RECONSTRUCTING AN ADMINISTRATIVE REPUBLIC.

• Author: Pojanowski, Jeffrey A.
• Position: Book review

CONSTITUTIONAL COUP: PRIVATIZATION'S THREAT TO THE AMERICAN REPUBLIC. By Jon D. Michaels. Cambridge and London: Harvard University Press. 2017. Pp. viii, 232. $35.

INTRODUCTION

Something is rotten in the state of administrative law. This sentiment is not uncommon in contemporary scholarship, though it usually arises from the political or jurisprudential right. Administrative law is "unlawful"; (1) the rise of the administrative state proliferates "quasi-law" and undermines our polity's constitutional morality; (2) and "bureaucracy in America" betrays our Republic's central governing principles. (3) More broadly, scholars express a looming sense of ill ease with the current dispensation, marked by a lamentation for what has been lost and a call for its restoration.

With the publication of Constitutional Coup: Privatization's Threat to the American Republic, we can add Professor Jon D. Michaels (4) to the litany of the discontented, but with a twist. Michaels is not a libertarian seeking to roll back the administrative state, an avid federalist hoping to devolve governing function to states and local communities, or an originalist aspiring to restore the premodern constitutional regime. Yet he too seeks to undo a betrayal of our constitutional order. For Michaels, the lost regime is what he calls the pax administrativa, an era in which governing arrangements reconciled the administrative state with our core constitutional commitments to checks and balances and separation of powers (pp. 15-16). The usurper here is pervasive privatization within the administrative state. (5)

Michaels argues that privatization--whether through contracting out key government functions or "marketizing" the bureaucracy--upsets this delicate balance and is constitutionally illegitimate (pp. 54-57,135). Today's junta is not dressed in military fatigues and does not tote guns but rather arrives in a three-piece suit armed with a PowerPoint plan to run the government like a business. Constitutional Coup identifies the rise of the pax administrativa, diagnoses its downfall, and offers a plan to restore the constitutional order we lost.

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. This eview will introduce readers to his argument and then will raise two kinds of questions about it. First, will Michaels's method of constitutional interpretation and doctrinal analysis accelerate the trend toward privatization and consolidation of power in agency heads, the very evils he seeks to avoid? Second, is Michaels's version of separated powers within the administrative state a worthy successor to the original, and more formal, three-branch version?

Neither set of questions admits of easy answers, and even those who disagree with Michaels's conclusions should readily accede that he clarifies and enriches our understanding of the normative choices and dilemmas the modern administrative state raises. Constitutional formalists, progressives, and libertarians alike should fear undifferentiated massing of power in the executive branch, a consolidation enabled by a force-multiplying phalanx of federal contractors. For those convinced of the gravity of this situation, the question remains how to address it, and Michaels offers a powerful opening shot.

1. RESTORING THE PAX ADMINISTRATIVA

   Constitutional Coup proceeds in three steps. First, it catalogues the rise of the administrative state in America and identifies a period of time in which this regime was congruent with our country's constitutional commitments (pp. 21-77). Nothing gold can last, however, and this pax administrativa was not long for this world. In the second part of the book, Michaels traces its downfall and the concomitant rise of privatization in the administrative state (pp. 79-141). In the last part of the book, Michaels offers a suite of doctrinal and legislative proposals to restore the administrative republic vanquished by privatization (pp. 143-230).

   The first part of Constitutional Coup lays down the book's historical foundation and erects its evaluative framework. Building on a rich literature on privatization, to which he is an important contributor, (6) Michaels presents a brisk overview of the role that private actors played in the federal government before the rise of the modern administrative state (pp. 24-27). Michaels offers this parade of privateers, tax ferrets, and Pinkertons not as precedent to justify contemporary privatization but rather to consign the lot to a prehistory in which the federal government was small, unprofessional, and not particularly public spirited (pp. 27-31).

   This passel of private operators grew obsolete, Michaels argues, with the rising demand in the twentieth century for "big, good, and distinctive government" at the federal level (pp. 31-33). By the middle of the century, the federal government boasted a "public workforce largely purged of its original sins of partisanship, privatization, and profit-seeking" (p. 33) and stood ready to tackle the many social and economic problems Americans wanted their federal government to solve. (7) The expanding federal government and the administrative state necessary to accomplish its tasks admittedly represented an "abrupt break" (p. 39) from the earlier constitutional regime and "was revolutionary in all respects" (p. 41). But Michaels is quick to insist this expansion was not, in fact, a coup.

   Rather, he contends that the administrative state settled into an equilibrium that adapted America's core constitutional principles and extended them to modern governance (p. 40). The critical new pillars of this new regime were (i) the Pendleton Act, which created a professionalized, tenure-protected bureaucracy staffed based on merit, not connections, and (ii) the 1946 Administrative Procedure Act (APA), which "rationalized and standardized" agency rulemaking and adjudication (pp. 46, 70-72). These two features, Michaels argues, are central to an "[administrative [separation of [p]owers" that works a "[constitutional [redemption" of the modern administrative era (p. 57).

   Michaels offers a reconstruction in which separation-of-powers principles deep within our constitutional DNA reexpress themselves in the apparatus of the administrative state. (8) Agency leaders who answer to the president are--literally--the administrative standard-bearers for the head of the executive branch. (9) Standing in for the judicial branch, in an admittedly more metaphorical fashion, are civil servants who enjoy tenured employment and are insulated from politics as they go about their reasoned, steady application of expertise to their legal mandate (pp. 66-67). Finally, civil society, empowered through the APA's notice-and-comment rulemaking proceedings, plays the role of Congress, as its input helps shape the rules forged in the interaction between presidential appointees and civil servants (pp. 62, 68). The APA's promotion of civil society through legislative rulemaking and the Pendleton Act's promotion of the civil service would combine as counterweights to the agency leaders whose authority derives from the President.

   While conceding that his analogies are imperfect, Michaels identifies a "system of administrative powers to ... channel and roughly reproduce the constitutional rivalries" (p. 65) between the branches of government in our Constitution, (10) each reproducing the parallel tendencies toward executive "efficiency, technocratic expertise, or civic republicanism" (p. 74). Rather than enabling the tyrannical, regulatory steamrolling that haunts the fever dreams of the administrative state's critics, this new separation of powers accommodates and balances plural interests and impulses (pp. 74-76).

   Under this approach of "separation of powers all the way forward," (11) our constitutional order is not dead; it just has developed in a fashion that is congruent with its original form but also is stronger, suppler, and thus better adapted to the demands of modern governance. Ernst Haeckel's theories of organism development may be on the outs in biology, but here in the ecosystem of administrative law, constitutional ontogeny recapitulates phylogeny.

   But the pax administrativa was not fated to last. By Michaels's account, that era ranged roughly from the passage of the APA in 1946 until the widespread loss of trust in government in the late 1970s. (12) Michaels argues that "the marriage of the American people to big government foundered" after Vietnam, stagflation, public frustration with government inefficiency, and the advocacy work of big business and law-and-economics scholars (pp. 85-91). But this disenchantment did not lead to the reduction in federal government the Reagan Revolutionaries desired (p. 97). It turns out the American people liked government programs, even if they did not like the bureaucrats administering them. (13)

   Enter privatization. Rather than trimming government services, successive administrations sought to trim the number of government workers providing those services--and make the remaining bureaucrats leaner and meaner. The federal footprint expanded starting with the Reagan Administration, and it grew with the Clinton Administration's movement to "reinvent government" (14) and close the books on the "era of big government," (15) even as the federal government outsourced more of its work to contractors who, the theory goes, are more responsive to market discipline. Michaels catalogues in an exhaustive, but not exhausting, fashion the number of federal tasks contracted out, including the setting of federal safety standards and the interrogation of prisoners and enemy combatants abroad (pp. 111-13). He also describes how the logic of the market crept into...