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 and there is much to commend it to your attention.

In spots, I even agree with Michaels’s vision for a better government. For example, he emphasizes James Madison’s vision for “[a]mbition . . . counteract[ing] ambition”—recognizing that too much centralized power held by any one actor is problematic. Consequently, Michaels provides a healthy dose of skepticism for the concentration of power within independent agencies headed by generally unfireable leaders. Also, the core thesis of Michaels’s work is that privatization of government services ultimately undermines constitutional accountability structures. In at least certain instances, such as where government authorizes private actors to bind the rights of the public without any proper appointment to exercise governmental power, I agree with Michaels that privatization can raise concerns.

But the core premise of Michaels’s work is that privatization must be restrained because it undermines an administrative separation of powers that Michaels sees as the source of redemption for an administrative state maligned by critics. Like Chris Walker, I am not as sanguine about Michaels’s alternative separation of powers vision as some may be. Walker points out in his review that although (at least some of) Michaels’s favored mechanisms for subdividing administrative power are positive, the mechanisms are not constitutionally required. I would go (at least) one step further. In the end, I think the core “administrative separation of powers” structure that Michaels hypes is at odds with, and fundamentally undermines, the constitutionally mandated separation of powers already in place.

Let me explain. Michaels aptly picks up on one of the core observations that leads Madison to advocate for the division of power among rivalrous actors in the 1788 Constitution. Like Madison, Michaels notes that the federal government never was intended to be particularly efficient. Rather, the Framers wanted to make it difficult for the federal government to act (as evidenced, for example, by the very tough requirements for enacting a bill into law). That way it would not be too easy for just one actor or entity to have their way and improperly bind the public or state governments. But unlike Madison, Michaels is heavily vested in retaining much of the regulatory structure created during the New Deal and beyond. Michaels seems to recognize, and accept, that much of the current administrative system was made possible by a migration away from the strict separation of powers of the 1788 Constitution. Consequently, Michaels attempts to create a new separation of powers structure—one that will be compatible with the mid-twentieth-century regulatory advances that he takes now as a given.

Unfortunately, Michaels’s vision misses the core linchpin on which Madison’s theory of accountability hangs—a chain of accountability back to the electorate. In Federalist No. 51, along with the ambition-counteracting-ambition sentiments that Michaels notes, Madison asserts, “A dependence on the people is, no doubt, the primary control on the government.” Madison observes that the conflicts between the branches are just an “auxiliary precaution[].”

In contrast, here is the “administrative separation of powers” that Michaels posits.

The Executive: “Agency Leaders” serve as “The Administrative State’s ‘President.’” Michaels sees agency leaders as appropriate “presidential proxies. These leaders are selected and appointed by the president, and, with the exception of independent commissioners [about whom Michaels is skeptical], they serve only at the president’s pleasure. For these reasons, agency leaders can generally be expected to internalize and champion the White House’s political and programmatic agenda.”

So far, so good.

The Judiciary: Embodied by civil servants, in Michaels’s vision. Because civil servants are tenured and tough to fire, Michaels finds them to be “legally well situated and institutionally and even culturally inclined to counter political overreaching, promote reasoned approaches to decisionmaking, and provide intergenerational stability in ways not unlike the unelected federal judiciary in its interactions with Congress and the president.” He notes that like federal judges, “civil servants are ostensibly nonpartisan [and] insulated from political pressure by virtue of custom and job tenure.”

Here, the constitutional conservative gets nervous.

Unlike federal judges, many civil servants are not hired by the elected President or his appointed department heads. Also, unlike federal judges, typical civil servants do not face the public confirmation process, with an up-or-down vote by the people’s elected proxies, the U.S. Senators from all 50 states.

But, there’s more.

The Legislature: Regarding this governmental branch, Michaels explains, “In our administrative revival of the great constitutional drama, civil society takes up the part of Congress.” He contends that because “civil society is internally heterogeneous, encompassing wide-ranging views, . . . [and] articulating local concerns as well as cohering around national priorities,” it can “express[] the People’s will on matters of public import.” How does civil society legislate federal policy in the stead of a Congress that is insufficiently active in Michaels’s vision? By providing a “broad array of public comments” on agency rules.

This is trouble.

Essentially, Michaels contends that agency heads and civil servants prevent each other from getting out of line and abusing power by remaining in persistent tension. The public gets its say in the process—and acts as a constraint—because it may provide commentary to influence agencies as they promulgate new rules to bind the public.

Sure enough, the public may comment on agency rules and, under the Administrative Procedure Act as interpreted by modern courts, agencies must closely consider well-reasoned comments. But does the public role in notice-and-comment rulemaking adequately substitute for an electorate with voting power over a President who governs through appointed department heads who in turn direct civil servants to carry out a mission—or be fired for poor performance? What about the avalanche of agency actions in which the general public has no official say? Actions like agency policy statements, interpretive rules, substantive rules exempt from notice-and-comment for good cause, and adjudications? And what about the limits on the public’s influence even when the public has the right to comment during substantive rulemaking? Agency heads are not bound to follow public comments. And comments don’t necessarily hold sway even when they’re supported by large numbers of the public; the most persuasive comments are typically the most informative or data-driven comments that present a new, previously unconsidered, angle for the agency to evaluate. There is no democratic vote count requiring agencies to adopt a specific popular position on a rule. But Presidents and legislators with insufficient votes must leave office at reelection time. Hence, for the public to really have consent in its government, the governing must be done by the elected Congress and President with his cadre of appointed and supervised subordinates. Efficient or not.

The crux of Michaels’s administrative, subdivided, system of governance is an insulated civil service. In his concluding chapter, he recommends the hiring of an additional one million civil servants. He also suggests even better, more comprehensive training for this reinvigorated corps. Specifically, he suggests the creation of an academy, like West Point for the military, where civil servants separate out from the masses to join together and become experts specially trained in the art of technocratic governing.

But what power structure remains to keep the insulated civil service itself accountable in the face of ordinary human weakness, mistake, or limited vision? Michaels concludes with an impassioned plea that for civil servants to perform their tasks effectively, we must respect and praise them. I agree. Our country is best served when we properly hold our civil servants in high regard. And, in fact, many civil servants are fabulous in carrying out their mission. But what if, just maybe, part of the degradation in esteem for civil servants that Michaels laments ironically has arisen from increasingly expansive tenure protections that keep in place the few very bad actors at the expense of the reputations of the rest?

Like Pojanowski, I recommend that you read, and purchase, the tour de force that is Constitutional Coup. But I wouldn’t mind if, in keeping with Michaels’s suggestion that we all get a little more civic education, you read Michaels’s book while holding your copy of the Constitution by your side.

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.

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About Jennifer Mascott

Jennifer Mascott is an Assistant Professor of Law at George Mason's Antonin Scalia Law School where she teaches Administrative Law and serves as the Faculty Director of the Supreme Court and Administrative Law Clinics. She is a public member of the Administrative Conference of the United States. Previously she served as a law clerk to Justice Clarence Thomas and to D.C. Circuit Judge Brett Kavanaugh. Follow her on Twitter @jennmascott. Her scholarship is here:

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