“I’m going to get good contractors and push the hell out of them,” said Donald Trump. Though the sentiment jibes with any number of declarations made on the campaign trail and since taking office, the exact quote actually dates from 1986, when Trump was making a push to take charge of work to revive a moribund Central Park skating rink. Placed alongside words from James Madison and James Landis, FDR’s SEC chairman, that Trump quote now rounds out an absurdist trio of epigraphs employed by legal scholar Jon D. Michaels in a new book on the pitfalls of privatizing government.
While the book, Constitutional Coup: Privatization’s Threat to the American Republic, considers the full range of governmental functions susceptible to privatization, in an L.A. Times piece earlier this summer Michaels warned of the particular dangers of privatizing the American military. In response to reports that Jared Kushner and the now-banished Steve Bannon had turned to contractors including Blackwater founder Erik Prince for help with Afghanistan, Michaels recounted the “fiscal, operational, and diplomatic headaches” that the likes of Prince have wrought, asking how Kushner and Bannon could’ve “forgotten all the ways in which an outsourced war is a perniciously unaccountable one, divorced from our democratic military and its long-inculcated values and commitments?” Whenever the book on the American wars in Iraq and Afghanistan is finally written, he continued, “one deeply unsettling chapter will tell the sorry tale of America’s injudicious revival of the private military industry.”
Then last week, as if on cue, Prince took to the op-ed page of the New York Times to publicly make the case for his company’s enduring value to America’s longest war:
My proposal is for a sustainable footprint of 2,000 American Special Operations and support personnel, as well as a contractor force of less than 6,000 (far less than the 26,000 in country now). This team would provide a support structure for the Afghans, allowing the United States’ conventional forces to return home.
This plan would use former Special Operations veterans as contractors who would live, train and patrol alongside their Afghan counterparts at the lowest company and battalion levels—where it matters most. American veterans, whose extraordinary knowledge and experience could be vital to Afghan success on the ground, would serve as adjuncts to the Afghan Army and would perform in strict conformity with Afghan rules of engagement, eliminating the stigma of a foreign occupying force. Supplemental Afghan air power, flown with Afghan markings, would include a contractor safety pilot, but only the onboard Afghan officer would make weapons decisions. All contracted personnel would be subject to the Uniform Code of Military Justice, just as active-duty American troops are now.
If the president pursues this third path, I, too, would vigorously compete to implement a plan that saves American lives, costs less than 20 percent of current spending and saves American taxpayers more than $40 billion a year. Just as no one criticizes Elon Musk because his company SpaceX helps supply American astronauts, no one should criticize a private company—mine or anyone else’s—for helping us end this ugly multigenerational war.
In the face of Prince’s proposal, we turn back to Michaels and Constitutional Coup, in which he argues that the State cannot be separated from its people, practices, and infrastructure without doing considerable violence to our constitutional order. From the book:
Today’s fusion of market and political power—this running government like a politicized business—has the effect of sidelining or defanging otherwise independent, expert, and truly mandarin civil servants and marginalizing the populist contributions of an otherwise empowered and diverse civil society. The fusion also has the effect, quite often, of funneling government responsibilities through private or essentially privatized corridors, far away from public scrutiny and legal constraints. All told, sovereign power is being concentrated in the hands of presidentially appointed agency heads and the private actors paid to do their bidding. The end result is an unprecedentedly potent and potentially abusive State, led by a largely unfettered executive capable of wielding concentrated sovereign power in a hyperpartisan or crassly commercialized fashion.
For those distressed by this recent turn of events, the framers’ commitment to checks and balances provided, and still provides, an answer. It provided an answer to constrain not only the First Congress but also the alphabet agencies arising out of the New Deal and World War II. That same commitment needs to be renewed today, to address the State-aggrandizing, power-concentrating challenges posed by twenty-first-century privatization.
Today is the operative word. One is reminded of the hopeful yet chilly words of Benjamin Franklin, when asked by an inquisitive Philadelphian what form of government the framers concocted: “A republic, if you can keep it.” Generations past have done their best to keep it. Now that it is our turn, the instant challenge is privatization. If we wait much longer, we’re certain to reach a tipping point, at which time reversing the privatization trend will prove next to impossible. This is true on legal, pragmatic, and even psychological levels.
Legally, the more privatization is allowed to continue apace without muscular constitutional pushback, the harder it will be for the courts to take late-arriving challenges seriously. Even if those challenges prove compelling, the courts’ hands may very well be tied as the federal landscape continues to be drastically and possibly inexorably altered by the forces of privatization and as a host of sticky cultural norms, instances of congressional acquiescence, and years of historical gloss render the privatized State constitutional by default.
Pragmatically, we will have hollowed out the government sector to such an extent that we may well lack the capacity, infrastructure, and know-how to reclaim that which has increasingly been outsourced or marketized. Indeed, there is seemingly no other explanation for the State Department’s recent practice of renewing contracts with the notorious Blackwater firm after the Obama administration sanctioned Blackwater for illicit arms smuggling, after federal prosecutors brought murder charges against Blackwater employees, and after the American-backed governments in Baghdad and Kabul designated Blackwater employees as personae non gratae. Apparently, the United States had no viable in-house alternative.
And, psychologically, we will have done such a good job disassociating the public services we like from the government itself—and will have been doing that job for so long—that we’ll risk altogether forgetting the State’s sovereign, democratic mission. Indeed, the more we indulge the fiction of governmentless government, and the longer we enable those who demonize government workers, the harder it becomes to generate support, or even respect, for the actual public sphere and its role in the political economy.
Just as wars aren’t skating rinks, government isn’t business. And, as Michaels shows, it’s critical that we reclaim the virtues of the public sphere and make clear that government’s legality and efficacy turn on it being a manifestly unbusinesslike institution.
