Liberty requires accountability: checking delegations to independent agencies.

• Author: Casazza, David

Introduction

"Congress cannot delegate legislative power to the President to exercise an unfettered discretion to make whatever laws he thinks may be needed or advisable." (1) By restricting Congress's ability to grant broad legislative power to the President or his unelected agents, the nondelegation doctrine holds that legislative power must remain where the Constitution places it--in Congress. The doctrine is both textual and structural, based on the Vesting Clause in Article I (2) and the separation of powers interests served by the requirement of bicameralism and presentment. (3) Beneath these interests lies a deeper foundational principle: The people must retain power over those who govern society; this is possible only if the power to make rules is restricted to the parts of the government that are selected and removed by the people. (4)

Promoting political accountability is a central feature of American political thought dating back to the Founding period, finding expression in the Declaration of Independence, The Federalist and the works that influenced the founders. The Court's permissive approach to delegation allows Congress to transfer political accountability for the details of regulations to the executive. The Court's acceptance of strict limits on the President's removal power, however, has severely curtailed the political accountability of independent agencies through the executive. As a result, independent agencies comprising a large portion of the federal regulatory state operate in isolation, severed from any close link to the people. This Note argues that the isolation of those agencies through removal protection renders nondelegation concerns particularly acute and suggests that, in combination, (5) delegated rulemaking authority and for-cause removal protections unconstitutionally undermine political accountability and violate the separation of powers. (6)

Federal courts have been sporadic and uncertain in defending political accountability. The Supreme Court has defended the people's powers of election, (7) but it has done little to ensure that those elected by the people are the principle architects of government policy. The nondelegation doctrine, addressing precisely this concern, has been less than rigorously enforced. After a one-two nondelegation punch in 1935, (8) the doctrine has disappeared almost entirely from our jurisprudence. (9)

The death of nondelegation has shifted the bulk of the government's business from Congress to federal regulatory agencies. Every year, the growth of Statutes at Large is dwarfed by the expansion of the Federal Register. America is now a nation governed largely by the duly appointed administrators of the people rather than the duly elected representatives of the people. While the President retains direct oversight of and at-will dismissal power over many agency heads, a growing number of federal officials may only be removed by the President for cause. Agency heads insulated from presidential removal govern many of the most important federal bodies with regulatory power over immense stretches of the American citizenry. (10) Removal power restrictions have the apparent virtue of insulating agency actions from untoward political influence, but they also insulate agency actions from political accountability. The Supreme Court has broadly accepted Congress's power to impose statutory limitations on the President's power to remove public officials. (11) While the Court has signaled some willingness to restrict removal limitations, (12) it has not yet returned to the nearly unlimited removal authority declared by the first case on the subject. (13)

This Note argues that Congress's and the President's decision to vest policymaking authority in independent agencies unconstitutionally deprives the people of their ability to hold government to account and violates the structure of separated and enumerated powers created by Articles I and II. The first Section will explore political accountability as a concept, locating its roots in the Founding before exploring the particular problems of political unaccountability raised by independent agencies. The second Section will show that the Court's less-than-rigorous nondelegation doctrine has severed the ties of political accountability running from the people through Congress to independent agencies. The third section will detail how the Court's removal power jurisprudence eliminates the ties of political accountability running from the people through the President to independent agencies. (14)

The Note will close by considering several possible solutions to the crisis of accountability. First, we will examine whether a higher standard than a mere "intelligible principle" should be required for permissible delegations. Next, we will consider whether the President should test the boundaries of removal protections by arguing that a consistent pattern of actions contrary to the President's policy preferences constitutes cause for removal. The Note will close by suggesting that Congress and the President should not delegate policymaking power, that is, the power to promulgate regulations or to conduct adjudications before administrative law judges or agency commissioners, to an agency whose head is protected from at will removal. They may give an agency policymaking power, or they may insulate the agency head from removal, but they should not do both. Under the proposed doctrine, independent agencies may continue to seek civil or criminal enforcement through proceedings in federal district courts but could not use the mechanisms of sections 553, 554, 556, and 557 of the Administrative Procedure Act. (15)

1. POLITICAL ACCOUNTABILITY IN THE AMERICAN CONSTITUTIONAL TRADITION

   Political accountability lies at the very heart of the republican government envisioned by the Founding generation and carried into practice by the Constitution. The Founders argued that in order for republican governance to succeed, the governors must be selected by the governed and held to account by them. (16) In such a system, the people could effect their political will by electing those who promised to support favored policies and replacing those members of the government who imposed laws that the people did not support.

   For the purposes of this Note, "political accountability" will be used to describe the general proposition that those who make and implement the laws governing society should be responsive to the preferences of the people. (17) This general proposition divides into two distinct and equally important halves. The first, which we will call positive accountability, requires that the people are able to put into power policymakers who will implement the preferred policies of the people. The second, which we will call negative accountability, requires that people are able to associate the policies enacted by the government with particular members of the government and to ascribe the associated praise or blame for that policy to the relevant member of government. The former is the creative aspect of political accountability. It allows majorities to create the laws they desire in society. (18) The latter is the critical or destructive aspect of political accountability. It allows majorities to punish and replace lawmakers who put in place unpopular or unsuccessful policies.

   The value of political accountability deeply informed the Founding generation. The Declaration of Independence listed among its grievances a number of royal actions undermining both the positive and negative aspects of political accountability. The drafters protested King George's denial of "the right of Representation in the Legislature, a Right inestimable to [the American people]" (19); his dissolution of legislatures, refusal to assent to their laws, and his calling of legislative sessions in remote or unusual places (20); and his intent to "subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation." (21) At its most fundamental level, the American Revolution was aimed at removing the barriers between the rulers and the ruled and enabling the people to govern themselves. (22)

   A decade after the Revolution, the ratification debates focused, in part, on whether the President and members of Congress were sufficiently accountable to the people. (23) Commentators on both sides debated whether institutions like the Senate, (24) the Electoral College, (25) and the apportionment of congressional districts (26) unduly restrained the ability of the majority to make their will heard. Opponents of the new Constitution argued that these provisions created too great a division between the federal government and the people. While proponents of the Constitution cautioned against an overreliance on the will of the majority, (27) they did not wholly dismiss the principle of majority rule. Rather, they argued that it needed to be tempered and that tempering was best achieved not by having unelected or irremovable officials but rather by dividing the legislature into two Houses, (28) overlaying various electoral districts (for example, having each voter represented by a Congressman and Senator), (29) vesting in the President the power to veto legislation, (30) and dividing power across multiple branches of the federal government. (31)

   The republican focus of the new Constitution recognized that, while direct democracy was an undesirable system, (32) government was only tolerable if lawmakers were answerable to the people. Hamilton defended the unitary Presidency by emphasizing that "plurality in the executive ... tends to conceal faults and destroy responsibility." (33) James Madison, in The Federalist No. 63, was one of the first writers to use "responsibility" to mean a duty or obligation owed by the representative to the people; (34) his "responsibility" was wholly intertwined...