Accountability, Once Removed

People who believe in representative government should support the premise that government be as local as possible. That which can be handled by a city or town should not be managed at the state level, and that which can be handled at the state level should not be managed by the federal government. Not only does this put voters closer to the people they elect, it allows testing of competing ideas and gives people the opportunity to “vote with their feet.” America’s Federal system, with much power reserved for the States, is a brilliant feature that serves as a powerful check against government run amok.

This principle is why I was a supporter of Brexit, and why I continue to think that the EU is more bane than boon. The mandarins in Brussels are too far removed from their constituents to be truly responsive, and the vast cultural differences across member nations produce unbalanced and counterproductive results.

Here in America, we have a somewhat different accountability problem, one that’s coming to a head in the Supreme Court case Trump v Slaughter. At issue is whether Trump, as the head of the Executive Branch and thus the purported boss of all the alphabet agencies that run our lives, has sufficient authority over them to fire top-tier bureaucrats.

In this case, the Act that created the Federal Trade Commission limits the President’s power to fire any of the five commissioners it authorizes to “inefficiency, neglect of duty, or malfeasance in office.” This makes the FTC one of a number of quasi-independent agencies whose behaviors and policies - all executive functions - are insulated from the wishes of the Chief Executive, and by extension, of the wishes of the voters who put him in office.

Yes, these agencies are the product of the Legislative Branch of government, and our legislators on Capitol Hill do have the ability to write new laws should an agency or head of one start doing stuff the People don’t like, but Article II, Section 2 of the Constitution grants the President the power to appoint public servants, sometimes with Senate consent but other times without.

Can Congress limit an Executive Branch function via legislation that falls short of Constitutional Amendment?

While there is case law that supports the insulation of these agencies from the Presidency, many are questioning the wisdom of those decisions, and by extension the premise of this “fourth branch of government” that carries on as it will no matter who gets elected.

Some argue that this provides stability and continuity across the years, but one look at the bloat, dysfunction, and sclerosis of our government should disabuse anyone of the notion that this is a Good Thing.

Despite this reality, the “independence” idea has its defenders. They are typically technocratic in philosophy, believing that the nation should be run by smart people who stand apart from and above the ignorant rabble that aren’t wise or educated or expert enough to know what’s good for them. Matt Taibbi takes SCOTUS Justice Ketanji Brown Jackson to task for just such a viewpoint.

It is a viewpoint that first took root over a century ago, under Woodrow Wilson. Not coincidentally, the corruption of the American Experiment began under that haughty, self-important, racist asshole, who would be on the Mount Rushmore of Worst Presidents Ever were such a thing to exist (it should, and someone should start a GoFundMe). I’d nominate Buchanan, FDR, and LBJ for the other three spots.

Rushmore-of-Shame aside, and disregarding feelings about Trump, the core question remains - should Congress have the power to usurp or interfere with the Constitutionally-specified duties of the President in this fashion? Is the principle of representative government served by creating these independent unaccountable agencies? Have we created a monster that’s slowly suffocating us?

There is great temptation to scream ...BUT TRUMP!!! in answer to this question, and indeed I’ve seen many conservatives who hoped and prayed that the Institutions would shield us from his worst whims. Thing is, our system already has plenty of checks and balances to shield us from the whims of any President. Tripartite government, bicameral Congress, the aforementioned power of the States, the inherent limits of enumerated powers, and, most germanely, the separate of powers, all stand athwart any President run amok. More importantly, Trump isn’t going to be President forever, and our system is not supposed to adjust in function as personnel change.

Unelected bureaucrats are not part of the system. They are supposed to be an extension of the will of the People via their selection for President, not a shadow government operating as it will no matter who gets elected. It is Congress’s job to determine what those alphabet agencies are empowered and permitted to do. If Congress abandons its authority to those agencies, it doesn’t get to overrule the President’s authority as Chief Executive. Our branches of government are co-equal, each reining in the other, but none infringing on the other’s turf. Yes, Congress has ceded a big chunk of its role to the Executive, but it can’t create a separate branch of government in order to hamper the Executive Branch’s functions. The right thing to do is to rescind that abandonment and get back to actual lawmaking.

At the open, I noted that the EU bureaucrats in Brussels are too far removed from the people they purportedly serve. The same argument applies to “independent” agencies in the US government. Too far removed from the voters means that the only real check on their behavior is their own good will, wisdom, and expertise.

While I offer no opinion on Ms. Slaughter’s abilities or performance, I am quite skeptical of the notion of handing unaccountable power to bureaucrats, no matter how “qualified” or well-intentioned.