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 […]
Jon Michaels’ new book is a masterful blend of important and fascinating subjects, including the constitutional character of administrative law, superstatute theory, privatization, and procedure. It’s a fun read, too, and a must for anyone interested in a fresh perspective on the perils of privatization! In this post, however, I’m going to focus on some discrete details of […]
There are a number of ways to be unhappy about the federal administrative state we have today. One is straightforwardly libertarian. The administrative state allows substantial, systematic interference with private ordering in a way that Congress, acting alone could not (and should not even try). Another way to be unhappy about the federal administrative state […]
Jon D. Michaels’s new book, Constitutional Coup: Privatization’s Threat to the American Republic, offers a creative and—in my view—persuasive defense of the modern administrative state. I agree with Michaels that the tripartite allocation of authority among agency leaders, civil servants, and federal courts endows the administrative state with a measure of democratic legitimacy while also […]
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 […]
There are already so many thorough analyses, illustrative applications, and thoughtful extrapolations of Jon Michaels’s provocative thesis, it took some time to decide where anything more might be usefully contributed. It is, I think, at the conceptual role “privatization” plays in Constitutional Coup’s core argument. The threat privatization poses to our fundamental constitutional order, according […]
I have long admired Jon Michaels’ work on separation of powers and government privatization, so I was thrilled to learn he had further synthesized these strands of his research in a book-length treatment: Constitutional Coup: Privatization’s Threat to the American Republic. And I’m excited we’re hosting this symposium on the book here at the Notice and […]
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 […]
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 […]
It’s no secret that agencies communicate with the public. Nor is it a secret that the public often listens. It is worth thinking about, however, why the public listens. Sometimes, of course, it is a not a mystery why what an agency says is important. Imagine, for instance, that an agency has authority to waive […]
The Administrative Procedure Act and the question of judicial deference to agency action may be at the center of the typical Ad Law course syllabus. But they are far from the main topics in the story of How Agencies Communicate uncovered in this symposium. Rather than studiously following the notice and comment process to produce […]
In administrative law doctrine, much significance is placed not only on what agencies say but on the format they use to say it. Interpretations of statutes expressed in legislative rules carry the force of law—i.e., are legally binding on private parties—so must comply with Administrative Procedure Act (APA) notice and comment requirements and usually are […]
As Elizabeth Porter and Kathryn Watts noted in their contribution to this symposium on how agencies communicate (as well as Michael Herz in his contribution), federal agencies have begun to utilize social media and other channels to explain and promote their preferred regulatory outcomes. Sometimes such communications take place during the public comment period on […]
The most official way for an agency to communicate with the public is through binding legislative rulemaking. But an agency can send out communications much faster, and at higher volume, if it communicates by guidance—that is, by general public statements, nonbinding, giving its current thinking on how it will interpret the law and use its […]
When regulated entities or the public want to know what a regulation means, where do they look? They will, of course, focus on the text of the regulation. But what other sources bear on how regulations apply? In particular, what is the most authoritative source agencies issue to assist in determining the meaning and application […]