Academic journal article Michigan Law Review

Reconstructing an Administrative Republic

Academic journal article Michigan Law Review

Reconstructing an Administrative Republic

Article excerpt

RECONSTRUCTING AN ADMINISTRATIVE REPUBLIC

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. Michaels4 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.

I. 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. …

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