//  1/11/18  //  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. 

“You tell me it’s the institution. Well, you know, you’ve got to free your mind instead.”

John Lennon and Paul McCartney, Revolution.

Jon D. Michaels’ Constitutional Coup, like its author, is creative, insightful, and wide-ranging. The book paints a radically new picture of the constitutional position of our administrative bureaucracy, which it applauds as a vindication, not an abandonment of original constitutional principles. It explains how privatization threatens to eviscerate what Michaels depicts as an extraordinary twentieth century advance in American governance. And it offers a series of recommendations, some modest, some utopian for shoring up the beneficent governance regime which Michaels calls pax administrativa.

The foundational premise of Michaels’s constitutional argument is that the heart of what might be called the original constitutional organization chart is not its detailed allocation of different authorities to different branches of the federal government, but rather its commitment to a separation—specifically, a triangulation—of powers. The point of the original arrangement was not merely to erect a checks-and-balances hedge against tyranny, but to enable governance that is adequately “democratic, pluralistic, inclusive and deliberative” for a nation as diverse as ours (6). Over time, however, the major institutions created by the Constitution, i.e., Congress, the presidency, and the judiciary, proved inadequate by themselves to meet public demands for addressing national needs. The elected branches responded by creating a vast professional bureaucracy that, through a kind of evolutionary process, came to instantiate its own triangulation of powers. In other words, although many agencies now combine authorities to make and enforce the legal rules that govern us, an admixture that seems to defy the separation of powers, the bureaucracy as a whole represents a new constitutional regime in which “civil servants, presidential deputies, and members of civil society . . . approximate the rivalrous, contentious, and competitive arrangement we associate with the (framers’) three great branches” (9).

Michaels thus asserts that this new separation of powers recreates the normatively attractive brew of different institutional dispositions that the framers built into their original design. What “presidential deputies” presumably add to the mix is the energy and political mobilization that we associate with the President. What the organized public or “civil society” contributes is the raucous political contestation historically linked to Congress. What civil servants bring to the proverbial table is the commitment to deliberative, fact-based, rationalistic judgment that is embodied in courts, but with one enormous difference: unlike judges, civil servants are expert, professional policy makers. It is that professionalism and expertise that situate the career bureaucracy to be the mainstay of rational, impartial execution of the laws.

One might intuit from this picture that the “constitutional coup” of Michaels’s title was the overthrow of the primacy of our original institutions by the modern administrative regime they have enabled. The title instead refers to the threat to pax administrativa posed by privatization, which Michaels defines broadly to include:

Government reliance on private actors to carry out State responsibilities; government utilization of private tools or pathways to carry out State responsibilities; or government “marketization” of the bureaucracy, converting civil servants into effectively privatized, commercialized versions of their former selves and relying on them to carry out State responsibilities. (106)

All these strands of privatization threaten to upend the new separation of powers by enervating and hollowing out the career bureaucracy and making it more difficult for civil society to monitor and help steer the course of making public policy. This is profoundly dangerous because, in Michaels’s view, the regime of pax administrativa represents the best set of institutional arrangements for generating “sound” public policy in the American context. By “sound,” he does not mean policy that is “objectively best”—a determination he doubts can ever be made—but policy that “most faithfully reflects [America’s] distinct admixture of populism, legalism, establishment politics (mediated through the president), and bureaucratic expertise” (176).

It is not hard to anticipate the varieties of pushback Michaels’s arguments will encounter.  Equally provocative is his catalogue of reform proposals, which he links to the notion that presidents and legislators might be induced somehow to accept that they are no longer captains of the ship of state, but rather custodians of new constitutional actors that need to be kept in balance through careful, protective nurturance. My own view is that a number of his suggestions, including his advocacy for a more civically engaged public, are highly attractive, even apart from any custodial premise. Having written in a similar vein myself, I am not one to scoff at utopianism.

I believe, however, that Professor Michaels—or at least the account of current affairs that he offers in this book—significantly understates a danger to sound American policymaking yet more fundamental than the innovative institutional rearrangements he deplores. That danger is a lack of social solidarity in America, a state of alienation Americans feel from one another that has been deliberately fed by right-wing politicians for at least the last four decades.

To see why this is so important, it may be helpful to recast Professor Michaels’s normative argument in broad economic terms. The privatized making and implementation of public policy may be—and is certainly advertised to be—more efficient than policy making in the mode of pax administrativa. But, as Michaels argues, the argument from efficiency simply ignores certain benefits of messy, inefficient pax administrativa governance. Chief among these is the comfort a diverse nation can find in a highly fluid system that thrives on compromise, and that cycles through competing values of “liberty, equality, democracy, and expertise,” all of which people hold dear, but the respective dominance of which can and probably should vary from context to context. What Michaels would advocate resembles or would at least help enable an attractive vison of the rule of law once articulated by Jeremy Waldron that emphasizes the “ascendancy” in our constitutional system “of a certain culture of argumentation.”[1]

The problem for fans of this messiness—this culture of rivalrous, cumbersome, tyranny-avoiding, law-preserving policy generation—is that pluralistic governance is not cost-free. Like national defense, it is a public good. What Michaels calls pax administrativa is a national asset that, when robust, protects us all, whether or not we individually pay our fair share for its upkeep. Our supply of public goods cannot be optimized by market mechanisms because, as economists tell us, public goods, by definition, are non-excludable and non-rivalrous. However much I am willing to invest in maintaining pax administrativa, I cannot prevent its benefits from extending to free riders who pay nothing. Therefore, there must be social or political support for sustaining some non-market mechanism of support for public goods—taxation, perhaps, or philanthropy—that is sufficient to overcome the free rider problem.

Since at least the Reagan Administration, however, the very idea of public goods—or, indeed, a Public Good—apart from the aggregated revealed preferences of Americans as individual consumers has been under relentless attack. It has been attacked by moneyed interests that regard pax administrativa as an obstacle to their enrichment. It has been attacked by principled libertarians who are philosophically opposed to the idea of collective governance. And, to be frank, it has been opposed by segments of the American electorate who simply do not want to pay for institutional arrangements that work to the benefit of social groups to which they do not belong. The result has been an intensified estrangement of Americans from one another and a corresponding unwillingness to pay for goods that do not benefit us directly as individuals. If this is true in Congress even for goods as tangible and compelling as disaster recovery assistance—consider the unwillingness of conservative Senators to support aid for victims of Hurricane Sandy—consider how much harder it is to build support for underwriting the social cost of less tangible goods like pluralistic governance.

The reason why, like Professor Michaels, I have endorsed in my own work many of the kinds of steps he would seek in order to deepen civic engagement is not because I believe our elected branches can or should consign themselves to a custodial role vis-à-vis the administrative bureaucracy. It is rather because I believe we need to create a civic culture in which Americans see their individual welfare as truly linked to the individual and collective welfare of their neighbors, in which citizens think of government and governance as things not apart from them, but institutions in which they are vital actors. We need a revival, that is, not just of the machinery of government, but of democratic spirit more generally,

I doubt Professor Michaels would disagree with this. His book clearly understands the taming of privatization and the re-invigoration of pax administrativa to be a hearts-and-minds project, not just an agenda for architectural redesign.  The point I am making, however, is that it is not just civil servants—our unelected bureaucrats—whom we need to see differently. It is also one another. At a moment when Donald Trump, on his new presidential coin, feels free to replace, “E pluribus unum” with his campaign slogan, “Make America Great Again,” this will be no small project.


[1]Jeremy Waldron, Is the Rule of Law an Essentially Contested Concept (in Florida)?, 21 Law & Phil. 147, 156 (2002).

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.