is misleading. After all, Amtrak is an instrumentality of the United States, at least under the Constitution. More than that, the D.C. Circuit has held that Amtrak has been granted regulatory authority. Given this reality, shouldn’t it be rather than

Such pretend privatization is problematic. Quoting Justice Alito:

I begin with something that may seem mundane on its face but that has a significant relationship to the principle of accountability. Under the Constitution, all officers of the United States must take an oath or affirmation to support the Constitution and must receive a commission. See Art. VI, cl. 3 (“[A]ll executive and judicial Officers … shall be bound by Oath or Affirmation, to support this Constitution”); Art. II, §3, cl. 6 (The President “shall Commission all the Officers of the United States”). There is good reason to think that those who have not sworn an oath cannot exercise significant authority of the United States. See 14 Op. Atty. Gen. 406, 408 (1874) (“[A] Representative … does not become a member of the House until he takes the oath of office”); 15 Op. Atty. Gen. 280, 281 (1877) (similar). And this Court certainly has never treated a commission from the President as a mere wall ornament. See, e.g., Marbury v. Madison, 1 Cranch 137, 156 (1803); see also id., at 179 (noting the importance of an oath).

Both the Oath and Commission Clauses confirm an important point: Those who exercise the power of Government are set apart from ordinary citizens. Because they exercise greater power, they are subject to special restraints. There should never be a question whether someone is an officer of the United States because, to be an officer, the person should have sworn an oath and possess a commission.

Here, respondent tells the Court that “Amtrak’s board members do not take an oath of office to uphold the Constitution, as do Article II officers vested with rulemaking authority.” Brief for Respondent 47. The Government says not a word in response. Perhaps there is an answer.[*] The rule, however, is clear. Because Amtrak is the Government, those who run it need to satisfy basic constitutional requirements.

As Michaels observes, himself quoting Justice Scalia, the federal government cannot “‘evade the most solemn obligations imposed in the Constitution by simply resorting to the corporate form.'” For ordinary citizens to hold the government accountable, they must be able to know who is and who is not the government, and the Constitution’s checks and balances must apply in word and in deed. Pretend privatization makes that more difficult.

No doubt people of good will can disagree about how much real privatization — efforts to leave certain issues to the private sector — is appropriate. (Regulation, unfortunately, sometimes makes things worse rather than better.) And we can also disagree about how much outsourcing of government functions — the main target of Michaels’ analysis — is permissible and prudent. (The Supreme Court will soon confront who is an “officer” under Article II. When it comes to those who aren’t on the “officer” side of the line, however, I’m not sure that the Constitution — as a rule — has much to say.) But we should all agree that pretend privatization is a problem.


* It should be noted that the Government’s post-remand brief to the D.C. Circuit addressed this point: “Amtrak board members who are appointed by the President and confirmed by the Senate are subject to the ordinary procedure through which the State Department prepares formal commissions that are signed by the President. The process applicable to such presidential appointees also involves the administration of an oath to support the Constitution.” At the same time, the Government acknowledged that “Amtrak’s president did not take an oath or receive a commission when he first assumed that position.”



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.

Cite As: Author Name, Title, 36 Yale J. on Reg.: Notice & Comment (date), URL.

This entry was tagged , .

About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School, where he teaches and writes in the areas of administrative law, civil procedure, federal courts, and antitrust. He currently serves as a public member of the Administrative Conference of the United States, a federal agency that studies the administrative process and makes recommendations on ways to improve it. He also co-chairs the Rulemaking Committee of the American Bar Association’s Section of Administrative Law & Regulatory Practice. Previously he chaired the Section's Antitrust & Trade Regulation Committee. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. Follow him on Twitter @Aaron_L_Nielson.

Leave a Reply

Your email address will not be published. Required fields are marked *