Afterward to the Constitutional Coup Symposium (Part II), by Jon D. Michaels
Aaron Nielson is always among the most cheerful and helpful of critics. In his review (“Pretend Privatization”), Aaron focuses on what he calls pretend privatization, which he defines in terms of “situations in which the government tries to avoid being labeled as the government, even though it still wants to exercise the powers of the government.”
This is an intriguing and useful definition—and Aaron adds flesh to this definition by proffering the tantalizing example of Amtrak. I’ll resist the temptation to go down the Amtrak rabbit hole here if only because the government tries to avoid being labeled the government for so many reasons and in so many different ways that I worry about treating the odd duck that is Amtrak as a paradigm case.
Consider some routine privatization cases. In such cases, agency officials regularly hire contractors to avoid being labeled as “the government” when it comes to (1) respecting the civil service laws; (2) abiding by the rules and regulations that government employees (or other State actors) must follow but private ones need not; and (3) reporting the numbers of its workers involved in a given task. This last evasion is particularly salient in the context of military deployments, where the use of contractors lowers the official number of U.S. troops needed and, perhaps even more importantly, lowers the official casualty count.
All of those workarounds are, to me, just as damning as taking the corporate form to, say, avoid the strictures of the First Amendment, as was the issue in the Lebron case involving Amtrak.
So, I certainly agree with Aaron on the question of pretend privatization. But I think we disagree when it comes to scale and scope. What Aaron sees and calls pretend privatization is, to me, regular, routine, and pervasive privatization (otherwise known as general outsourcing), a good deal of which turns on government officials’ real or potential exploitation of important legal-status differentials between State and private actors or institutions.
Further, what Aaron frames as real privatization strikes me as simply deregulation. After all, Aaron defines real privatization as efforts to leave certain issues or matters to the private sector. As was the case with Jeff, I suspect Aaron is right in guessing we likely disagree on how big the government’s footprint should be. But that’s a separate question from how should the “government” be constituted when it is indeed exercising the powers (and claiming the privileges) of the State. Big or small in size and scope, the government should abide by public norms and public laws when doing so. Perhaps, then, the notoriously “anti-administrativist” Aaron and I agree in more ways than he guesses!
Miriam Seifter’s incisive essay (“The State(s) of Civil Society Oversight”) invites me to think more carefully about state governments—and the role “civil society” plays at the state level of government.
Miriam, as I hope most already know, is doing some of the most interesting work on state administrative law today. Needless to say, I will tread lightly.
Miriam reminds us that state government may not actually be “closer” to the people in any meaningful sense of the word. Among other things, both the general public and the media pay far less attention to what happens in state capitals. As a result, we are likely to see a particularly poor showing from civil society when it comes to state-level participation in administrative governance.
This insight raises any number of questions and may, as Miriam suggests, affect one’s preference for local as opposed to federal regulation. For my part, the most interesting question is whether states are a problematic locus of regulation because (1) civil society is uniquely lackluster (and thus any semblance of an administrative separation of powers is likely to be way out of balance because of civil society’s especially poor showing); or because (2) civil society and the state bureaucracy and the state agency heads are all comparatively weaker than their federal counterparts—and thus we have an across-the-board junior varsity version of administrative governance. (Note that the state agency heads may be weaker than their federal counterparts for a couple of reasons. First, the weakness may be a straightforward assessment of relative talent; just as bureaucratic talent gravitates to federal employment so does administrative leadership. And, second, even if there is no shortage of talent, the plural nature of many states’ executive branches may have the effect of weakening those offices.)
I don’t know the answer to this question in part because, like the general public and the media, I too am guilty of having Beltway blinders. But anyone who endeavors to scale down (or up) the federal administrative separation of powers may want to figure out whether an administrative separation of powers can function well at that level, or whether one particular rival—that is, civil society or bureaucracy or agency heads—is (for whatever reason) unlikely to be able to compete with its peers. Indeed, we can envision any number of contexts where the administrative bully in a given jurisdiction happens to be a hyper-potent mandarin bureaucracy and not an imperial executive, such as the one that tends to dominate in the federal administrative domain.
Emily Bremer’s generous and complimentary essay (“Deliberate and Serendipitous Separation of Powers in the Administrative State”) chides me for not doing more with adjudication.
Guilty as charged! I suppose the most global, if somewhat stylized, response to Emily is that I don’t conceive of the act of adjudicating at the constitutional level as an integrative process, subject to intense checking and balancing. Sure, there are questions and matters that involve interbranch and cross-branch engagement—e.g., appointments, confirmation, and jurisdiction. But adjudication decisions themselves are reserved to judges, and efforts are taken to ensure no political meddling. We don’t see such siloing when it comes to lawmaking. Lawmaking at the constitutional level requires legislative initiation, presidential support—both in terms of ex ante presentment and ex post enforcement—and judicial sanction (assuming, as is often the case, legal challenges arise).
Thus, when we drop “down” as it were to the administrative plane of governance, it is my sense that administrative lawmaking requires greater checking and balancing than does administrative adjudicating.
Emily’s essay also queries the vesting of administrative adjudicatory authority in agency heads. Perhaps not surprisingly, this assignment strikes me as problematic and, per Emily’s suggestion, to the extent this assignment has fallen out of favor, it may well be for the better. This is, again, primarily because of the (appropriately) political nature of agency heads.
Lastly, Emily raises questions pertaining to privatized adjudication. Here too I’m guessing my reaction is a predictable one. I’d be worried, per the focus of my book, that compliant contractors hired to adjudicate would basically follow the cues, if not express directives, of the agency heads; alternatively, assuming contractors aren’t yes men or women, the concern would of course be the traditional concern with contractors—namely, that these private actors would go off on frolics and detours. Either scenario is, of course, distressing.
Last but not least, Jennifer Mascott (“The Alternative Separation of Powers”) offers what perhaps is best characterized as an originalist critique of my project.
Again, I’m not an originalist. In fact, a good part of Chapter 1 of the book explains why pervasive reliance on privatized government during the antebellum period ought to do little to justify privatized government today. If anything, that early history should show us how far we’ve come—and why we shouldn’t turn back. As I argue, back then, private enterprise wasn’t nearly as private as it is today (that is, singularly driven by the imperative to maximize profits). And, just as importantly, public governance then wasn’t very public, at least by today’s lights. Holding government officials politically accountable was reserved for the privileged, enfranchised class—and holding government officials legally accountable was, for everyone, a tenuous proposition to say the least. In short, the choice between public and private providers back in the day wasn’t a very consequential decision. But it is now, given how far the public and private sectors have diverged from one another.
Given our different methodological commitments, it isn’t surprising that Jenn and I conceive of political accountability very differently. As I understand Jenn, that accountability is fully vested in a president, over whom the electorate has “voting power.” What’s more, there isn’t much political accountability when it comes to many—perhaps most—contemporary agency decisions. Jenn’s point is fair; political accountability over the sprawling administrative state is indeed diffuse. But I wonder if her point proves too much. Political accountability over a president fully in charge of a vast administrative state can be rather attenuated, too. At most, we vote for her twice, and only once after she enters office. When that election comes around, how many of us are voting for or against the incumbent based on her administration’s “policy statement, interpretive rule, substantive rule exempt from notice-and-comment…”? If I’m right to be skeptical of a president’s political accountability vis-à-vis a sprawling, but unitary, administrative state, then I’m not sure why unitary executive control is necessarily accountability enhancing—especially when compared against an administrative separation of powers scheme that provides any number of opportunities for public input and institutional checking and balancing vis-à-vis practically each and every administrative policy and program.
More importantly, I read Jenn as seemingly more concerned about there being too much bureaucratic power than there being too little democratic power. She asks: “What power structure remains to keep the insulated civil service itself accountable?” But she surely knows the answer to that question: it the prized and presidentially appointed agency heads who, absent gross incompetence or absenteeism, still (help) run the show.
Last, Jenn posits that the reason the civil service has fallen out of favor is “the increasingly expansive tenure protections” themselves. If true, this would be a bitter irony indeed—bureaucrats hoisted on their own petards. Certainly, there are influential and seemingly expanding cohorts who find the civil servants anathema—and possibly part of, in today’s parlance, a subversive deep state. But is the answer unfettered executive control over administrative powers, powers that span the worlds of rulemaking, enforcement, and adjudication?
Assuming we’re going to have an administrative state and that such as administrative state should reflect the basic political and philosophical commitments of our constitutional republic, one ought to be just as fearful of an entirely presidentially controlled administrative state as one in which the mandarins are in charge. Fortunately, my theory calls for neither, but rather a rigorous interplay of political and apolitical officials fashioning administrative policy, just as we see play out on the constitutional stage across the three branches.
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For anyone still reading, thanks! And, of course, thanks to my brilliant and generous interlocutors from whom I think we’ve all learned a lot. I’m in your debt.
Editors Note: This is Part 2 of 2 of Jon D. Michaels Afterword on the Constitutional Coup Symposium. Part 1 was posted on April 2, 2018.
Jon D. Michaels is a Professor of Law at UCLA School of Law.
This post is part of a symposium reviewing Constitutional Coup: Privatization’s Threat to the American Republic, a new book by Jon D. Michaels, Professor of Law at UCLA School of Law. All of the posts can be read here.