Sovereigns, Shopkeepers, and the Separation of Powers

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For decades, we have examined privatization with zeal and rigor. Relegated to the margins, however, have been inquiries into privatization’s close cousin: direct government market participation. Given the ubiquity of government commercial transactions, the political, legal, and economic challenges such transactions engender, and the rise of CEO‐style elected officials—the Trumps, Bloombergs, and Romneys of the world—almost evangelical in their commitment to running government like a business, closer study is warranted.

This Article characterizes direct government market participation as a complicated, confusing, and potentially dangerous fusion of sovereign and commercial power. It describes how this fusion may undermine markets, aggrandize State power, or do both at the same time. It compares the straddling of the sovereign and commercial realms with any number of other constitutionally problematic bridging efforts, including those to combine executive and legislative; executive and judicial; federal and state; civilian and military; church and State; and, of course, private and public powers. Lastly, it situates government market participation within its own separation‐of‐powers paradigm—and does so to help rationalize and domesticate the vexing but often necessary practice.

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