Sovereigns, Shopkeepers, and the Separation of Powers

40 Pages Posted: 7 Apr 2020

See all articles by Jon D. Michaels

Jon D. Michaels

University of California, Los Angeles - School of Law

Date Written: 2018


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.

Keywords: Separation of Powers, Government Market Participation, Constitutional Law, Due Process, Privatization, Self-Dealing, Neoliberalism, Running Government Like a Business

JEL Classification: H4, H44, H11, H13, H53, H54, H55, K23

Suggested Citation

Michaels, Jon D., Sovereigns, Shopkeepers, and the Separation of Powers (2018). University of Pennsylvania Law Review, Vol. 166, No. 861, 2018, Available at SSRN:

Jon D. Michaels (Contact Author)

University of California, Los Angeles - School of Law ( email )

385 Charles E. Young Dr. East
Room 1242
Los Angeles, CA 90095-1476
United States

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