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Constitutional Coup: Privatization’s Threat to the American Republic 1st Edition

by Jon D. Michaels (Author)

4.4 3 ratings

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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.

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Editorial Reviews

Review

“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

About the Author

Jon D. Michaels is Professor of Law at the UCLA School of Law.

Product details

ASIN ‏ : ‎ 0674737733
Publisher ‏ : ‎ Harvard University Press; 1st edition (October 23, 2017)
Language ‏ : ‎ English
Hardcover ‏ : ‎ 320 pages
ISBN-10 ‏ : ‎ 9780674737730
ISBN-13 ‏ : ‎ 978-0674737730
Item Weight ‏ : ‎ 1.38 pounds
Dimensions ‏ : ‎ 6.4 x 1.1 x 9.4 inches

Best Sellers Rank: #1,893,059 in Books (See Top 100 in Books)
- #398 in Constitutional Law (Books)
- #454 in Business Development
- #925 in Government

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RDN5

The Career Civil Service is under attack - and why it matters for democracy

Reviewed in the United States on December 19, 2017

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Constitutional Coup resonated with me in the Trump era by unearthing a less-discussed but still important trend. Michaels argues that the administrative state — including the career civil service component — is structured precisely to provide checks and balances to prevent “efficient” use of political power by the executive branch. In other words, the “deep state” is a feature, not a bug, and it exists precisely to temper the extremes of an executive – especially one like Trump. Michaels takes this argument a step further, arguing that the march toward privatization of government (let alone Steve Bannon’s deconstruction of the administrative state) is eroding that function — in addition to lining the pockets of government contractors. In other words, Michaels has identifies the under-the-radar administrative strategy that connects privatization with broader efforts to consolidate power. It's an important message that is delivered in a cogent and well-supported argument -- and an important one for us to understand in this era of attacks on institutions.

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Tonstant Weader

If you care about good governance you should read this book - but it won't be easy.

Reviewed in the United States on November 2, 2017

Constitutional Coup: Privatization’s Threat to the American Public is one of those books that drive me crazy. It should be read by everyone who cares about good governance but is written with that kind of baroque academic language that ensures the people who need to read won’t get past the introduction.

Privatization of government services has expanded rapidly and dangerously over the years. It is aided by our tepid defense of public servants and the civil service. It has come to the point where the phrase “good enough for government work” is understood as minimal competence rather than the original meaning of excellence. We seem to have forgotten why we have a civil service in the first place, a rejection of the disgrace of patronage and graft that typified Gilded Age government.

The founders did not imagine this fledgling America would expand from thirteen to fifty states and two to two hundred million, so they did not imagine a need for any sort of expansive administration state. We’re missing an article in our Constitution, though Michaels is too polite to say so.

Michaels’ contribution is pointing out that the civil service mirrors the separation of powers the founders originally conceived. Presidents appoint several hundred executives who are tasked with managing departments to reflect executive will. Civil servants prove their professional competence through testing and standardized hiring protocols. With their positions protected from partisan leverage, they echo the learned independence of the judiciary. Then we Regulations.gov and other avenues to allow the general public to voice their opinion embodying the legislative function. Together, they conform to the three functions of government, a constitutional balance of powers we should be using to vigorously defend the administrative state. But we don’t.

We let opponents of government regulation and progressive government assert that the bureaucracy is unconstitutional, a usurpation of power. This allows them to push a new privatization that elevates the executive over the other branches of government. How critical this is was recently revealed by the bizarre no-bid contract awarded to a two-man power company in Montana to restore electricity in Puerto Rico. This is also reflected in the private contractor cook chopping onions earning three times the salary of the soldiers he’s feeding, not to mention the millions earned by the huge military contractor companies whose are insulated from audits, oversight, and even prosecution at times.

FIVE STARS

On one hand, I want everybody to read Constitutional Coup. I have already tagged friends who care about governance, pushing this book on them. We need the power of Michaels’ arguments, the scholarship, history, and evidence he marshals with precision and authority to defend the administrative state, public service and the idea of professional, nonpartisan, civil service. This book promises a lot and delivers everything it promises.

There is real integrity in Michaels argument. He presents the argument of those who push privatization fairly. He does not create straw men, move the goal posts, or engage in logical fallacies. His rigor in presenting his argument is sustained by his fair and painstaking consideration of its opposite. This is academic reasoning at its best.

TWO STARS

On the other hand, this is one of the worst examples of dry academic writing I have read. For example, he used the word perdure. I have a wide vocabulary and recognized the word from other baroque academic texts. I am that word nerd who will log into my library account and see why perdure is better than a more common synonym and sure enough there is a small justification for using perdure. Unlike endure, persist, continue, or last, it actually means last forever. But, really? Even though folks will understand from context it means endure or continue, no one will know from context it means endure forever.

That’s just one example and it’s not what I found most tedious. My real problem was his rigorous adherence to Dale Carnegie’s advice to “Tell the audience what you’re going to say, say it; then tell them what you’ve said.”

Carnegie was talking about talking. It is still a good idea to introduce what you plan to say and recap when you’re done, but Michaels actually writes that he is going to tell us a, b, and c and then tells us when he will tell it, then tells us that he told us, and then repeats it again for the next section. Then he reminds us later what he told us and tells us what chapter he is going to tell us the next thing. I think if you cut out all the Carnegie structure, you would lose a third of the text.

So I am conflicted. What I really want is for journalists to read this book and distill its important contribution to our understanding of governance and the administrative state into articles and opinion columns that move his ideas into circulation. I want Rachel Maddow and Joy Ann Reid to interview him. I want Kevin Drum, Nancy LeTourneau, and Joshua Holland to popularize his ideas because his ideas are far too important to rely on him to communicate them.

As for Michaels, there’s a couple of books on my list of books I want to read that I suggest he take a look at, too. (Don't Be Such a Scientist and Houston, We Have A Narrative)

I was graciously provided a copy of Constitutional Coup: Privatization’s Threat to the American Public by Harvard University Press.

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