//  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. 

I’m old enough to remember when judicial restraint was a bipartisan virtue.

President Nixon railed against judges who “put their social and economic ideas into their decisions.” The Reagan administration denounced Lochnerism and promised to appoint judges who would exercise restraint. A member of George W. Bush’s cabinet praised the Federalist Society for building a world where “judicial modesty is sufficiently well-established that everybody understands, even the critics of that claim, that they have to take it seriously and they have to address it.”

That world, however, has been replaced by forces much more eager to see the judiciary play an aggressive role in our society. After seemingly endless challenges to the Affordable Care Act -- along with judicial efforts to diminish voting rights law, weaken organized labor, empower religious conservatives, and dismantle campaign finance regulation, among other things -- the post-New Deal understanding that judicial restraint should be the rule and aggressive judicial review the exception is no longer ascendant within the judiciary.

Meanwhile, the very same Federalist Society that once championed judicial modesty is fixated on a very particular role for the judiciary -- dismantling the administrative state. Indeed, many of the Society’s events reveal an Ahab-like obsession with this singular goal. Ideas like abolishing Chevron deference, reviving and invigorating the Nondelegation Doctrine, enacting legislation like the REINS Act, which would neuter the federal regulatory process, or even eliminating agencies’ power to promulgate binding regulations altogether, now dominate the Society’s discourse.

And the Federalist Society’s allies on the bench, including Justice Clarence Thomas and Neil Gorsuch, who occupies the seat that Senate Republicans held open for a year until Donald Trump could fill it, have wholeheartedly embraced many of the most aggressive ideas to rein in the administrative state or even render it powerless.

Jon Michaels’ Constitutional Coup: Privatization’s Threat to the American Public is well aware of this threat to modern administrative law. As it is aware that many of the new conservative attacks on administrative law claim a constitutional justification for doing so. Though “most of us have made our peace with administrative agencies,” Michaels writes, “it remains an uneasy, awkward peace” because the modern administrative system may pay insufficient heed to the constitutional separation of powers.

Agency regulation, and administrative law generally, is vulnerable to attack by men such as Thomas and Gorsuch because, Michaels fears, scholars and judges have not placed administrative law on sufficiently a sufficiently sound constitutional foundation. Constitutional Coup is, to a large extent, an effort to build that foundation.

Yet, while Constitutional Coup is an excellent book which provides a strong defense for what Michaels labels the “administrative separation of powers,” I fear that it is guilty of much the same sin that Thomas and Gorsuch engage in when they use the Constitution as a bludgeon to attack a regulatory state they disapprove of. Though Michaels provides a very strong normative case for his proposed administrative separation of powers, he overreaches when he claims that his framework is “coextensive with constitutional law.”

Michaels proposes that administrative agencies are constrained by a kind of separation of powers that closely tracks the Constitution’s division of power among Congress, courts, and the executive. Agency heads, who are normally single individuals appointed by the nation’s chief executive, act as the president’s proxy within the agency. Civil servants, with their technical expertise, nonpartisan ethic, and protections against arbitrary firing, play a role similar to the judiciary. And civil society as a whole plays Congress’ role as a cacophonous source of diverse views.

Agency actions that involve all three branches of Michaels’ administrative separation of powers -- agency heads, civil servants, and the public -- are legitimate because they are likely to be made in the kind of rivalrous crucible that also produces legislation in the Madisonian system. Agency actions that aggrandize power in just one part of this triumvirate are less legitimate in Michaels’ framework.

As a policy matter, this framework strikes me as insightful and correct. Absent some formal check on agency leaders, political appointees are likely to dominate agencies and press an agenda which is congenial to the sitting president, even if that agenda is difficult to square with decades of established law or even with explicit statutory text. An agency’s job, after all, is to carry out laws that were enacted over the course of many presidential administrations, not simply to implement the incumbent’s prefered policies. And Michaels makes a particularly strong case that civil servants must have robust protections to ensure that existing law does not take a backseat to one person’s ambitions.

But is an administrative separation of powers mandated by the Constitution, as Michaels suggests that it is?

Unlike the separation of powers among the three constitutional branches, there is no textual hook in the Constitution for Michaels’ administrative separation of powers. Nor is the history Michaels recounts in his book consistent with an originalist case supporting his framework. Michaels is correct that the early American government’s reliance on privateers, tax weasels, Pinkertons and other private contractors speaks more to the very different conditions that existed in the early United States than it does to a requirement that government use private contractors today. But, at the very least, this early history suggests that the Constitution was not originally understood to offer civil service protections to government workers.

Michaels argues, however, that the administrative separation of powers is implicit in the structure of the Constitution. “The administrative separation of powers,” he writes, “is in keeping with a constitutional vision that rejects unrivaled expressions of State power in favor of expressions that are the product of contentious, multipolar engagement.”

Yet, as Michaels acknowledges, while policing the separation of powers among the three constitutional branches, the Supreme Court has jealously defended against attempts to rework the balance of power among these branches. Hence INS v. Chadha’s conclusion that a house of Congress cannot veto a decision properly left to the executive branch. Or Clinton v. City of New York’s conclusion that a line-item veto disturbs the balance of power between the president and Congress.

The constitutional separation of powers, in other words, do not simply require that power be divided among three branches -- one of which reflects the diverse views of the public at large, a second of which is chosen by the people as whole, and a third which favors expertise and nonpartisanship. It lays out a very precise allocation of powers amongst these branches, and rejects attempts to rework that allocation.

Given that the Constitution demands such a precise allocation in this one context, it strikes me as very odd to claim that the Constitution also mandates an implicit balance of powers within agencies, that this balance is defined nowhere in the text of the Constitution, and that this administrative separation of powers flows from the fact that agency heads, civil servants, and the public all bear some resemblance to the president, judges, and Congress, respectively.

If the Constitution did provide for an administrative separation of powers, one would expect the precise allocation of those powers to be defined very particularly -- just as they are defined very particularly with respect to the executive, the legislature, and the judiciary.

In one sense, this concern that an administrative separation of powers cannot be found implicit in the Constitution itself may have little practical impact. Though it may not be required by the Constitution, much of Michaels’ framework is explicitly required by laws such as the Administrative Procedures Act. And, to the extent that Congress agrees with Michaels’ proposed framework, nothing prevents lawmakers from writing it into law. 

I do, however, want to push back at Michaels’ effort to constitutionalize a rule that is properly a matter of statutory law, because it tends to concede Thomas and Gorsuch’s point that the Constitution is the proper battlefield for disputes over how to structure federal agencies.

The last time men like Thomas and Gorsuch sought to hobble the administrative state -- and, indeed, advance a comprehensive, laissez-faire vision of the Constitution -- was in the pre-New Deal Lochner Era. The tactic that ultimately prevailed against these elements, however, was not a kind of liberal Lochnerism which traded Mr. Herbert Spencer's Social Statics for the values embraced by John Maynard Keynes or John Rawls. Rather, the tactic that ultimately prevailed was the New Deal Court’s decision to deconstitutionalize questions of economic policy and administrative structure.

This settlement now appears to be breaking down. But it proved robust enough to survive -- and even be embraced by -- the administrations of Richard Nixon, Ronald Reagan, and both Presidents Bush. The values of judicial restraint advanced by the New Deal settlement still  occasionally sway Chief Justice John Roberts to inaction, even as judges like Thomas or Gorsuch urge him to be more aggressive.

As Michaels notes, he “developed and wrote much of Constitutional Coup during the latter years of the Obama presidency—and with the full expectation that Hillary Clinton would trounce Donald Trump in the 2016 presidential election.” Perhaps, in a world where Justice Merrick Garland holds the deciding vote in controversial cases, we could think about what role we wanted the courts to play in perfecting our administrative system. But, in the world we live in now, we are likely to spend the coming years defending the administrative state’s right to exist against advocates (including advocates who wear black robes) determined to tear it down and usher in another age of laissez-faire constitutionalism.

Appealing to judicial restraint is the one tactic which has a reasonably consistent record of convincing conservative judges to stay their hand. I fear that appealing to an alternative vision of the Constitution, such as Michaels’ administrative separation of powers, will prove less effective.

I’ll conclude by noting that this appeal to judicial restraint isn’t just a rhetorical tactic. I also believe it is the correct course of action as a matter of constitutional law. In a modern, complex society, many forms are regulation are functionally impossible unless they are delegated to relatively dynamic agencies with a great deal of specialized expertise. And this fact has deep constitutional implications.

Consider, for example, President Obama’s Clean Power Plan -- easily one of his administration’s most controversial exercises of executive power. The Obama administration promulgated this plan pursuant to a provision of the Clean Air Act, which requires the EPA Administrator to determine “the best system of emission reduction” available to certain sources of air pollution given existing technology and its costs. EPA uses this determination to set emission reduction targets.

Congress reasonably could have concluded that such a system of emissions reduction could not be achieved by legislators alone. Rather, the kind of persistent monitoring of environmental technologies and the economics of the energy industry that is required by the Clean Air Act could only be conducted by an expert agency.

The Clean Air Act’s delegation of power to the executive, in other words, is a classic exercise of Congress’ Necessary and Proper power. As Justice Antonin Scalia once wrote about this power, “where Congress has the authority to enact a regulation of interstate commerce, ‘it possesses every power needed to make that regulation effective.’”

Likewise, a future Congress may someday decide to codify something very similar to Michaels’ administrative separation of powers. Michaels makes a strong case that this would be a desirable outcome.

But it is not an outcome that is required by the Constitution.

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Abbe R. Gluck

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Zachary Price

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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.