Constitutional Coup

Privatization’s Threat to the American Republic

ISBN 9780674737730

Publication date: 10/23/2017

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.

Praise

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

—Sasha Volokh, Washington Post
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.

—Joshua Alvarez, Washington Monthly
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, author of The Decline and Fall of the American Republic
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, author of Framed: America’s 51 Constitutions and the Crisis of Governance
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, Notre Dame Law School
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.

—K. Sabeel Rahman, Harvard Law Review