Take Care is pleased to host a symposium on Constitutional Coup. In 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. 

Nearly a year into the Trump presidency, it’s easy to focus on all of the ways in which this President and his Administration are unique.  But a great deal of what currently ails our country is not new, and in his excellent new book, Jon Michaels tells a critically important story about the threat posed by privatized, commercial government—a threat that, as he explains, long predates January 20, 2017.  But even as privatization is not new, Michaels’ analysis of it—and the constitutional threat it poses—is, and that analysis provides new ways of thinking about some of the troubling events of the past year.

As Michaels explains, privatization—the “reliance on private actors to carry out public responsibilities”—became a “revolutionary sensation” at the end of the twentieth century, ultimately attracting “politicians across the political spectrum.”  Yet this privatization, he argues, “systematically undermines the administrative separation of powers and, with it, the entire constitutional foundation upon which the modern welfare state is built.”  According to Michaels, the constitutionality of the administrative state derives from the “re-creation and refashioning of the framers’ tripartite scheme”: “Like the constitutional separation of powers, the administrative separation of powers triangulates power among three sets of competing administrative actors.”  In other words, just as the Framers divided the federal government into three co-equal branches (the executive, the legislative, and the judiciary), the administrative state is divided into three analogous parts (agency leaders, civil servants, and civil society).

According to Michaels, even if privatized government might make for more efficient government (though anyone who’s tried to get customer service from a cable TV company or reimbursement from a private health insurance provider might question that premise), it is nonetheless problematic from a constitutional perspective because that privatization undermines the administrative separation of powers, strengthening agency leaders at the expense of civil servants and civil society.  While this analysis provides a powerful new way of thinking about the problems with privatization, Michaels’ discussion of how to move forward from privatization and strengthen the administrative state is especially valuable in thinking through the first year of the Trump presidency. 

In offering a path forward to strengthen our administrative state, Michaels identifies a need to protect against “strong, asymmetric interventions by constitutional actors,” that is, “constitutional actors altering the administrative balance of power.”  He posits, for example, that a president might “team[] up with her most obvious and controllable ally—namely, agency leaders—to help subordinate contentious civil servants and to limit public engagement, all in service of ensuring that the White House’s interests are prioritized, advanced expeditiously and with minimal resistance from dissenting administrative stakeholders.”  In laying out this scenario, Michaels gives us a new way of understanding why certain actions taken by the Trump Administration over the last year were problematic.

Consider, for example, Trump’s efforts to circumvent the Senate’s advice-and-consent process in naming many of the leaders of executive branch agencies.  As I wrote on this blog less than two months into the Administration, Trump at that point had largely failed to nominate people “to fill the hundreds of important agency positions that require Senate confirmation.”  Nearly a year into his presidency, the story remains essentially the same: the Washington Post and the Partnership for Public Service have been tracking “roughly 600 key executive branch nominations,” and nearly 300 of the positions tracked still lack a nominee.

Superficially, this might seem to be the opposite of the threat that Michaels warns about (even though it would still seem to be problematic under his framework): by leaving top agency positions unfilled, the President would seem to be conferring greater power on civil servants to control actions at the agency.  But there is more here than meets the eye.  As ProPublica reported back in March, “While President Trump has not moved to fill many jobs that require Senate confirmation, he has quietly installed hundreds of officials to serve as his eyes and ears at every major federal agency, from the Pentagon to the Department of Interior.”  When I wrote about this issue last year, I noted that Trump’s apparent preference for these non-confirmed employees “presents the possibility that Trump may want people in place to help shape policy at the federal agencies (as is his right), but that he may be trying to bring this about without ensuring that the Senate scrutinizes and consents to the appointment of people who are shaping that policy (which is definitely not his right).”  In other words, the problem I raised then was that Trump might be “undermin[ing] the Senate’s important role in providing advice and consent to the appointment of individuals who help lead federal agencies.”

Michaels’ analysis points to a distinct (albeit related) problem with the use of these employees—they may undermine the administrative separation of powers, potentially in more than one respect.  Perhaps most significantly, the fact that individuals who have not been subject to Senate confirmation are playing critically important roles in running federal agencies weakens civil society’s ability to be a counterbalance to these agency leaders.  After all, the Senate confirmation process provides a critical opportunity for both the public (and journalists who inform the public) to learn about the people leading the federal agencies, their values and their views, and their priorities for their agency.  When agency leaders are installed secretly and without Senate oversight, it is more difficult for this vital educational process to occur.

As Michaels discusses, we should be trying to strengthen the administrative separation of powers in order to keep the public informed about what agencies are doing.  If that is the goal, putting people in charge of federal agencies who haven’t gone through the public process of Senate confirmation is plainly a step in the wrong direction.  These non-confirmed employees may alter the balance of power in other ways, as well.  For example, if their stints at the agencies tend to be shorter, there is less opportunity for the agency’s civil servants to try to introduce them to and inculcate them in, at least to some degree, agency culture. 

This undermining of civil servants and civil society is troubling in its own right, but the dangers are even more magnified when it is coupled with an outright assault on civil servants, as is also happening at some federal agencies.  Consider, for example, the effort to undermine the Environmental Protection Agency (EPA).  As has been widely reported, the Administration has been trying to dramatically reduce the EPA’s workforce, bringing its numbers to their “lowest level since Ronald Reagan was president.”  (The EPA is hardly unique in this regard, as other agency heads are also trying to shrink the sizes of their agency staffs.)  And the EPA’s confirmed head, Scott Pruitt, purportedly only “rarely interact[s]” with career staff; instead, “[p]olicy decisions . . . are made in consultation with a coterie of political appointees and industry representatives.”  Moreover, as Michaels notes, there are reports that Pruitt has been “hiring contractors . . . to draft rules relaxing or altogether rescinding highly protective environmental regulations.”  It’s not difficult to understand why Pruitt might do this, as Michaels explains: “the Trump administration is worried that the career civil servants will contest and resist the deregulatory directives.” 

This is not the rivalrous administrative separation of powers that Michaels sets out as an ideal—it is just the opposite.  And as a result, the policies these agencies produce will not be the result of a genuine administrative separation of powers, that is, the “re-creation and refashioning of the framers’ tripartite scheme.”  Nor will they reflect, as Michaels puts it, the “harmoniz[ation of] the many different voices and values that the American political and legal community comprises.” 

As I noted at the outset, it’s easy to focus on all of the ways in which this President and his Administration are unique.  It’s also easy to focus only on the substance of the policies this Administration produces.  But it’s important to pay attention, as well, to the process by which those substantive policies are produced.  In many cases, the process may be just as troubling as the substance.

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