A History and Defense of the Administrative State: Q&A With Professor Jon Michaels

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Professor Jon Michaels’ Constitutional Coup (Harvard University Press, 2017) makes the case that the modern administrative state, long pilloried by an American public distrustful of “big government,” is constitutionally legitimate and virtuous — and should be celebrated rather than demonized and deconstructed.

Michaels’ book offers a textured history and vigorous legal defense of an enduring, evolving understanding of separation of powers that carries forward from the Framers to the New Dealers to those who clamor today to privatize government and run it like a business.

What is the “constitutional coup” that this book discusses?
The coup is the toppling of the federal administrative state and the replacing of that bureaucratic governance scheme with a privatized one. Modern federal agencies wield vast powers, command inconceivably large budgets and directly affect our lives in countless big and small ways. In the book, I explain why the administrative state is a natural and faithful extension of the Framers’ original scheme and show how the very structures and practices that give the administrative state its constitutional legitimacy are the ones most affected (and subverted) by the forces of privatization.

How did we get here?
The coup is many decades in the making. Disillusionment with the modern welfare state of FDR, LBJ and — yes — Richard Nixon came hard on the heels of Watergate, Vietnam, stagflation and, for some, resistance to the civil rights and the feminist movements. Enter Ronald Reagan, who promised to tear down government and opened the door to privatized governance. But the big move came when Bill Clinton doubled down on privatization, converting it from a far-right initiative into a technocratic, bipartisan one that every president since has advanced. Needless to say, the push to privatize has accelerated dramatically under President Trump.

What is stopping us from reversing the constitutional coup?
The biggest challenge is not President Trump and his explicit, aggressive hostility to the administrative state, but rather the fact that the privatization revolution has been several generations in the making. The American people are not naturally disposed to come to the defense of bureaucracy. That said, Trump may well be an example of American libertarianism (or, if you prefer, neoliberalism) jumping the shark. His over-the-top attacks have made us more sympathetic to the plight of demonized civil servants and more appreciative of the role played by the bureaucracy, particularly in times of political instability. By being so strident and ham-fisted, Trump may be the unwitting savior of the American welfare state.