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 rampant privatization undermines this framework and thus amounts to a “constitutional calamity.” Others in this symposium have explored the normative appeal of privatization (pro, con, and in between) and the constitutional footing of Michaels’ tripartite administrative model. In my short contribution here, I’ll ask a different question: What are the implications of his framework for state government?
Michaels understandably focuses on the federal government, but the states are naturally a part of his broader story: States, like private entities, are increasingly administering federal policy. The federal government, that is, has expanded its footprint not only through the work of private contractors, but also (as John DiIulio’s book highlights) through armies of state and local government officials who implement (and often shape) highly consequential federal programs. And because Michaels’ framework stresses the need for “rivalrous, heterogeneous, and inclusive engagement” in “the administrative domain and, perhaps, … wherever else State power flows or will be funneled,” it raises the question whether his triadic recipe for legitimate government extends into the state domain. (There’s more to say about the federalism/privatization comparison, which I’m pursuing in a separate project and may blog about another time.)
I’ll limit my inquiry here to one of Michaels’ three pillars, civil society. If you haven’t (yet) read the book, Michaels argues that civil society is a pluralistic, deliberative body, somewhat analogous to Congress, and that it can help keep administrative agencies in check (or in balance) through acts that monitor, pressure, and challenge agency decisions. But, Michaels explains, there are challenges. Even without privatization, meaningful public engagement today can be difficult. With privatization, things get much worse: Privatization, Michaels writes, “shift[s] the physical locus of state power such that it is logistically and legally more difficult for the rest of civil society to participate meaningfully in policy development and execution.” I agree that civil society (as he broadly defines it) can be a vitally important check on government, even as it is also imperfect. (I’ve written about such imperfections here and here.) I agree, too, that we should take seriously and try to resolve challenges to meaningful public oversight of government work. What might we find if we turn this same line of inquiry—about challenges for meaningful public engagement and oversight—to the states?
Well, we might find that state government, and especially state administrative government, is not necessarily “closer to the people,” despite the common notion that it is just that. Even without considering the fact that states, too, privatize – a point Kate Shaw discusses in a great post from the Take Care symposium—state governments hardly operate in the fishbowl we place around the federal government. Even in the realm of elected state officials, as David Schleicher points out, many people know little about their representatives’ policy positions, or even who their representatives are. And, as I’ve written about in an article due out in the NYU Law Review next month, state administration is even more invisible to most of the public, even as it is also ever-expanding. This phenomenon has a number of roots—the difficulty of accessing some state agencies, the contraction of state-level media outlets with state-government beats, and the imbalances within the community of state-level interest groups. It also seems like there’s a widespread sense, understandable though inaccurate, that state government is less important or interesting and thus less worth tracking. People may simply be tired out from monitoring their federal reps and need to get back to their own lives.
Lackluster civil society oversight in the states is a shame because, as scholars have long observed, devolving power to the states potentially offers vast advantages for actual human contact and civic engagement. State government boasts greater physical proximity and a smaller number of citizens to attend to, and at least in the abstract, it fosters closer and easier connections between the government and the governed. With this come all the potential benefits that federalism scholars praise: government responsiveness, close community ties, and experimentation across different places. If Michaels’ good-government wake-up call speaks to you—and its appeal stretches across the ideological spectrum, as Jeff Pojanowski’s review notes—it is worth brainstorming and investing in ways to renew the promise of state government in whatever state you call home.
But back to where I began: you should read Michaels’ book. It is, as my co-contributors here have written, a clear, creative, and highly enjoyable read. It’s accessible not only to law students and law professors, but also to non-lawyers. With references to Mary Poppins and LeBron James, the Godfather and Superman, Michaels manages to show how the moving parts of administration, and the modern practice of privatization, matter to us all.
Miriam Seifter is an Assistant Professor of Law and the University of Wisconsin 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.