//  1/10/18  //  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. 

Jon Michaels has written a thought-provoking, incisive, and timely book.  It is also a much-needed book, because it is all too rare for Americans to make an affirmative case for government qua government and for bureaucracy qua bureaucracy.  For doing those things alone, Michaels’s book would be well worth reading for students of American governance.  But Michaels’s book goes beyond making the case for government and bureaucracy to offer a trenchant and largely persuasive argument about what ails them.

In Michaels’s account, the procedures developed in the mid-twentieth century to tame the administrative behemoth (procedures typified, but not exhausted, by the 1946 Administrative Procedure Act) ushered in a golden age, a set of institutional arrangements that he refers to as the pax administrativa.  But conservative attacks on the size of government—coming to the fore with Goldwater’s campaign in 1964—convinced many that these institutional arrangements were actually pathological.  Reagan’s presidency, however, made manifest a countervailing force: it turns out that most Americans, including most Americans who voted for Reagan, really like much of what government actually does.

This put conservatives in a bind: they had been elected to end big government, and yet they would likely be punished electorally if they did away with many of the functions of big government.  Unable, then, to scale back the scope of government activity, the conservative position—one that became bipartisan as Bill Clinton’s presidency cemented the late-twentieth-century conservative ascendance—shifted to privatizing those government functions.  (In this regard, Michaels is making a point akin to that made by Suzanne Mettler in her excellent book The Submerged State.)

Michaels understands “privatization” broadly, as encompassing both outsourcing of government functions to private actors and importing market principles (especially at-will employment) into the remaining bureaucracy.  The most significant insight of the book—and one that alone is worth the price of admission—is that neither type of privatization actually makes government smaller, and most likely neither type makes it less expensive, either.  Instead, what privatization does is shift the balance of power within the administrative state.

For Michaels, the characteristic feature of the pax administrativa is its internal balance.  The administrative state, on his presentation, is divided into three rivalrous elements: “presidentially appointed agency heads who direct the administrative agenda, politically insulated civil servants who carry out most of the agency’s day-to-day responsibilities, and the general public authorized and empowered to participate broadly and meaningfully in the development and implementation of agency policy and programs” (p. 59).  Each of these groups, on his view, stands in for one of the three power centers in our written Constitution—agency heads represent the executive; civil servants represent the judiciary; and mechanisms of public participation stand in for Congress.  (I will note in passing that I find the notion of internal balance between three rivalrous and differently constituted elements far more compelling than I find the purported isomorphism between those elements and the constitutional branches.)

Just as the clashing legitimacy claims and policy priorities of the three constitutional branches makes possible a balanced interbranch separation of powers (a central theme of my own recent book, as well), so too on Michaels’s reading do the clashing claims and priorities of the three elements of the administrative state make possible the balanced administrative separation of powers upon which the pax administrativa relies.

And this is the balance that privatization threatens.  When an agency outsources work to private firms, those firms have an incentive to please the agency leadership, so as to keep the contract work coming.  Tenured civil servants have no such incentive.  Moreover, outsourced work is often far less subject to various forms of public participation than work done by bureaucrats.  Outsourcing thus shifts power toward agency leadership and away from its two rivals.  The same goes for marketizing the bureaucracy itself: insofar as tenure protections are weakened, civil servants’ jobs increasingly rely, not on their own independent judgment, but rather on their ability to please agency leadership.

By looking inside the administrative state and focusing on the politics between and among its heterogeneous elements, Michaels has laid bare the true effects of privatization: not shrinking government or lowering its costs, but shifting governmental power toward the president. This is a vitally important observation.

One hopes this observation itself, coupled with the increased rate of privatization under the deeply unpopular Trump administration, might have the effect of beginning to turn the intellectual tide against privatization and back in favor of the bureaucratic professionalism that Michaels celebrates.  After all, Michaels is persuasive in showing that it was a shift in political attitudes in the second half of the twentieth century that led to today’s privatization revolution.  If the intellectual pendulum can swing one way, it can generally swing back.

In the book’s final chapter, Michaels offers a catalogue of the sorts of legislative reforms that might result from such an intellectual course correction.  These range from bringing outsourced jobs back in house, to reinstating civil service protections for federal employees from whom they’ve been stripped, to measures aimed at recruiting and retaining talented civil servants, to using new technologies to facilitate public participation in administrative governance.  Some of these proposals seem to me like great ideas (reversing outsourcing and reinstating civil service protections, for instance); others strike me as more dubious (relaxing restrictions against agency propaganda, for example).  But most importantly, they are asking the right question: assuming efforts like Michaels’s can create the sort of sea change in American political beliefs that would result in the election of a coalition determined to roll back privatization and lead us into a pax administrativa nova, what sorts of reforms should that coalition enact?

But Michaels isn’t content to put forward arguments with the hopes of winning the eventual politics.  Instead, he holds out that great, hollow hope: that somehow the judiciary will be in the vanguard on this issue.  His penultimate chapter is devoted to convincing courts to develop a jurisprudence of administrative constitutionalism—that is, a “willingness to regularly invalidate agency actions that reflect something short of a well-functioning administrative separation of powers” (p. 179).  For Michaels, this is the easy lift: “[b]y intuition, disposition, and practice, courts are already inclined to act in ways that promote a well-functioning administrative separation of powers” (p. 202).

This is not a description of courts that I recognize.  For one thing, judges tend to be pretty bad at understanding the internal mechanics of non-judicial institutions.  Not infrequently, they look at other institutions’ procedures as degraded, in contrast to the self-perceived purity of judicial procedure (a point that I’ve made in the election-law context in Part I of this piece).  To the extent, then, that Michaels is encouraging the judiciary to get more involved in the internal workings of the administrative state, it is not at all clear that judges have the institutional wherewithal to do so in pursuit of the goals Michaels sets out for them.

Second, this institutional incapacity is backed up by institutional disinclination.  The Reagan coalition that gave such impetus to the privatization revolution still largely runs our federal judiciary, thanks to the Constitution’s provision of good-behavior tenure for judges.  This has given rise to what Adrian Vermeule and Cass Sunstein have termed “libertarian administrative law”—that is, administrative law doctrines and applications that are decidedly hostile to the administrative state.  (The increasing use of the “major questions doctrine” is just one example.)  And of course the Supreme Court’s newest member is deeply skeptical of the administrative state.

A jurisprudence that told courts to get even more deeply involved in administrative procedure, then, would run up against courts that are neither particularly capable nor particularly willing to do the job in the way that Michaels wants them to.  In the current judicial climate, it would be likely to lead to significantly less freedom of action by administrative agencies and an even heavier thumb on the scale for deregulatory or nonregulatory outcomes.

Of course, the ideological bent of the courts might change—perhaps, then, Michaels is speaking to future judges appointed by a different political coalition.  But a political coalition inclined to reinvigorate administrative governance along Michaelsian lines would be able to do so legislatively long before it would have the opportunity to replace enough judges in order to do so judicially.

Michaels is absolutely right in his diagnosis of the current state of administrative governance.  And his book could well prove an important step towards fixing it—it has already received positive notice in the political press, and one could well imagine it influencing progressive politicians’ views of the administrative state going forward.  But if that fix comes, it is far more likely to be primarily via those politicians than by the judges they appoint.

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.