//  3/27/17  //  Quick Reactions

Just this morning, the White House announced a new Office of Innovation, one that would purportedly help government run more like a business.  By now we should be accustomed to these announcements.  Indeed, there is nothing new, or particularly partisan, about calls to run government like a business.  For decades, every White House, Republican and Democratic alike, has railed against the bureaucracy and sought to use the principles and practices of business to transform government into something leaner, sharper, and more entrepreneurial. 

I will leave it to another occasion to address the fundamental and even constitutional problems with running the government like a business.  Cabining those central concerns for now (as well as any legal concerns with the director of the new Office), here I address, simply, what’s particularly different or jarring about this President’s call.

First, this Administration has no apparent underlying respect for government, its functions, and its distinctive (and distinctively unbusinesslike) practices and principles.  From the campaign’s “drain the swamp” rhetoric, to the presidential transition team’s menacing compilation of lists of names of government officials working on climate change and women’s health and empowerment issues, to Trump-whisperer Stephen Bannon’s call to “deconstruct[]” the administrative state, this Administration hostility to government—and to such values as impartiality, expertise, and fundamental fairness that unreconstructed government embodies—is extreme if not unprecedented. 

Characterizing the new Office of Innovation as a SWAT Team certainly doesn’t help, suggesting that government is not only a problem, but also a problem on the magnitude of crazed gunmen, hostage takers, and terrorists.   

Second, this Administration has little understanding of government.  This is a President and White House team with painfully little experience or, again, regard for experience.  We see this at every turn, as the White House squanders its first 100 days embroiled in fights with the judiciary, the media, ethics officials, states, municipalities, and foreign governments, and, increasingly, with the Republicans on the Hill.  No one embodies haute (or is it nouveau?) amateurism more than Jared Kushner, tapped by his father-in-law to lead this Office of Innovation.  The 36-year-old real-estate scion has now spent just under 70 days in government, including a few momentous ones AWOL skiing in Aspen while the President’s efforts to repeal and replace the Affordable Care Act flamed out.  Kushner is also charged with engineering a stable peace in the Middle East.  Trump went so far as to say that if Kushner, who has zero diplomatic experience, couldn’t “produce peace in the Middle East, nobody can.”  So much for Malcolm Gladwell’s 10,000-hour rule.    

Third, this Administration has little understanding of business.  Yes, of course, the White House is teeming with businessmen and women, and Donald Trump and Jared Kushner were literally born into their respective family businesses.  But Trump and Kushner oversaw shadowy, nepotistic, and scandal-laden enterprises that are far from the ideal types that proponents of businesslike government usually celebrate.  Most champions of businesslike government, to their credit, are not peddling some form of crony capitalism.  They emphasize corporate accountability and stress how the disciplining forces of the market are superior to those of the polis.  Yet most of the trappings of corporate accountability—namely, those assured through independent boards, cantankerous classes of shareholders, exacting transparency regimes, and unsentimental debt and credit markets—are entirely alien to the closely held and clannish businesses that Trump and Kushner ran.    

Surely in the days and weeks that follow, we’ll get a fuller picture of what Kushner intends.  But if Kushner wants to make bureaucracy great again, he’ll be mindful of the post-World War II excellence of our highly bureaucratic (and, again, decidedly unbusinesslike) public administration; he’ll be mindful that the imperatives of business and government are vastly different; and he’ll be mindful not to further conflate the terms customers and citizens, let alone prioritize the former over the latter.       

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

How Nervous Should You Be About Election Day?

11/2/20  //  Commentary

I'm pretty nervous. But there’s also no reason to think that the rule of law has been entirely eroded in America in 2020. So far, the center has held.

How To Decide A Very Close Election For Presidential Electors: Part 3

10/28/20  //  In-Depth Analysis

We conclude our examination of close presidential elections by taking a deep dive into Florida in 2000. Was the December 12, 2000 deadline really as firm as it seemed to the courts and some of the parties, or could the count have proceeded?