The Constitution’s Overlooked Road Map for an Accountable Bureaucracy (Alison Somin, 1/18/24, Discourse)

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.

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.

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.