Document Type

Article

Publication Date

2018

Publication Information

116 MICH. L. REV. 959 (2018)

Abstract

The book Constitutional Coup, by Professor Jon D. Michaels, offers a learned, lucid, and important argument about the relationship between privatization, constitutional structure, and public values in administrative governance. In particular, Michaels argues that the press toward privatization in this domain poses a serious threat to the United States' separation of powers and the public interest. This review essay introduces readers to Michaels' argument and then raises two questions: First, it asks whether Michaels’ method of constitutional interpretation and doctrinal analysis accelerate the trend toward privatization and consolidation of power in agency heads, the very evils he seeks to avoid. Second, it asks whether Michaels’ version of separated powers within the administrative state is a worthy successor to the original, and more formal, three-branch version.

Neither set of questions admits of easy answers, and even those who disagree with Michaels’ conclusions should readily accede that he clarifies and enriches our understanding of the dilemmas the modern administrative state raises. Constitutional formalists, progressives, and libertarians alike should fear undifferentiated massing of power in the executive branch, a consolidation enabled by a force-multiplying phalanx of privatized actors. For those convinced of the gravity of this situation, the question remains how to address it, and Michaels offers a powerful opening shot.

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