//  1/12/18  //  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. 

By Kate Shaw | Associate Professor at Cardozo Law 

It’s hardly a novel observation that we’re living in a moment of unprecedented attacks on the administrative state. But Jon Michaels’s terrific new book—which should be required reading for students of both constitutional and administrative law—is packed with genuinely novel insights. Michaels sketches an elegant defense of the constitutionality of our current administrative state, based in part on that state’s internal replication of key constitutional separation-of-powers principles, and identifies unprecedented waves of privatization as an existential threat to that order.

Michaels’s view of privatization is a capacious one, encompassing not only the replacement of government workers with private-sector contractors, but reaching much further, to include the transformation of government employment norms to more closely mirror at-will employment in the private sector, as well as “countless more creative and legally vexing combinations of sovereign and commercial power.” But despite this breadth, there are a few strains of privatization or outsourcing that Michaels doesn’t address, and I want to focus on two in this short contribution: first, ideological outsourcing; and second, privatization by state governments.  

To begin with the first, one form of outsourcing Michaels doesn’t take up in his book—and one I thought of repeatedly as I read it—is what I’ll call ideological outsourcing: essentially the outsourcing of government functions to ideological entities. This phenomenon no doubt differs in key respects from the sorts of outsourcing that are Michaels’s primary focus, most fundamentally because the non-governmental entities involved in ideological outsourcing are typically not driven by the sort of profit motive that animates corporate entities. But the existence and growth of this additional strain of outsourcing serves as an important proof of concept when it comes to the logic of growth Michaels identifies. That is, Michaels argues that the longer privatization is allowed to endure without significant pushback, the harder it will be to reverse course, in both political and constitutional terms. I think this is true, and that in addition, the more fully the embedded logic of privatization takes hold, the more likely it is that new spheres will open up to privatization, leading to the further hollowing out of government.

One prominent example of the sort of ideological outsourcing I have in mind appears in the context of the legal regulation of reproductive rights. In this sphere, an entity that has played an increasingly central role in recent years is the organization Americans United for Life, or AUL. AUL was founded in 1971, during the pre-Roe wave of state abortion legalization measures, and its main early interventions came in the form of amicus briefs before the Supreme Court and lower federal courts. But AUL gradually expanded the scope of its activities, which now include the annual publication of the text “Defending Life,” which AUL describes as a “playbook” that both grades states on their pro-life laws and provides model legislation that has been widely adopted by state legislators. AUL reports that since 2011, at least 93 states have adopted what it terms “life-affirming” laws based in whole or part on AUL model legislation or with “other sorts of assistance” from AUL. (Cary Franklin has a great discussion of AUL’s involvement in Texas’s recent abortion battles in her chapter in the forthcoming volume Reproductive Rights and Justice Stories (Murray, Shaw, & Siegel, forthcoming 2019)). In its focus on out-of-the-box model legislation, as well as in other respects, AUL resembles the American Legislative Exchange Council, or ALEC, a business friendly, socially conservative (though non-partisan) organization that also offers model legislation many states have enacted. Both entities not only provide government actors with model legislation and regulations, but also offer a range of other sorts of assistance to both legislators and administrators. And the drafting of legislation and regulations are about as fundamental as acts of governance get.

AUL’s primary sphere of influence is the states, and privatization in the states is another arena Michaels doesn’t focus on, but where his insights are highly relevant. This isn’t a criticism: Michaels’s constitutional analysis isn’t directly applicable to the states, which are under no obligation to abide by federal separation-of-powers principles (though the federal constitutional arguably presumes some structural features of state government that replicate those of the federal system). Still, while they’re under no explicit obligation to do so, most states have mirrored the federal system’s separated powers; indeed, many states, unlike the federal system, have explicitly enshrined the principle of the separation of powers in their own constitutions. And the waves of privatization Michaels identifies have if anything landed in the states with even more force than the federal system, opening space for private entities like AUL to serve core government functions with minimal involvement by government officials. Although data on state administrators is quite limited, one survey of state administrators indicates that such administrators report more regular contacts with “clientele groups” than either legislative or gubernatorial staffs. And Miriam Seifter’s excellent new article “Gubernatorial Administration” deals briefly with privatization in the states, primarily to highlight that one consequence of that sort of privatization is to further empower state chief executives, a dynamic Michaels also identifies in the federal system. But discussions of privatization in the states remain quite limited in the context of legal scholarship, and it’s an area that would benefit from additional attention—especially in this deregulatory moment at the federal level, as attention and resources shift to the states.

As Michaels explains, most privatization involves something of a sleight-of-hand: elected officials purport to be reducing the size and scope of government, but do so in a way that involves the continued provision of the same core services by private entities. The relationship between state governments and ideological entities like AUL in some ways flips this narrative on its head—giving the appearance of government performing paradigmatic government functions, like the drafting of legislation and regulations, but with a private entity doing much of the legwork. Still, though the specifics are quite different, the same deficits in transparency and democratic accountability that characterize an increasingly privatized federal government are present in the context of these relationships in the states.

Once again, this activity is in many ways distinct from the bulk of the outsourcing with which Michaels is concerned. Government has always worked closely with outside entities to shape legislation and administrative policy—that’s simple interest group politics. Moreover, a key component of Michael’s descriptive account of the current degree of privatization in the federal administrative state is its purported lack of ideological valence, and entities like AUL are expressly ideological in their orientation.

Still, it’s worth thinking about entities like AUL, and the states in general, as we consider the implications of privatization on our political and constitutional order. This is because once we’ve changed norms and expectations around what government properly does—and perhaps when its capacity contracts or even atrophies—it’s impossible to know what could step into the breach. 

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.

The Federal Judiciary Needs More Former Public Defenders

8/3/20  //  Commentary

By Orion de Nevers: The composition of President Trump’s record-setting number of judicial appointments has been widely criticized for its overwhelmingly white-male skew. But another, quieter, source of troubling homogeneity has also emerged: President Trump is loading the bench with former prosecutors.

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