//  1/8/18  //  Commentary

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. 

For some time, I’ve been developing a theory of the American administrative state, one that stands up bothto the attacks of old-school constitutional conservatives like Clarence Thomas, who question the legitimacy of administrative governance writ large, and to those mounted by neoliberals—progressive Democrats and centrist Republicans alike—who accept and even embrace an activist State butwant to run it like a business.

Central to this theory is a recognition of the administrative separation of powers. Since the 1940s, administrative power has been triangulated among

  • presidentially appointed agency leaders;
  • independent, nonpartisan, and effectively tenured civil servants; and
  • the public writ large authorized to participate broadly and meaningfully in most facets of administrative governance.

This system of intra-administrative checks and balances redeems and refashions the Framers’ original, inter-branch separation of powers in an era (quite unlike the Founding) when Congress delegates so much federal power to the manifold regulatory and welfare agencies ringing the National Mall.   

The existence of an administrative separation of powers, I argue, puts to rest many of the conservative concerns about tyrannical, concentrated regulatory power, singlehandedly wielded (so the fear goes) either by an imperial president or unelected bureaucratic mandarins.

What’s more—and of far greater significance today—the administrative separation of powers puts into relief the constitutional calamity that is the contemporary movement to run government like a business.

Constitutional Coup: Privatization’s Threat to the American Republic explains what businesslike government looks like; how businesslike government bypasses or commercializes the federal bureaucracy; how businesslike government is about political power, not economic efficiency; and how the various privatization initiatives of the late twentieth and early twenty-first centuries weaken the administrative separation of powers—and thus endanger the constitutional project of administrative governance.

Among other things, the commingling of commercial and political power has the effect of sidelining or defanging otherwise independent, expert civil servants and marginalizing an otherwise empowered, diverse civil society.  As a result, sovereign power is concentrated in the hands of presidentially appointed agency heads and the private actors paid to do their bidding.  The end result is not a smarter, more technocratically proficient State, as privatization’s proponents like to say.  Rather businesslike government produces a dangerously potent and potentially quite abusive State, led by a largely unchecked president capable of wielding concentrated power in a hyperpartisan, capricious, or crassly commercialized fashion.

I 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.  I thought a President Hillary Clinton, like her predecessors (Democrat and Republican alike) would continue to advance the businesslike government agenda—and, moreover, that few progressives would care.  For many in the progressive camp, having Barack Obama or Hillary Clinton preside over the administrative state as an all-powerful CEO seems like an okay deal, especially so long as Congress continues to act petty and dysfunctional.  (Legal scholars and other SCOTUS watchers may recall then-Professor Elena Kagan’s seminal article on Presidential Administration, touting the benefits of presidential control of the administrative state under Bill Clinton, perhaps the person most responsible for mainstreaming businesslike government, stripping it of the ideological sharpness it acquired as part of the “Reagan Revolution” and repackaging it as “smarter government.”)

Enter Donald J. Trump.  His cartoonishly corrupt fusion of business and political interests, his savage attacks on the nation’s leading federal bureaucrats, his stoking fears of a disloyal Deep State, and his disdain for science, ethics, transparency, and the rule of law help, I think, make clear the very real and immediate dangers of a businesslike government movement that concentrates and aggrandizes presidential power.

The book really isn’t about Trump, hence the title of this post.  It is a sweeping, often historical account of constitutional and administrative inflection points from 1787 onward.  Yet Trump, true to form, muscles his way into the story—understandably, given that he poses the greatest, gravest threat to the administrative state (and, with it, the constitutional order).

Perhaps surprisingly, Trump also poses the greatest opportunity for a bureaucratic renaissance.  Today, many are acquiring a new or better appreciation for the role played by civil servants and members of civil society (be they community activists, journalists, or public-interest lawyers)—and are recognizing that those essential stakeholders are often the last line of defense against an abusive, capricious, and reckless president.

Indeed, in the aftermath of the Trump presidency, the stage may well be set for such a bureaucratic renaissance.  This book furnishes the constitutional case for an independent, professional bureaucracy and proffers a series of judicial, legislative, and civic reforms we can undertake (and can start planning for now) to re-establish and strengthen the administrative separation of powers. 

I am, of course, deeply grateful to Joshua Matz and humbled by his and the commentators’ generosity in grappling with my book and its implications.  I will return at the end of the symposium to respond to the essays and tie together any loose threads.  In the meantime, for those interested, the full Introduction to Constitutional Coup can be accessed for free here.  (A shorter excerpt, which captures the rise of the privatized, businesslike state, was recently published in the Guardian and can be accessed here.) 

Thanks for reading!

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.