Constitutional Coup: Privatization's Threat to the American Republic

by Jon D. Michaels

Overview

Americans have a love-hate relationship with government. Rejecting bureaucracy—but not the goods and services the welfare state provides—Americans have demanded that government be made to run like a business. Hence today’s privatization revolution.

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 necessary—rather than disposable—components. Casting privatization as an existential constitutional threat, it underscores how the fusion of politics and profits commercializes government—and consolidates state power in ways both the framers and administrative lawyers endeavored to disaggregate. It urges—and sketches the outlines of—a twenty-first-century bureaucratic renaissance.

Product Details

ISBN-13:	9780674737730
Publisher:	Harvard University Press
Publication date:	10/23/2017
Edition description:	New Edition
Pages:	320
Product dimensions:	6.20(w) x 9.40(h) x 1.20(d)

About the Author

Jon D. Michaels is Professor of Law at the UCLA School of Law.

Table of Contents

Introduction 1

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

Epilogue 231

Notes 235

Acknowledgments 299

Index 301

Editorial Reviews

I encourage anyone interested in the administrative state, separation of powers, or privatization to read this book.

Sasha Volokh

A truly fundamental contribution to constitutional thought, especially important at a moment when the Trump presidency is escalating the privatization of American government.

Bruce Ackerman

Michaels’s book is not so much a celebration of the administrative state as it is an impassioned defense of administration as a central pillar of our modern constitutional structure that is increasingly under threat. For Michaels, the administrative state is not the bogeyman of ‘big government’; nor is it the specter of inefficiency and gridlock that privatization’s proponents make it out to be. Rather, it is the modern instantiation of the central principles of our constitutional order…Michaels rightly argues that dismantling the administrative state risks creating more aggrandized and unchecked executive power, not less…Michaels’s work is admirably expansive, resting on a deep conceptual core that generates a number of implications for debates in legal scholarship and for incredibly timely legal and policy questions about the future of administrative governance in an era marked by the puzzling combination of deregulation and expansive executive overreach.

Harvard Law Review - K. Sabeel Rahman

Constitutional Coup offers a learned, lucid, and important argument about the relationship between privatization, constitutional structure, and public values. Defenders and critics of the contemporary administrative state alike will profit from engaging with Michaels’s innovative work.

Jeffrey A. Pojanowski

Jon Michaels has identified a key aspect of the modern state, its increasing delegation to private businesses of fundamental tasks historically associated with governance. What is fresh and compelling about his book is his elaboration of the truly constitutional dimensions of these developments.

Sanford Levinson

In his book, Constitutional Coup, [Michaels] argues that our professional bureaucracies are essential to America’s democracy… The true strength of Michaels’s book is reminding us why we have administrative government in the first place… Michaels provides a useful reframing of what business-like government really means.

Washington Monthly - Joshua Alvarez