The Messenger: How To Hold Unelected Officials Accountable? The Constitution’s Appointments Clause

July 16, 2023 | By MICHAEL POON
Supreme Court

When you cast a vote for your chosen candidate, you are not only making your voice heard in one of our most cherished civic rituals but also endorsing the fundamental principle of democratic accountability, according to which, government officials are expected to be answerable to the people. Ensuring that the people remain in control of the government was a primary political aim of the Revolutionary generation, and its achievement has been a gift to each generation thereafter.

But in recent decades, Americans’ faith in that accountability has been shaken, justifiably. We’ve seen unelected bureaucrats make decisions and implement policies that undermine the choices of elected representatives, and the problem has gotten worse with time.

Thankfully, the U.S. Constitution has a solution — an often-overlooked but powerful tool for ensuring accountability for unelected officials: the separation-of-powers provision known as the Appointments Clause.

The Framers of the Constitution crafted this provision in response to the British monarch and royal governors who would appoint unqualified loyalists to government positions. That abuse was significant enough that it was one of the grievances enumerated in the Declaration of Independence.

The Appointments Clause generally requires unelected federal officials with significant power to be nominated by the president and confirmed by the Senate, and the president must be able to fire these officials at will. Only these “Officers of the United States,” not just any government employee, can make important decisions that affect the public. And because officers are both hired and fired by elected representatives, the people can hold officers accountable by holding their elected representatives accountable for officers’ actions.

The Framers expected the confirmation process to be highly visible, so that nominations would be elevated in the public conscience into “matters of notoriety,” as Alexander Hamilton described it. That visibility would focus the public’s attention and watchfulness on the candidate and the appointment, so that the president and Senate knew they would be held responsible for making a poor appointment. Whenever you see televised confirmation hearings for Supreme Court justices or Cabinet secretaries, you’re witnessing a living constitutional link to that tradition.

Even if you’re not familiar with the Appointments Clause or its historical basis, you understand these principles at an instinctive level. After all, the very essence of democracy is that, by voting, we can hold elected officials accountable for their performance. These elected officials should run the show, meaning they must have firm control over unelected officials.

Regulators and other government officials routinely make decisions that have significant impacts on citizens, our freedoms and our economy, but we rarely see their faces or learn their names. Research by my colleagues at Pacific Legal Foundation found that more than 70% of rules issued by the Department of Health and Human Services were unconstitutional because the officer responsible for the rule was not property appointed.

When things go wrong, who can we turn to? If you’re dissatisfied with your member of Congress, you can always vote against him or her. But there are few avenues for recourse for citizens who seek to challenge decisions rendered by faceless bureaucrats in massive regulatory agencies. Elected representatives often prefer this arrangement, because it means they can avoid taking responsibility for unpopular policies but can swoop in to take credit for popular ones.

Restoring the Appointments Clause to its proper place in the constitutional order is essential to revitalizing the democratic accountability that is a cardinal principle in a constitutional republic like ours. In fact, in recent years there has been an active litigation effort on the part of public-interest attorneys — including my colleagues and I at Pacific Legal Foundation — to challenge government violations of the Appointments Clause, and the Supreme Court has taken steps to clarify and define the scope of the clause.

But we can’t wait for the courts to affirm the vital principle of democratic accountability. Americans should expect more from our public officials. We should demand that the president take the Constitution seriously and insist that only Senate-confirmed officials issue binding regulations. And we should expect the Senate to thoroughly vet the president’s nominees in widely publicized confirmation hearings. Only by reclaiming the commitment to democratic accountability can we limit the power of government officials and protect our liberties.

This op-ed was originally published at The Messenger on July 16, 2023.