//  1/18/18  //  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. 

Words cannot convey how grateful I am to all of the participants in last week’s symposium on Constitutional Coup.  I cringed upon learning that the essayists cancelled plans on New Year’s Eve and battled baby haze just to read, reflect, and comment on my book.  But the results were spectacular—each of the participants pushed me to think more deeply and carefully about my project and, I hope, enticed some Take Care readers to pick up a copy (or two!) for themselves.

One of the challenges of writing a response of this sort is to give due consideration to each and every essayist’s contribution while keeping an eye on the length of the post.  So, without further ado, let me address one or two questions or challenges posed by each of the essayists.

An Even Bigger Big Tent

Among other things, Kate Shaw pushes me to consider other types of private actors.  Specifically, Kate is thinking of ideological—as opposed to profit-driven—organizations.  She is, of course, right to argue for their relevance. 

Kate highlights Americans for Life (AUL).  As Kate explains, AUL furnishes state governments with legislative, legal, and regulatory documents, reports, and services.  For instance, AUL supplies states with model pro-life legislation.  What’s most interesting to me about AUL, and other “ideological” organizations, is that AUL straddles the line between a dragooned deputy of the government (akin therefore to a run-of-the-mill for-profit contractor) and an active and influential member of civil society.  To the extent AUL is deputized by a government agency (whose leaders share AUL’s goals) to draft rules, provide services, etc., AUL is more than likely standing in for independent civil servants.  (Recall Constitutional Coup’s emphasis on an administrative separation of powers, triangulated between rivalrous groups of agency leaders, career civil servants, and the public at large authorized to participate in most administrative matters.  Replacing independent and contentious civil servants with likeminded deputies—such as AUL officials serving a conservative presidential administration—undermines one of the linchpins of the administrative separation of powers.)

And, to the extent AUL enjoys community backing because its pro-life message is attractive to a sizable number of Americans, AUL is able to use its perch as an influential member of civil society to reinforce the agency’s policies.  (Here we see further collapsing of the administrative separation of powers as the traditional separation between the bureaucracy and civil society is narrowed by select groups playing on both sides of the proverbial net.)  Of perhaps greatest importance, this straddling seems to distinguish ideological interest groups—AUL and the Sierra Club alike—from most for-profit firms.  Those firms can use their financial clout to lobby, but they cannot rely on grass-roots support to truly mobilize civil society.  Other than shareholders, nobody cares about Corrections Corporation of America or the work they do running private prisons.  But many folks are proud pro-lifers or committed environmentalists, eager to rally in support of AUL or the Sierra Club’s “government” work. 

Privatization and the “Delicious Irony”

I share Rebecca Ingber’s optimism that President Trump and his associates have been so brazen in their bullying of the federal bureaucracy that there is bound to be pushback—a bureaucratic renaissance, as it were.  One of the difficulties, however, will be in ensuring that privatization is recognized as a key weapon of the bullies (and thus properly targeted by those leading any such bureaucratic renaissance).  I mention this in part because we don’t hear that much about privatization in the Trump administration.  There are some oddities, like Trump wanting to retain his private security detail and Erik Prince’s splashy plans to deploy military and intelligence contractors.  But otherwise—and surprisingly given Trump’s early promises to run government like a business—there doesn’t seem to be much of a focus on contracting. 

One may guess why.  First, Trump and his associates are so shamelessly hostile to government workers that they’re dispensing with workarounds such as outsourcing and the marketizing of the bureaucracy—and instead flat-out pressuring nominally protected bureaucrats to leave, retire early, or toe the party line.  This isn’t privatization but thuggery.  Second, the Administration appears uninterested in better, smarter government; they want to dismantle government and government programs, and the best way to do that is to wage a war of attrition.     

For reasons Rebecca suggests, it would be a big mistake (and a terrible irony) for a reform movement to focus entirely on undoing the damage caused by Team Trump—and thus overlook privatization.  As the book explores in detail, privatization has, for decades, been undermining American bureaucracy. One may go so far as to say that the modern privatization revolution (from Reagan to Obama) helped pave the way for the direct assaults on bureaucracy that Team Trump is perpetrating.  Understanding that history helps us more fully appreciate today’s challenges and threats—and gives us the perspective necessary to ensure we never go down this road again.

Beatles > Carly Simon

Peter Shane has me beat, if for no other reason that his song lyrics beat mine.  Peter suggests thinking about the administrative separation of powers—and efforts to protect and fortify rivalrous administrative governance—as a public good.  Peter’s already realized fear is that we won’t sufficiently invest in administrative governance, just as we fail to properly fund any number of other public goods.

Peter is surely right, which is another reason why it is at the very least helpful to see “reinforcing rivalrous administration” as a constitutional imperative.  Like with indigent criminal defendants and court-appointed counsel, it ought not be up to the voters to decide whether they want to pay for rivalrous administrative governance—assuming, at least, they want administrative governance in the first place.  (I’ll have more to say about this in response to Ian Millhiser’s and Josh Chafetz’s essays below.)

But even if Peter were to endorse my constitutional argument, he’d still not be fully satisfied.  For him, the impoverishment of civic culture goes far beyond what happens in the context of federal rulemaking.  Even if it is just a drop in the bucket, boosting civic engagement in the administrative space may still be a good place to start.  First, there are lots of spillover effects from the type of civic and bureaucratic investments I propose.  Raising the status and profile of American bureaucrats will send signals to the public at large that, hey, government is special and these folks are doing important work—and maybe you should get involved, too! And providing educational tools to better connect Americans with regulators—and, as I propose, with each other—will no doubt enable and encourage further political and civic activism.

By no means do I think these are easy or quick fixes. Nor are they necessarily ideal.  Peter casts some of the ideas as modest and others as utopian, but perhaps they’re better described as modestly utopian.

Exit as Retreat and Regroup; Investing in Loyalty

Jennifer Nou invites us to consider the relevance of Albert Hirschman’s exit, voice, and loyalty triad.  Jennifer is right to say my focus is on bureaucratic “voice,” and less about “exit.”  Given the nature and history of federal civil service jobs, exit, by my reckoning, is a drastic step.  But these are surely drastic times.  One way to conceptualize exit is to see the departees as relocating from the bureaucracy to civil society, and pressing their case there.  Folks like Walter Shaub and Mustafa Santiago Ali come immediately to mind as exiles from the Trump administration who remain vigorous and effective advocates.  (Others, of course, have exited more quietly, and we may need to think about ways to amplify their voices, assuming they’re so inclined.)

Exit qua relocation, while lamentable for any number of reasons, isn’t necessarily a terrible short-term strategy, if indeed civil society seems a more effective perch from which to constrain a particularly abusive administrative rival.  Long-term, of course, it would result in reducing the number of administrative rivals from three to two.  (I should add that Jennifer’s comments make me think about congressional exit and the constitutional separation of powers. Given the number of early retirements by Republicans seemingly repulsed by the Trump administration, what will the next session of Congress look like?)

Jennifer also queries “loyalty.”  Loyalty is, to be sure, a word that means and is understood to mean different things to different audiences.  (Recall the reported Trump-Comey exchange vis-à-vis what loyalty means.  Recall too Secretary Ryan Zinke’s recent claim that 30% of Interior Department employees are disloyal, specifically disloyal “to the flag.”)  I agree with Jennifer that the type of loyalty we want from bureaucrats is loyalty to the State.  Such loyalty is under attack now, and has been—albeit less brazenly—for decades. 

In the book, I provide several policy reforms that, I argue, will have the effect of boosting bureaucratic morale, making government work more attractive and rewarding, and making plain to the American public how and why government service is worthy and noble (such that loyalty to the State is seen as an unalloyed good, not part of some Deep State conspiracy).  These proposals will, I hope, also have the effect of fortifying the civil service—and strengthening its “voice”—thus making involuntarily exit even less attractive or necessary.

Among other things—and connecting this thread to something else Rebecca noted in her essay (re military bureaucracies)—many of my proposals to strengthen the domestic bureaucracy are torn from the playbook of the military, which is highly effective in recruiting and training top talent, rewarding excellence, and using conventional and unconventional media platforms to drum up and maintain broad public support for its programs and initiatives. 

Agency Leaders in the Shadows

Brianne Gorod raises interesting and important points about President Trump’s high-level appointments.  We hear a good deal about Trump’s failure—or refusal—to appoint hundreds of agency leaders across the administrative state.  We may then assume the absence of appointees produces a power vacuum quite possibly filled by civil servants.  But, in fact, the president “has quietly installed hundreds of officials to serve as his eyes and ears at every major federal agency.”  These placeholders escape the scrutiny that otherwise attaches to those formally nominated (and thus subject to advice and consent of the Senate). 

Brianne underscores how these placeholders, temporarily installed to run departments and bureaus, pose any number of risks, precisely because they evade not only Senate but also public scrutiny.  Brianne may actually be understating the concern. Given the uneven quality of persons the president has formally nominated to run agencies, one shudders to think what skeletons reside in the closets of those deemed too controversial for Senate confirmation.

These placeholders may be invisible to us, but presumably aren’t to those within the bureaucracy.  In this symposium (and in my book), much is made of the future of the bureaucracy—and what the bureaucracy will look like if and when there is a bureaucratic renaissance.  But Brianne invites us also to think about what it means for the long-term credibility and influence of agency leaders.  Here are two quick thoughts:

First, confronting agencies whose leaders are anonymous, unconfirmed placeholders, ethical failures, or avowed enemies of the institutions they run, courts may be less inclined to defer (or to give as much deference); those courts may assert the agencies lack competent and credible leaders. Though those courts might be criticized for practicing “Trump exceptionalism,” the fact of the matter is that administrative governance today is showing signs of being especially, perhaps uniquely, dysfunctional. 

Second, if we indeed experience the bureaucratic renaissance I call for, we may ultimately see bureaucrats demanding greater leadership roles, either through the elimination of some political layering atop the agency or through upward promotions (that is, presidential appointments of civil servants to leadership positions).  On that last point, it isn’t surprising that we’ve seen a good deal of upward promotions over the years in the State Department, where any number of assistant secretaries and ambassadors have been plucked from the ranks of the civil service.  After all, the Foreign Service stands out as an especially strong, thick, and respected bureaucratic culture.

Political, Not Jurisprudential Fixes

(Josh Chafetz and Ian Millhiser both caution against an overreliance on the courts.  At the risk of conflating some of their arguments, I will address both essays here.)

Josh Chafetz and Ian Millhiser both seem supportive of an administrative separation of powers but are skeptical of the role courts can play.  

Josh’s argument is two-fold. First, Josh thinks courts aren’t especially good at policing non-judicial institutions.  Second, Josh thinks the courts aren’t interested in reinforcing rivalrous administration.   

On the first point, I’m not convinced that the courts will poorly police the administrative separation of powers or, more importantly, that it will matter.  There is an admittedly uneven history of courts policing administrative rulemaking procedure—recall the old Bazelon-Leventhal debates on the D.C. Circuit. But (a) one of the problems with earlier attempts to police procedure was that there wasn’t a clear constitutional imperative to guide and focus judicial interventions (and there is now); and (b) it isn’t clear that courts are any better at evaluating administrative results—that is, whether a particular emission standard or safety protocol is a reasonable one—than administrative inputs (yet we rarely question judicial authority over agencies on questions of law, fact, and policy).  What’s more, as I say in the book, the courts don’t have to be particularly accurate when they police procedure, just active. In short order, the threat of judicial invalidation will do good work in deterring the relevant stakeholders from trying to subvert the administrative separation of powers.  The threat will also motivate policymakers to undertake structural reforms to ensure a robust administrative separation of powers.

That still leaves Josh’s second point, which is, in essence: hey, dummy, the federal judiciary isn’t your friend.  And, if and when the judiciary becomes your friend, you won’t need its help.  I am not sure that’s entirely true.  There is a chance that the DC Circuit (and even the Supreme Court) “flips” relatively quickly, within the lifecycle of a two-term progressive president. Legislative reform, by contrast, will likely require the election of a progressive president and progressive majorities in both houses, a far less certain proposition.  The larger point, though, is that I am indeed writing for future courts, and I’d be perfectly happy with the courts playing catch up, as they did during the New Deal.  Imagine if the federal courts of the 1960s and 1970s recognized an administrative separation of powers (decades after the structural framework came into being).  Sure, they’d be late to the party, but hardly unnecessary or unwelcome.  The jurisprudence of that era would have served as a bulwark against those who worked in the 1980s, 1990s, and 2000s to chip away at the federal bureaucracy and undermine the administrative separation of powers. 

Ian Millhiser too focuses on courts.  We see things, I think it is fair to say, quite differently.  Perhaps it makes most sense to focus on the New Deal jurisprudence, which Ian sees as “deconstitutionali[zing]” questions of economic policy and administrative structure.  I, by contrast, see the New Deal court as participants in the constitutionalization of the administrative state.  Whether we call it a constitutional moment or something else, economic regulation channeled through a host of agencies is possible precisely because the courts sanction (bounded) departures from the Framers’ finely wrought scheme.   

One reason why I think it makes sense to continue talking about the constitutional underpinnings of the administrative state is because the constitutionality of the administrative state remains, at least in some circles, a debatable proposition.  And I’m not sure we have put the administrative state’s best foot forward, relying as we have for generations on what some—including some progressive justices—may characterize as a legal fiction (namely, that agencies aren’t actually lawmaking).  For that reason, if no other, I see the need not only to continue discussing the constitutionality of the administrative state but to furnish what I think is a more compelling justification—one that has the added feature of having something specific to say about the privatization revolution of the past several decades. 

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Again, I am incredibly grateful to all the participants, to Joshua Matz for his hosting and recruiting efforts, and to all those who’ve been supporting the Take Care Blog since its inception last year.  

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.