We live in a democracy, but are we governed by one? The Manhattan Institute’s Jim Copland argues persuasively, in The Unelected, that quite a lot of our governance comes from people we didn’t vote for, and whom we cannot vote out to hold them accountable for misrule. His tour of the unelected ranges further than a lot of Americans might think.
Unelected government in America is a familiar problem, starting with activist judges who hand down rulings unmoored from anything written in the law. But most of Copland’s targets are elsewhere. Many of his worst culprits are not those who seize power but those who abdicate it because they fear accountability. That makes this a particularly timely topic during the pandemic, in which the public is never quite sure who is in charge: Does the president run the FDA, the CDC, and the National Institutes of Health? If the experts don’t answer to the president, whom do they answer to, and where can we register our displeasure? A concluding section on the pandemic is obviously tacked on but not out of place.
Copland begins by laying out the different ways in which our government has abandoned the original design of constitutionally separated powers, but he does not stop there, moving on to three other areas: the vast discretionary powers of prosecutors, the regulatory effect of class-action and mass-tort lawsuits, and the power of states to impose their laws on the rest of the country, which has no vote in how other states are run. In addition to the weakness of the central government, one of the fears of the Framers of the Constitution was what Alexander Hamilton, in Federalist No. 22, called “interfering and unneighborly regulations of some States” that could multiply to thwart local self-government.
The Massachusetts constitution, drafted largely by John Adams in 1779, pledges: “The legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” In truth, a strong separation of powers is not only a guarantee of the rule of law; it is also a safeguard of the rule of men, because it promotes clear lines of accountability that allow voters to identify who is responsible when bad laws are made or when good laws are badly executed. The government Adams envisioned could never see a chief executive locked in a power struggle with a “deep state” responsible for independently executing laws.
Copland lays out with care the historical roots of the sometimes well-intentioned erosion of each of these barriers. Early courts, scholars as far back as Blackstone, and key Framers such as James Madison insisted that legislatures could not delegate their law-writing powers to the chief executive or his agencies; that view was the dominant strain of American thinking until the New Deal. Today, the Supreme Court’s conservatives must wage an uphill battle to resuscitate the “nondelegation doctrine,” and Copland is pessimistic that it will extend beyond the “major questions” doctrine, which applies an ad hoc judgment that some subjects, such as tobacco regulation and climate change, are just too big to let agencies rule on them without explicit congressional authorization.
Early Americans also believed that the executive should be able to overrule and remove executive officers at will. The Jacksonian “spoils system” generated early opponents of this view in the Whig Party. The Confederate constitution pioneered limits on executive removal of subordinate officers. Reconstruction led Republicans to constrain Andrew Johnson from removing his cabinet, and to impeach him for trying. The civil-service reforms that followed the assassination of James Garfield dismantled the spoils system, but at the expense of creating a body of executive agents beyond the reach of the chief executive, who was unable to dismiss them. Woodrow Wilson, Teddy Roosevelt, and even the conservative justices who opposed the New Deal all built into the system additional insulation from voters. Copland is less interested in the constitutional theory than in narrating how this happened and illustrating why it matters today.
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