A new theory of administrative separation of powers protects modern government from its challengers.
There are two principal sets of challengers to the modern administrative state today: those who see the modern administrative state as a threat to or an affront to the constitutional separation of powers, and those who are more or less at peace with the modern administrative state as a constitutional matter but are nevertheless deeply distressed by the highly bureaucratized administrative state in the United States, one that they view as hopelessly inefficient, rigid, and unresponsive.
Both of these camps are seemingly gaining ground, squeezing the administrative state from two different flanks. The first flank, which I will call the constitutional conservatives, is reshaping not only academic debates but also American jurisprudence, as evidenced by recent murmurings by Chief Justice John Roberts, Justice Clarence Thomas, and then-Judge Neil Gorsuch. The second flank, which I will call the neoliberals, has been wildly successful in couching critiques of bureaucracy in technocratic, rather than ideologically charged, language and in actually reconfiguring parts of the administrative state to run more like a business.
All too often, the progressive or social democratic response to these two sets of challengers has, I fear, been either too dismissive or too conciliatory. Indeed, many defenders of the administrative state are quick to point to longstanding and capacious court precedents that have upheld the constitutionality of the administrative state—essentially to tell the constitutional conservative critics to get over it.
As for responses to the neoliberals, many defenders of the administrative state try to find common ground, effectively meeting the neoliberals halfway. They will, for instance, concede that businesslike government reforms are okay in some contexts, but not others; or they will fall back on empirical arguments, documenting the waste, fraud, and abuse that privatization and outsourcing engender, while leaving open the possibility that good privatization—free of waste, fraud, and abuse—is perfectly acceptable.
These responses leave much to be desired. After all, they do not seem to be working very well. The constitutional conservative and neoliberal camps continue to press forward, gaining adherents and closing in on the modern administrative state, again, from both sides. What is more, resting on historic but increasingly contested cases, and questioning comparative efficiencies, are far cries from propounding and amplifying a robust constitutional vision of the modern administrative state.
Regulatory actors committed to a strong, vibrant administrative state need an affirmative theory to galvanize and expand their base. They need an affirmative theory that stands up to both the constitutional conservatives and to the neoliberals.
Perhaps a theory of an administrative separation of powers would fit the bill. The administrative separation of powers theory takes as a given that the advent of the modern administrative state involved the collapsing of the traditional separation of powers and that combining legislative, executive, and judicial powers under one roof was, for that very reason, highly disconcerting.
But in fairly short order, government officials redeemed and refashioned the constitutional commitment to checking and separating state power—and did so by disaggregating administrative power among three sets of rivalrous, diverse stakeholders.
Specifically, power was—and often still is—triangulated among the presidentially appointed political leaders atop the agencies, the career civil servants who are politically insulated and carry out much of the day-to-day work of the agencies, and the public writ large who is authorized to participate meaningfully in many facets of administrative governance. Modern expressions of federal regulatory power involve the interplay of these three rivals—just as traditional expressions of federal legislative power involve the interplay of the three great branches.
To be clear, this administrative triangulation is not a thin reproduction of, or an empty formalistic nod to, the familiar tripartite scheme represented in the first three articles of the U.S. Constitution. Rather, the old and new separations of powers are very much interconnected.
The new separation of powers individually and collectively channel many of the characteristics and rivalries commonly ascribed to the old separation. The closest analogy connects agency heads to the President. Agency heads are apt stand-ins for the President herself, insofar as they are appointed by and answerable to the President.
The public writ large can likewise be viewed as roughly analogous to Congress, in more or less flattering ways. After all, the public’s participation in administrative governance is multipolar, pluralistic, and at times scattershot. Participation may be lay or expert—and organized or disorganized. Some members may favor a given proposal or initiative while others may oppose it. All of this activity certainly comports with what we know of Congress, itself multipolar, pluralistic, and at times scattershot.
Last, the civil service is the administrative counterpart to the federal judiciary. Like the judiciary, the civil service is effectively tenured and politically insulated. And, like the judiciary, the civil service is well positioned and disposed to act as a countermajoritarian check, resisting overly populist or partisan endeavors. And precisely because of its distance from the people, the civil service must––like the judiciary––do extra work to justify its central role in the American republic. The civil service does so through careful and robust engagement, through a clear explanation of an issue’s importance and how it may be addressed, and through a demonstrated commitment to consistent, nonpartisan interventions, over time and across political waves.
It is, again, the interplay of this set of rivalrous actors that ensures administrative governance is the product of broad-based and pluralistic buy-in.
As a result, the administrative state is not a runaway train, precisely because there are multiple veto points. It is not a tool of naked presidentialism, precisely because agency heads need the support of civil servants and the public writ large. It is not a coven of some “deep state,” precisely because, conversely, the bureaucracy needs support from the agency heads and public participants.
Instead, the administrative state roughly reproduces what happens—or, more often what does not happen because of all of the checking and balancing—under traditional constitutional governance.
Administrative separation of powers is not only my answer to those worried about all-powerful, all-concentrated administrative power, which I agree would be out of step with core constitutional commitments to separating and checking state power if that is what existed. Administrative separation of powers is also my answer to the neoliberal, businesslike-government crowd, who are actually on shaky constitutional footing.
Adherents of businesslike government seek, among other things, to replace career civil servants with private contractors, who are thought to be more efficient and responsive. Businesslike government proposals also would convert civil servants into purportedly more efficient and responsive at-will employees.
Such proposals to replace or convert the civil service—often advocated by members of both parties—are pitched as nonideological, technocratic fixes intended to speed up and streamline administrative governance.
But consider what these fixes do to administrative governance and the separating and checking of state power. For example, with government outsourcing––wherein all sorts of administrative responsibilities are contracted out to the private sector––the reasons why the businesslike government crowd likes contractors are the very same reasons why contractors are constitutionally dangerous.
Because contractors are hired and fired by agency heads—and subject to performance-based bonuses—they have every incentive to be “yes” men and women to the political leaders atop the agencies. Tenured, salaried civil servants, by contrast, are servants of the state, not any particular administration. As such, they provide a meaningful check, and do so on both Republican and Democratic administrations alike. After all, it isn’t just liberal bureaucrats checking a conservative presidential administration; Democratic administrations too run into all sorts of conflicts with civil servants uneasy with hyperpartisan or unsubstantiated directives.
In short, the use of contractors weakens one of the important dimensions of administrative separation of powers: the potentially potent rivalry between agency heads and the career bureaucrats.
The outsourcing of policymaking and policy-implementing responsibilities to contractors would also move the locus of governance into private corridors. This shift makes administrative governance far less accessible to the public. As a result, outsourcing also marginalizes public participants and weakens that dimension of checking and balancing, too.
The marketization of the bureaucracy, where civil servants are stripped of their job protections and reclassified as at-will employees, would also weaken the system of administrative separation of powers. Changing the current civil service to a neo-spoils system would render the now at-will bureaucracy far more subservient to the agency leadership.
This fragmented, tripartite administrative scheme serves as a constitutional salve, as it takes a good deal of the sting out of otherwise unitary agencies, which can become hyper-potent and unfettered. It also serves as a constitutional adhesive, binding the administrative state to the underlying and similarly fragmented and triangulated scheme and constitutional emulsifier of the old separation of powers, mixing the administrative regime into an overarching doctrine that, in Thomas Merrill’s words, constitutes “more than the sum of the specific clauses that govern relations among the branches.”
If state power morphs and evolves, and if state power flows through instruments new and different from those expressly mentioned in the first three articles of the Constitution, one means of ensuring constitutional fidelity between the old and the new is to insist that the instruments are themselves democratically informed and subject to substantially similar institutional checks and balances.
And indeed, administrative separation of powers represents a faithful restaging in which the disaggregated administrative architecture is tethered to the structures, personalities, and substantive content of the United States’ underlying constitutional scheme.
This essay draws on the author’s remarks given at the 2018 University of Pennsylvania Law Review Symposium held on October 20, 2018. Many of the ideas presented here are elaborated in Jon D. Michaels, Constitutional Coup: Privatization’s Threat to the American Republic.