Notice & Comment

Anti-Privatization as a Second-Best Strategy, by Jeffrey Pojanowski

There are a number of ways to be unhappy about the federal administrative state we have today. One is straightforwardly libertarian. The administrative state allows substantial, systematic interference with private ordering in a way that Congress, acting alone could not (and should not even try). Another way to be unhappy about the federal administrative state emphasizes the word “federal.” One could believe that government should be more active than the night watchman state, and that it should pursue a conception of the common good thicker than the protection of Lockean natural rights. But the more local those interventions are, the better.

On this latter, more localist critique, we should not try to dispose of self-governance, political community, and local knowledge and variation while we pursue, say, clean water, a social safety net, or consumer protections. Centralizing responsibility for those regulatory aims in one set of federal executive hands, however, leads to a politically distant government and a regulatory monoculture that can be just as dangerous and unstable in political environments as it is in biological ecosystems. The nation’s regulatory environment radically and uniformly changes based on close, winner-take-all Presidential elections and ordinary citizens rightfully feel disempowered from having a meaningful say in government.

Both visions, it seems, would take solace in the argument that the modern administrative state is inconsistent with an originalist reading of our Constitution. They differ, of course, on what would come next in a hypothetical return to origins. After slaying that dragon, the libertarian may go on to attack state and local governmental power to limit the exercise of liberty and natural rights. The localist critic, however, could view the descent of the federal executive behemoth as an opportunity for more vigorous self-government. As chapter two of Joseph Postell’s recent book Bureaucracy in America indicates, state and local governments could be both activist and widely participatory before the rise of the federal administrative power.

Now, no critic who thinks the federal administrative state is too powerful would look to Jon Michaels’s Constitutional Coup—an elegant, unabashed defense of federal administrative governance—as a model for reform. And, as I argue in my longer review of the book, most originalists will not be satisfied with Michaels’s constitutional method. But that does not mean that administrative discontents should ignore Michaels’s prescriptions.

Or at least non-libertarian critics of the administrative state could look to Michaels’s ideas as a potential second-best strategy for limiting federal power. Michaels is likely right that Americans are unwilling to give up the benefits offered by our centralized federal government: for better or worse, the Republic’s constitution—in the classical sense of disposition or inclination—has largely departed from a Tocquevillian faith that social problems are best tended to at the direction of civil society or local or state government. For that reason, Congress is unlikely to dismantle the present dispensation, and today’s polity would probably view radical judicial surgery on the administrative state as constitutional malpractice.

Those in the resistance therefore might consider pursuing some of Michaels’s policies against privatization even if, or especially if, the results are less efficient. If, for now, we must have a powerful, centralized administrative state, we could at least make it slow and internally conflicted through the more robust internal separation of powers Michaels advocates (and as Chris Walker details here). The days of horse-and-buggy federal government are gone, but at least Michaels wants to run the new juggernaut with an old transmission. As policy aspirations stall in the more intricate administrative process, we might even find Congress deciding to make more decisions on its own, or states and local communities engaging in their own experiments.

To shift metaphors from the automotive to the monstrous, one could also think that even if Michaels’s Leviathan is too large and unaccountable, it is more public and transparent than the present alternative, which is fused with shadowy, privatized appendages. To borrow words from Holmes, whether we want to “kill” the administrative beast or simply “tame him and make him a useful animal,” one first needs to “get the dragon out of his cave on to the plain and in the daylight,” so “you can count his teeth and claws, and see just what is his strength.” Michaels’s administrative state allows us to take such inventory free of the false accounting the quasi-private administrative state enables. That, at least, could be a start. (And for those concerned about concentrations of power more generally—not just a liberty-limiting state—the large, private sector para-state can be just worrisome as a strong central government. It is no surprise that three of the finalists for the site of Amazon Headquarters 2 are located in metropolitan Washington, D.C.)

If there is insufficient public appetite for a return to the old regime, the question for its defenders remains whether meaningful separation and devolution of powers is possible in our polity today. If not, the present age’s dissenters must be more incrementalist, asking that constitutional law’s accommodation of the federal administrative state go this far and no further, while trying to start discussions and win arguments about the scope and division of public authority. (Such a perspective offers a charitable view on some of Chief Justice Roberts’s recent administrative law opinions like FEF v. PCAOB, which are long on worried rhetoric, but do little to roll back the present regime.) Slowing down the federal administrative state through internal separation of powers may not be an optimal solution, but it could provide additional breathing space for those necessary conversations, as well as for our possible re-constitution as a republic capable of less-centralized self-governance.

 Jeffrey Pojanowski is a Professor of Law at Notre Dame Law School.

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.

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