//  1/10/18  //  In-Depth Analysis

Take Care is pleased to host a symposium on Constitutional CoupIn this important new book, Jon Michaels shows how separating the state from its public servants, practices, and institutions harms our Constitution, and threatens the stability of the Republic. Contributors will assess his analysis in light of developments under Trump. 

Career bureaucrats are having quite a year.  Normally fated to go about their work outside of the limelight, with little fanfare or public interest, suddenly all eyes seemed pinned on them.  The President regularly jots off furious tweets about career intelligence and law enforcement officers.  Cabinet secretaries are so afraid or simply dismissive of the people populating their buildings that they isolate themselves from the career bureaucracy.  The administration’s supporters wring their hands about the so-called “Deep State” threat to the President’s agenda.  And on the other side, no doubt fanning these fears, are the calls by the administration’s opponents for the bureaucracy to rise up and resist him.  It so happens we’ve seen little actual evidence of the bureaucracy rising up in any organized fashion to undermine the President, despite an abundance of new twitter accounts purporting to speak for the “altEPA” and the “Resistance DOJ.”  But the fears of the President and his top appointees of the people inside their own government have led them to seek out alternatives to working with the line officials of the bureaucracy.  This has manifested in some agency heads and their staff cutting career bureaucrats out of the decision-making loop.  And reportedly, some advisors may also be looking to increase reliance on private contractors to take on some of the most fundamental work of the bureaucracy – such as, in the case of recent reports on a proposal by Erik Prince (of Blackwater fame), intelligence collection.

Handing over the reins of intelligence collection to a private company (the very company that needed to change its name after its employees killed 14 Iraqi civilians at a traffic circle in a notorious and tragic episode of the Iraq war) might seem like a blatant departure from norms of good government.  Such a move would be all the more terrifying when the clear and perhaps only purpose for creating a private intelligence service would be the President’s mistrust of the career members of the actual intelligence community, a mistrust based not on misbehavior but rather on their lack of personal loyalty to him.  

And yet, as Jon Michaels so thoroughly lays out in his excellent new book, Constitutional Coup, this turn toward privatization itself is part of a trend in U.S. executive branch governance that long predates the Trump administration.  And while prior political actors may not have been quite so bellicose in their dealings with the bureaucracy, it is nevertheless—Michaels notes, dismantling the perceived benefits of privatization—precisely the ability to purchase a coterie of yes men rather than have to deal with the “cantankerous” civil service that has long made the move toward privatization appealing to Presidents and agency heads.

Constitutional Coup is in part an ode to those civil servants, and to what Michaels describes as the tripartite “administrative separation of powers” that serves as something of a successor to the traditional separation of powers: the President, the courts, and Congress.  In Michaels’ account, those powers are now divided, respectively, among the components of the administrative state: the agency leaders, civil servants, and civil society itself.  (As an aside, while I wholeheartedly endorse Michaels’ commitment to these administrative checks as a necessary and legitimizing feature of modern government, I don’t necessarily see these actors as mapping so precisely onto the tripartite Madisonian model, nor need they to serve those goals.)

The national security arena is not the primary focus of Michaels book – in fact he explicitly brackets it – yet I view the importance of internal checks, and thus the danger of privatization, as just as great if not more so in an area where the courts and even Congress provide less particularized or rigorous oversight.  Indeed, I find internal constraints in the national security sphere to be alive, kicking, and essential.  I have both hailed and critiqued the efficacy of these constraints in the context of executive branch legal decision-making; the expanding conflict with al Qaeda; and the Obama war powers legacy.  And in a forthcoming piece, I unpack and defend bureaucratic resistance in the national security state.  Thus, I find Michaels’ warnings about privatization to hold as much or even more weight in the national security arena.

I want to focus here specifically on Michaels’ defense of the protected career bureaucracy vis-à-vis the privatization of the government work force through the weakening of protections for federal workers and the hiring of contractors to replace them.  The latest threat to that bureaucracy is the deep state rhetoric coming from the President and his allies.  So let’s consider for a moment what is really at the heart of deep state fear.  While the President himself may be stoking conspiracy theories as a means of undermining what he sees as threats to his position, the heart of the deep state narrative is a real concern about abuse of government power at the expense of the people.  The fear is that unaccountable, anonymous actors are wielding covert power untethered to democratic sources of authority, at the expense of the public, which has no recourse to challenge them.

Michaels’ account suggests that these “deep state” fears of the bureaucracy would be better directed at the looming rise of privatization.  As Michaels notes, the oft-cited justification for privatization is increased efficiency.  Yet to the extent hiring private contractors heightens efficiency, Michaels explains, it does not necessarily do so in terms of actual cost, or speed, both of which would benefit the public.  Rather the real beneficiaries of this “efficiency” are the agency heads who gain not by improving the results, necessarily, but by removing internal impediments to their own agenda.  Privatization enables these political actors to select hired guns to act on their direction, report directly to them, owe their positions to them, and likely have no incentive to question or push back on the preferences of those political actors.  In doing so, they bypass career civil servants who bring with them pesky encumbrances like statutory constraints, longstanding norms and personal expertise, status quo bias, and perhaps most important: broader institutional loyalties – to their office, agency, Congress, the public, and the country.

With this in mind, it is easy to see why privatization might appeal to President Trump and his co-travelers.  But it is this trend itself, the concentration of power in the hands of a few, and not the dispersed power of the vast and messy career bureaucracy, that presents the real threat to democratic accountability.

One of many insights in the book is Michaels’ observation that while we tend to focus our concerns on the possibility of rogue contractors (Snowden comes to mind), we pay scant attention to a potentially more universal problem – overly obsequious contractors who too zealously prosecute the President’s or agency leader’s agenda.  Add to this powerful contractors like Prince, eager to take advantage of the President’s paranoia in order to further his own agenda.

I might argue that each of these traits – rogue action, obsequiousness, and opportunism – are not necessarily distinct but rather may co-exist in a perfect storm of the worst risks of privatization.  Consider that what the president now views as deep state resistance is often bureaucratic actors simply continuing to do their jobs, per the longstanding process, statutory requirements, and norms of their office, agency and profession.  (Recall the President’s ongoing horror at the Justice Department’s continued efforts to maintain independence from political taint.)  But a contractor may feel, may even have, more freedom to disregard many of these constraints.  Thus, her zealous pursuit of the President’s agenda might mean blowing through the norms, culture, and laws that would constrain career bureaucrats from taking the same action—in other words, activity that would be rogue if pursued by a career bureaucrat.  And when we add opportunism to the mix, we have the possibility of an actor taking advantage of the President to advance her own interests, without regard for the hurdles and processes of good government that would normally force reflection and broader democratically-sourced investment in the course of action.

We don’t yet know whether the Prince intelligence scheme will have any purchase, but the military has long relied upon private contractors to fulfill many of the tasks for which we used to depend on career military officers.  Thus, while I agree with Michaels that the Prince proposal is a step beyond what has come before, at least in terms of sheer audacity, I nevertheless see it as very much part of the dangerous trend described in his book – just a starker and more explicit example.  Until now the tradeoff of bureaucratic encumbrances in exchange for political exigency has been more furtive.  Perhaps political actors intentionally couched their privatization moves in pretextual terms, or perhaps they genuinely believed that their focus on efficiency meant dollars and time.  My own instincts suggest it has often been the latter, and that in many decisions to move toward privatization, the rationales for doing so simply were not parsed out as clearly as Michaels does in his book.  A critical difference in the Prince proposal, particularly in light of the President’s antipathy toward the career bureaucracy, is that, as with so much else in the Trump presidency, there is not even the pretext of public interest.

If one wanted to be optimistic – and I do – there is one potential advantage in this President’s bluster.  His explicit disregard for the norms of government and his distaste for any checks on his power mean that the public and the other branches can see more clearly precisely what the President is up to.  Perhaps this will engender more forceful oversight and even pushback by the traditional Madisonian branches on the President’s agenda generally (as we have already started to see), but also specifically on any attempts he makes to instill a private, loyalist workforce in order to push that agenda through.  It would be a delicious irony if the President’s attempts to circumvent the internal checks on his authority were ultimately to serve to revitalize the external constraints on presidential power, as has been a legacy of presidents past.

The Affordable Care Act Does Not Have An Inseverability Clause

11/5/20  //  In-Depth Analysis

Contrary to challengers’ claim, Congress nowhere directed the Supreme Court to strike down the entire ACA if the individual mandate is invalidated. Congress knows how to write an inseverability directive, and didn’t do it here. That, combined with Congress’s clear actions leaving the ACA intact and the settled, strong presumption in favor of severability, make this an easy case for a Court that is proud of its textualism.

Abbe R. Gluck

Yale Law School

The Real Problem with Seila

8/24/20  //  In-Depth Analysis

Seila Law LLC v. Consumer Financial Protection Bureau that tenure protection for the Director of the Consumer Financial Protection Bureau is unconstitutional. The decision’s reasoning may be more important—and worrisome—than the holding itself.

Zachary Price

U.C. Hastings College of the Law

Roberts’ Rules: How the Chief Justice Could Rein in Police Abuse of Power 

8/19/20  //  In-Depth Analysis

A theme of Chief Justice John Roberts’ opinions this past term is that courts should not employ open-ended balancing tests to protect fundamental constitutional rights. Yet there is one area of the Supreme Court’s constitutional jurisprudence that is rife with such amorphous balancing tests: policing. It is long past time for the Court to revisit this area of law.