Presidential Accountability and Democratic Representation in Executive Agencies

• In Event: Aggrandizement of the Executive Power: Causes and Consequences

Abstract

In recent years the US Supreme Court has signaled its willingness to revisit century-old constitutional standards for the creation and empowerment of Executive agencies. While the specific areas vary—judicial deference to agency mandate interpretation, executive control over appointment and removal, funding mechanisms, and limits on delegation—the general question is presented in terms of a claim that the long-accepted standards are too permissive to comport with key constitutional principles. This trend continues in the upcoming term with cases challenging independent funding mechanisms and adjudications in Article II courts. It should be noted that these are not Chevron¬-style cases about judicial review of rulemaking, they are cases that address the basic role of the executive branch in the actions of independent agencies, a system of governance created more than a century ago and unchallenged since the 1930s.

The principles involved in these current and recent , in turn, may be described as falling into a first and a second-order principle. The first-order principle is separation of powers and its cousin concept, checks and balances. A variety of principles of constitutional interpretation are brought to bear in support of one or another claim about the proper understanding of these first order principles in the process of judicial adjudication of cases. This paper, however, focuses on the second order principle, starting with the assertion that in the context of executive agencies discussions of constitutional first order principles, second order principles of democratic representation are at work. Specifically, claims about accountability and authorization—core principles of democratic representation—are both explicitly and implicitly at work in arguments about constitutional limitations on independent executive agencies.

This paper explores the differences among theories of executive action from the perspective of democratic theory, and specifically the nature of executive agencies as democratic institutions. Specifically, this paper asks what theories of democratic representation that are at work in recent arguments about independent agencies such as the Consumer Finance Protection. Bureau. The meaning of political representation has been so explored as to become almost infinitely flexible, but for this discussion I will rely on a few well-recognized categories: delegate vs. trustee, direct vs. indirect, and claims of both representation and constituency—across the axes of authorization and accountability. The goal is to identify connections between arguments about executive authority and models of democratic representation. If arguments depend on tacit or explicit invocations of models of representation, the potential inadequacy or inappropriateness of those models is a basis for critique. Conversely, to the extent that unacceptable (for whatever reason) theories concerning executive action imply principles of representation, there is good reason to be critical of those theories of representation. Through this examination, the goal of this paper is to show how fundamental questions of democratic legitimacy are at work in technical discussions of executive policymaking under the US Constitution.

Author

• Howard Schweber, University of Wisconsin, Madison