The American Deep State

This Article, written for the Notre Dame Law Review Symposium on Administrative Lawmaking in the Twenty-First Century, considers the notion of bureaucratic depth and what it means in the American context. In what follows, I argue that the American deep state has very little in common with those regimes usually understood to harbor deep states; that, far from being shadowy or elitist, the American bureaucracy is very much a demotic institution, demographically diverse, highly accountable, and lacking financial incentives or caste proclivities to subvert popular will; that demotic bureaucratic depth of the American variety should be celebrated, not feared; and that, going forward, we need greater, not lesser, depth insofar as the American bureaucracy serves an important, salutary, and quite possibly necessary role in safeguarding our constitutional commitments and enriching our public policies

Separation of Powers and Centripetal Forces: Implications for the Institutional Design and Constitutionality of Our National-Security State

Today’s national-security state is increasingly highly concentrated, centralized, and consolidated across at least three dimensions: the public-private divide, the federal-state divide, and the political–civil servant divide within government agencies. Each of these dimensions of concentration, centralization, and consolida-tion has been individually examined. Yet notwithstanding careful study, there has been little appreciation of the potentially reinforcing effects of consolidation occurring along any two, let alone all three, of the relevant dimensions. That is to say, scholars and policymakers have generally zeroed in on only one dimension of con-solidation at a time—and they have assessed the pros and cons of public-private, federal-state, or intra-agency consolidation against what they treat as an otherwise static backdrop. his Essay insists that we need to think more capaciously and systemically—to take stock of all of the moving parts and gauge how they work together. We need to do so for purposes of smarter, more careful institutional design that accounts for the multiple dimensions on which federal executive power has become concentrated and consolidated. What’s more, we need to do so for reasons pertaining to constitu-tional separation of powers. The public-private, federal-state, and intra-agency lines of separation are each constitutionally salient. Even if the weakening or col-lapsing of any one of those lines of separation does not by itself rise to the level of a constitutional transgression, the weakening or collapsing of multiple lines of sepa-ration within a given substantive policy domain may well threaten our constitutional order. In short, this Essay proffers a multidimensional, aggregate-effects theory of constitutional structure. The sum total of individually minor incursions (on private, state, and bureaucratic autonomy) might constitute a major one as the president and her agency heads accumulate power along multiple dimensions, picking up bits and pieces from dragooned corporations, from co-opted states and municipalities, and from a defanged federal workforce effectively serving at the pleasure of the Administration

Beyond Accountability: The Constitutional, Democratic, and Strategic Problems with Privatizing War

This Article proceeds in six parts. I begin in Part II first by tracing the modern evolution of military privatization and next by discussing six contemporary case studies. Then, I attempt to locate some of the normative impulses motivating this new wave of privatization and to situate them within the broader pattern of American privatization policy; this last section serves to frame the principal conceptual differences between combat-related and more conventional forms of privatization, which will be important in understanding the unique structural harms introduced by decisions to outsource military responsibilities. In Part III, I commence with the inquiry’s critical analysis: understanding these structural harms. Then, in Part IV, I characterize how the introduction of private troops, either integrated into a larger contingent of U.S. military personnel or instructed to operate independently, creates considerable institutional harms, strategic liabilities, and morale problems. In Part V, the penultimate part, I discuss the international/diplomatic harms privatization engenders. Part VI concludes by first roughly sketching out a set of reform measures that might help to reduce the legal and symbolic status differentials between contractors and soldiers that underlie many of the manifest structural harms described above. Having proffered some reform proposals, I then consider which status disparities may prove the most difficult to eliminate. Finally, I discuss whether these reforms, if successful, might actually reduce, if not altogether destroy, military privatization’s raison d’etre

Just-Right Government: Interstate Compacts and Multistate Governance in an Era of Political Polarization, Policy Paralysis, and Bad-Faith Partisanship

Those committed to addressing the political, economic, and moral crises of the day— voting rights, racial justice, reproductive autonomy, gaping inequality, LGBTQ rights, and public health and safety—don’t know where to turn. Federal legislative and regulatory pathways are choked off by senators quick to filibuster and by judges eager to strike down agency rules and orders. State pathways, in turn, are compromised by limited capacity, collective action problems, externalities, scant economies of scale, and—in many jurisdictions—a toxic political culture hostile to even the most anodyne government interventions. Recognizing the limited options available on a binary (that is, federal or state) governance roadmap, this Article prescribes charting a third pathway: interstate agreements and compacts. Such arrangements—largely unnecessary when Washington is not pathologically dysfunctional—have a long and venerable constitutional pedigree and provide a legally sound and politically expedient “just-right” solution. Grouping clusters of states along the Pacific Ocean, the Amtrak Corridor, and the Upper Midwest, we propose and briefly sketch four major compacts as cornerstones of a Blue New Deal. Beyond detailing the four strategic interventions designed principally to work around the instant federal and state roadblocks (and recognizing similar opportunities for purple and, possibly, red states, too), this Article makes the affirmative, normative case for interstate agreements and compacts playing a long term, regular, and prominent role in twenty-first-century American governance—a case that sounds in democratic theory, administrative law, and political economy

Blue State Exodus?

American businesses and families are leaving Blue states in record numbers for destinations like Texas, Florida, and Georgia. This migration of people, businesses, and tax dollars has prompted claims of a “Blue state exodus” prompted by “leftist politicians imposing leftist ideology.” As expressed by Utah’s Senator Mike Lee, the “exodus” proves that “the Left’s policies don’t work.” But does the movement of taxpayers from Blue to Red states really signal a rejection of progressive policies? This Essay argues that, before accepting that interpretation, we should consider another possibility. Perhaps Blue states aren’t overly progressive, but insufficiently so. Paralyzed by political dynamics that keep them from offering affordable housing and addressing police violence, and prevented by the Supreme Court from taking aggressive action on gun violence and public health, Blue states are losing taxpayers and unable to attract Red state refugees seeking to escape punishing anti-Black, anti-choice, and anti-LGBTQ+ policies, in large measure because they’re unable to offer a sufficiently meaningful alternative to life in Red America to justify their higher cost of living. This account of the Blue state exodus has very different implications from Lee’s. It suggests that, rather than tacking to the center, Blue states should redouble efforts to prioritize affordability, stop subsidizing Red states, and position themselves to insist on a new national settlement—one in which civil rights, economic justice, and sound public administration are respected across the nation

FORWARD THINKING, WITH AN EAR TO THE PAST: A PERFORMANCE GUIDE TO DALLAPICCOLA’S QUADERNO MUSICALE DI ANNALIBERA

Abstract The purpose of this document is to provide a stylistic performance guide to Dallapiccola's Quaderno Musicale di Annalibera. It is my hope that this document constitutes a resource comprising information that can help piano students as they endeavor to put forth an interesting performance of Dallapiccola’s Quaderno Musicale di Annalibera. I will consider post-tonal theory, various features of Dallapiccola's compositional style, and the influence of past musical eras upon his compositions. Each of these considerations will comprise one of three sections total, forming the main body of this document. I have also included artistic and pedagogical ideas throughout, and have provided justification for these ideas by considering common aspects of Dallapiccola's output, as reported by peer-reviewed scholars. I will also apply established theoretical and mathematical procedures to Dallapiccola’s music. In a few instances, the result will constitute new research

Showcase Panel I: What Is Regulation For?

2018 National Lawyers Convention Transcripts “The administrative state, with roots over a century old, was founded on the premise that Congress lacked the expertise to deal with the many complex issues facing government in a fast-changing country, and that it was unhelpfully mired in and influenced by politics, leading to bad outcomes when it did act. The alternative was to establish administrative agencies, each with assigned areas of responsibility, housing learned experts qualified to make policy decisions, deliberately insulated from political accountability. The Administrative Procedure Act (APA), passed in 1946, both governs the manner in which agencies may adopt and enforce regulations, and provides for judicial review of agency action. Supporters of the administrative state point to the successes of agency actions leading to a cleaner environment, more sensible use of finite resources, healthier foods, safety on the roads and rails, and many other areas of improved quality of life. But even looking past structural separation of powers issues written into the bones of the administrative state, critics assert that in the ensuing 70 years the APA has become an ineffective limitation on agency power, as agencies bypassed its requirements by issuing sub-regulatory guidance, letters, FAQs, and more. Compounding the problem, the critics continue, the courts have adopted a policy of deference to agency actions that grant agencies even more latitude. Is it time to revisit the APA? If so, how should it be updated?” Speakers:Prof. Richard Epstein, Laurence A. Tisch Professor of Law, and Director, Classical Liberal Institute, New York University School of Law Prof. Philip Hamburger, Maurice & Hilda Friedman Professor of Law, Columbia Law School Prof. Kathryn Kovacs, Professor of Law, Rutgers Law School Prof. Jon Michaels, Professor of Law, UCLA School Of Law Moderator: Hon. Britt Grant, United States Court of Appeals, Eleventh Circuit Credit: The Federalist Society, https://fedsoc.org/conferences/2018-national-lawyers-convention#agenda-item-showcase-panel-i-what-is-regulation-fo