Discourse: The Constitution’s Overlooked Road Map for an Accountable Bureaucracy

January 29, 2024 | By ALISON SOMIN
impeachment process

The Constitution grants executive power to the president, but presidents cannot do all the work of the executive branch alone. They need subordinates to help them carry out their work: cabinet secretaries, undersecretaries and thousands of other political appointees throughout the federal government. But the Constitution also promises a government that is accountable to the people. So how do we the people retain that accountability when we don’t get to vote for many of these officials, who wield enormous power?

The Constitution has two important tools to guarantee that federal officials remain accountable to the people. First, the appointments clause requires that any government officials who wield substantial power must be confirmed by the Senate, ensuring these officials are vetted by the people’s representatives in Congress. Second, the Constitution requires that, once confirmed, appointed officials can be fired by the president if they perform poorly or follow their own priorities rather than the president’s. The president’s control over these officials makes him responsible for their actions, and at the same time, the president is directly accountable to voters, who can show their displeasure at the next election.

Unfortunately, this system has fallen into disrepair. Today there are hundreds, if not thousands, of officials in the federal government who exercise expansive power who are not confirmed by the Senate, are not accountable to the president, or both. To fix this broken system, it’s necessary to revitalize the president’s powers to appoint and remove executive officials.

How a Quest for Expertise Created an Unaccountable Administrative State

In the late 19th and early 20th centuries, the progressive movement grew increasingly critical of the original constitutional design. The progressives wanted to move power away from the democratically elected president and direct appointees into the hands of supposedly impartial, nonpolitical experts.

Their moment came in the 1930s, when the crisis of the Great Depression led to demand for extraordinary measures. Congress created a slew of new executive agencies and made it impossible for the president to fire many of the officials who populated those agencies except for cause. And over the ensuing decades, as these agencies pushed the bounds of their own power, decision-making power accumulated with officials who were never constitutionally appointed.

Early progressives and contemporary defenders of the administrative state have defended removal protections for federal officials because they allow those officials to be “insulated from politics.” But put another way, this is ultimately an attempt to wrest the levers of government power away from the people. It’s incompatible with the Constitution’s promise of self-government, the beating heart of the American experiment. The people deserve the government they choose, whether it comports with the preferences of the “experts” or not.

There is value to having the executive branch staffed by experts with technical knowledge. But technical knowledge is only one part of the puzzle that is policymaking. Values also matter, and the ability to make tradeoffs among competing values is one of the most important parts of governing. Those tradeoffs must be made by the people’s representatives or, at the very least, officials who are directly accountable to them.

Unlike the intentional spread of removal protections, the plethora of federal officials who wield government power without being vetted by the Senate developed as much by default as by design. The New Deal and the Great Society vastly expanded the footprint of government interference in the lives of everyday Americans. All those rules and enforcement actions overwhelmed the capacity of officials who had been appointed by the president and confirmed by the Senate. Rather than appointing more of these officials, the executive branch devolved lots of power to employees who were never appointed in an accountable manner.

Real-World Applications of the Appointments Clause

Regulatory overreach by officials who are not constitutionally appointed appears to be all too common. One Pacific Legal Foundation study found that 71% of rules issued by the Department of Health and Human Services were unconstitutional because the officer signing them was never appointed by the president and confirmed by the Senate.

Therefore, the Supreme Court and lower courts ought to take advantage of opportunities in the cases brought before them to enforce the appointments clause and strip removal protections from unaccountable federal officials. The Pacific Legal Foundation is currently mounting several challenges to the constitutionality of rules promulgated by these unaccountable government officials.

Take, for example, Karen Bell and William Copeland’s challenge to rules issued by the unconstitutionally appointed members of the Gulf of Mexico Fishery Management Council. Although members of this council exercise vast power over the already heavily regulated commercial fishing system, none are appointed by the president or confirmed by the Senate, as the appointments clause requires.

This arrangement grants enormous power to bureaucrats who are not authorized to wield it and who are not accountable to the president and, ultimately, to the American people who elected him. Across the country, Raymond Lofstad and Gus Lovgren are bringing a similar challenge to the equally unaccountable Mid-Atlantic Fishery Management Council.

Or consider Jeffrey Moats, who served as CEO for the Edinburg Teachers Credit Union (ETCU) in South Texas for more than 25 years. Under his leadership, the ETCU flourished. But the COVID-19 pandemic brought financial problems that prompted the Texas Credit Union Department to order the ETCU into conservatorship, which brought the ETCU under the control of federal regulators at the National Credit Union Administration (NCUA). The regulators who took control of the bank abruptly fired Moats and seized every piece of property in his longtime workplace, including personal belongings of great value to him. Moats is now fighting back.

Ordinarily, this sort of property dispute would be resolved in an Article III court, presided over by an impartial judge. But the NCUA instead hears such matters in an in-house court, where it gets to act as accuser, prosecutor, judge and jury. Another injustice inherent in the Moats case is that the NCUA judges are protected from removal. The NCUA’s in-house judges are shared by three other financial agencies. These administrative law judges can be removed only for cause and, in Matryoshka doll-like fashion, only with unanimous agreement among all four agencies.

Another example: Jamie and Clyde Leach are entrepreneurs who developed an innovative line of baby products, all of which come with ample warnings about safe use. Nonetheless, babies have suffered harm when their adult caregivers failed to follow the warnings, and the Leaches were hauled before the Consumer Product Safety Commission’s in-house court. Once again, the in-house judges, who could blow up the Leaches’ livelihood, are unconstitutionally protected from removal. The Leaches have sued the commission, challenging the legality of this stacked proceeding.

Reviving the Appointments Clause

The appointments clause provides a floor for democratic accountability, but it is not a ceiling. Congress could consider passing additional legislation that safeguards the principle by, for example, requiring the president to personally sign rules in high-profile areas of regulation. This step is not unprecedented: There were presidential signature requirements for issuing rules under Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972. These requirements have, alas, been wrongfully delegated away, but they did serve as a brake on regulatory state overreach earlier in these laws’ histories. Congress should revive those requirements and enact similar requirements for other laws.

Although defeating entrenched and unaccountable bureaucracies is difficult, restoring accountable government by revitalizing the appointments clause and presidential removal powers is well worth the effort. Advocates for individual freedom should take seriously the structural mechanisms of the Constitution that preserve liberty and self-government.

This op-ed was originally published at Discourse on January 18, 2024.