Jon D. Michaels’s new book, Constitutional Coup: Privatization’s Threat to the American Republic, offers a creative and—in my view—persuasive defense of the modern administrative state. I agree with Michaels that the tripartite allocation of authority among agency leaders, civil servants, and federal courts endows the administrative state with a measure of democratic legitimacy while also protecting us from arbitrary and unaccountable exercises of power by particular individuals and factions. I also agree with Michaels that this division of administrative authority, while not precisely what the Framers foresaw, has nonetheless taken on a quasi-constitutional dimension and is broadly consistent with the Madisonian vision of “checks and balances between the different departments.” And I agree with the other participants in this symposium that Michaels has made his case concisely, eloquently, and enjoyably.
Yet while I largely share Michaels’s generally positive (and sometimes wistful) view of the 20th century administrative enterprise, I find myself disagreeing, often vehemently, with his claim that “privatization” poses an existential threat to that project. Privatization, as I see it, is both a necessary and welcome feature of our distinctly American welfare state—a feature that we ought to foster rather than fear. I would go a step further and argue that the modern administrative state—if it is to remain modern—must continue to accommodate processes of privatization while also allowing at times for its reversal. I agree with Michaels that it would be a threat to the American Republic if we pursued privatization to its maximum possible extent, but it is neither practicable nor desirable to do away with privatization entirely.
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