But as Jon D. Michaels shows, separating the state from its public servants, practices, and institutions does violence to our Constitution, and threatens the health and stability of the Republic. Constitutional Coup puts forward a legal theory that explains the modern welfare state as a worthy successor to the framers’ three-branch government.
What legitimates the welfare state is its recommitment to a rivalrous system of separation of powers, in which political agency heads, career civil servants, and the public writ large reprise and restage the same battles long fought among Congress, the president, and the courts. Privatization now proclaims itself as another worthy successor, this time to an administrative state that Americans have grown weary of. Yet it is a constitutional usurper. Privatization dismantles those commitments to separating and checking state power by sidelining rivalrous civil servants and public participants.
Constitutional Coup cements the constitutionality of the administrative state, recognizing civil servants and public participants as necessaryrather than disposablecomponents. Casting privatization as an existential constitutional threat, it underscores how the fusion of politics and profits commercializes governmentand consolidates state power in ways both the framers and administrative lawyers endeavored to disaggregate. It urgesand sketches the outlines ofa twenty-first-century bureaucratic renaissance.
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Table of Contents
Part I Pax Administrative's Rise: Modern Public Administration and the Administrative Separation of Powers 21
1 Historic Privatization and the Premodern Administrative State 23
2 The Rise and Reign of Pax Administrativa 39
3 The Constitutional and Normative Underpinnings of the Twentieth-Century Administrative State 51
Part II The Privatization Revolution: Privatization, Businesslike Government, and the Collapsing of the Administrative Separation of Powers 79
4 The Beginning of the End: Disenchantment with Pax Administrativa and the Pivot to Privatization 82
5 The Mainstreaming of Privatization: An Agenda for All Seasons and AH Responsibilities 99
6 Privatization as a Constitutional-and Constitutionally Fraught-Project 119
Part III Establishing a Second Pax Administrativa 143
7 The Separations of Powers in the Twenty-First Century 145
8 Recalibrating the Relationship between and among the Constitutional and Administrative Rivals 167
9 Judicial Custodialism 179
10 Legislative Custodialism 202