Is the Center of Power in Washington Transforming?

• Author: McKinley, Vern

The Unelected: How an Unaccountable Elite Is Governing America

By James R. Copland

304 pp.; Encounter Books, 2020

Speculation is rampant among Supreme Court watchers about how the elevation of Amy Coney Barrett, along with President Donald Trump's other two appointments, will affect the alignment of voting blocks of justices. One area of the law that this realignment could affect is the direction of federal governance through administrative law.

The Unelected is a historical, legal, and policy review of how far modern administrative law and the administrative state have strayed from a system amenable to a limited and accountable government reliant on enumerated powers and anchored checks and balances. The book was released well before Justice Ruth Bader Ginsburg's seat on the Court became one of the key political issues of the 2020 election, but it does not take much imagination to get a sense from the book that the new justices will have a substantial effect on regulated businesses, large and small alike.

Copland is director of legal policy at the Manhattan Institute and The Unelected is his first book. The title's reference is to "a host of unelected actors with government roles," drawing attention to how far the "modern regulatory state," as Copland calls it, has come unhinged from the "accountability to the voting public" model embedded in the philosophy of the Founding Fathers and the Constitution.

I previously reviewed Peter Wallison's Judicial Fortitude ("Doing Damage to the Deference Doctrine," Summer 2019), which shares the same publisher as The Unelected, Encounter Books. Wallison applied similar scrutiny to the rise of the administrative/ regulatory state, although Wallison and Copland take different approaches in their critiques.

Meet the unelected/ Early on, Copland writes, "As this book goes to press, America is facing a viral pandemic at least as large as any we've seen in a hundred years." He notes that one of the members of the "unelected shadow government" he describes in the book is Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, and that two of the federal agencies at the forefront of the response to the pandemic are the Centers for Disease Control and Prevention and the Food and Drug Administration. He faults both agencies for having "thwarted the creation of an efficient testing regime," saying that "they did not exercise [their] authority with any haste."

Those agencies are...