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America’s Ruling Class

Some excellent books have been written on the separate—and seemingly unrelated—issues of taming the administrative state, reforming our civil justice system, reducing the discretion of prosecutors who wield enormous power due to the over-criminalization of behavior, and reversing the trend of state and local officials attempting to dictate national policy. In his ambitious new book, The Unelected, Manhattan Institute senior fellow James Copland combines those topics under the general theme of documenting “how an unaccountable elite is governing America”—a phrase that serves as the book’s subtitle. This is a timely subject, deeply rooted in the principles of representative self-government, and one that is vital to the future of the United States as a constitutional republic subject to the rule of law.

“Consent of the Governed” No More

The Founders’ constitutional design, Copland reminds us, “was predicated on accountability to the voting public.” This was essential to ensure the “consent of the governed.” Since the Constitutional Convention was held in 1787, and particularly in the wake of the New Deal, we have significantly departed from this ideal. Government has greatly expanded in size and power, and—more importantly—“governmental accountability to the public has been substantially eroded.” In Copland’s telling, the unelected, unaccountable entities exercising control over the polity consist of four components: rulemakers, enforcers, litigators, and what he calls the “new antifederalists.”

“Rulemakers” is Copland’s shorthand for the “gaggle of federal agencies staffed by permanent, professional government bureaucrats” (of whom Dr. Anthony Fauci is currently the most well-known example), responsible for enacting 98 percent of the estimated 300,000 federal crimes on the books. Copland explains in chapters 1-3 how we arrived at the modern administrative state, in which “[u]nelected bureaucrats write the rules, often acting in ways that were unauthorized by Congress, are unaccountable to the president, and are essentially unreviewable by the courts.”

“Enforcers” consist of the government officials (prosecutors and agencies with sometimes-draconian civil enforcement powers) who exercise nearly-limitless discretion to determine whether individuals, businesses, and nonprofit entities are in “compliance” with this vast and amorphous body of regulations. The consequences of a violation—even wholly inadvertent—can be fines, imprisonment, ruinous legal expenses, or the crippling loss of federal funding, reimbursement, or regulatory approval. Enforcers possess so much power that merely threatening to use it can cause entire industries (such as higher education, in the case of the Obama administration’s Title IX “guidance”) to cower.  

“When there are as many rules as there are today,” Copland points out, “and so many of the prohibitions in the rulebook go beyond intuitively bad conduct, it is impossible for individuals and small businesses to know how to comply.” This places staggering power in the hands of unelected government agents, who exercise unfettered discretion and sometimes act arbitrarily—and even render decisions retroactively. Large corporations can afford the immense sums necessary for compliance and legal expenses; individuals and small businesses generally do not. Copland covers this in chapter 4-6.

Unlike some public law scholars, Copland (who is Director of Legal Policy at MI) does not overlook the role of our legal system in the transformation of our self-governing republic into a caste-like society ruled by an unaccountable clerisy. Copland criticizes “litigators” as an elite group of unelected actors, on par with the administrative state. Defenders of litigation sometimes try to justify it as a form of “private enforcement,” akin to the free market, but Copland correctly notes that our litigation system is far removed from markets: “Markets involve consensual transactions, in which each party to the transaction agrees to a deal. A lawsuit, in contrast, entails one party taking from another, unwilling party, who is engaged with the plaintiff only because the government forces the issue.”

Copland’s disdain for litigators—especially those specializing in class actions—is unsparing. Most litigators, he says, are “simply venal,” motivated by money rather than ideology, unlike rulemakers and enforcers who tend to be “true believers” (although some litigators are both mercenaries and ideologues). He mocks the American civil justice system for its inefficiency, unfairness, capriciousness, and susceptibility to fraud and manipulation. Copland heaps scorn on “contingent fee” arrangements, the so-called American Rule requiring litigants to bear their own attorneys’ fees, class actions, mass tort litigation, attorney advertising, junk science, the cy pres doctrine, and costly, often abusive pre-trial discovery. His revealing overview of the growth of the plaintiffs’ personal injury bar since WWII, drawing on the “Trial Lawyers, Inc.” project he oversaw at MI, is excellent.

Proponents of tort reform, and fans of Walter Olson’s work in this area, will find much to enjoy in chapters 7-10.

Copland is correct to conclude that meaningful reform—at least politically—will require a cultural shift.

Copland’s fourth category—“new antifederalists”—is exemplified by the 1990s-era litigation by state governments against the tobacco companies. But the definition is broad enough to include activist state attorneys general who meddle in other states’ affairs (or national policy) with lawsuits seeking injunctive relief; orchestrated, forum-shopped state court tort litigation against out-of-state defendants; politically-motivated lawfare against targeted industries by big-city mayors (such as Bill de Blasio’s climate change lawsuit against oil companies); public employee pension fund shenanigans; and the like. (New York Attorney General Letitia James’s lawsuit to dissolve the NRA would likely qualify.) National policy should be made—democratically—at the federal level, not ad hoc on a state or local basis.

Copland acknowledges that in most instances “antifederalist” litigation is commenced by an elected official, but the insult to representative government lies in the fact that “nobody in Nashville or Fargo or Phoenix voted for the mayor of New York City; and no one in Alabama or Montana or Indiana voted for the attorney general of California.” Of his four categories, this one least resembles the others. Chapters 11-13, while interesting and informative, are less cohesive than the rest of the book.

An Effective Skewering

Copland’s engaging critique is thorough and thoughtful enough to satisfy policy wonks, but is also laced with interesting vignettes about actual Americans whose lives have been affected by the unaccountable elites. We read about the travails of Bobby Unser, John Rapanos, USC football star Matt Boermeester, and other Americans whose lives were disrupted—and in some cases ruined—by unaccountable elites. These real-life stories may broaden the appeal of The Unelected, and make its message resonate with a popular audience in a way that a purely scholarly tome could not. Toggling back and forth between The Federalist Papers and yesterday’s headlines, Copland brings the concepts to life, energizing them further with pop culture references and allusions to movies and television shows not often seen in legal books.

Although Copland is a Yale-trained lawyer, his analysis is refreshingly free of jargon and puckishly irreverent toward the legal profession he effectively skewers. The often-arcane terminology of administrative law, civil procedure, and litigation is broken down and clearly explained in layman’s terms. The Unelected contains a thumbnail history of the leading Supreme Court cases, the development of administrative law, and the evolution of the modern regulatory state. Copland offers the clearest and most succinct summary of these complicated subjects that I have ever seen.

Copland connects the dots among his superficially disparate categories fairly well. If anything seems “missing” from this book on unelected elites governing America, it is the scourge of judicial activism, as to which The Unelected is strangely silent. (Hopefully Copland is saving that critically-important topic for his next book.) Legal history can be painful to read: often muddled and—worse—boring. Copland manages to deliver an account that is neither. For example, his treatment of the derivation of the American Rule (a topic that I addressed with less verve here) is concise and compelling. The advance copy I reviewed contained no notes, bibliography, or index, so I cannot comment on Copland’s sources or the breadth of his research.

In a survey of the type Copland undertakes, it is always easier to identify problems than it is to propose realistic solutions, and—alas—The Unelected is no exception. The final chapter, entitled “Restoring the Republic,” is somewhat anticlimactic. “A return to the limited government envisioned [by the Founders] in 1787 is highly unlikely, whatever its substantive merits” is hardly a call to arms, or a roadmap to reform. Readers hoping for radical prescriptions will be disappointed. Copland does not “stand athwart history, yelling Stop.” Instead, he concedes that the dysfunctional systems he so ably chronicles are “difficult to undo in [their] entirety.”

In contrast to his robust (and jargon-free) critique in earlier chapters, Copland offers cautious (and unavoidably technical) suggestions: judicial limits on delegation, congressional reforms along the lines of the Regulations from the Executive in Need of Scrutiny (REINS) Act, etc. Solutions to entrenched, multifaceted problems are complicated, especially when they require reforms by the states as well as the federal government, and coordinated action by different branches of government. Copland is correct to conclude that meaningful reform—at least politically—will require a cultural shift. “Broad social consensus” must accompany sweeping changes, he notes.

Perhaps Copland could devote a future book to outlining a comprehensive blueprint for reform, directed at specialists. There are many competing proposals, and even approaches. Copland has the expertise (and credibility) to evaluate them. I concur with his assessment that “The first step in this process is understanding the forces that underlie the regulatory behemoth, which this book has endeavored to elucidate.”

It should be clear to the reader that I admire—and recommend—The Unelected, but in fairness I found Copland’s discussion of the Covid-19 virus in the book’s Introduction and Epilogue to be a distraction. As with many crises throughout history, perceived exigencies often provoke bad decisions, some of which have lasting consequences. It will likely take the benefit of hindsight to put the current pandemic in perspective, and Copland’s understandable desire to be topical by commenting on events still unfolding runs the risk that his insights will be dated (or off-base). At an appropriate time, a detailed post mortem would make an excellent sequel to The Unelected—a case study of how the unaccountable “experts” handled the crisis.

Reader Discussion

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on September 08, 2020 at 09:48:04 am

If Copland largely ignores "scourge of judicial activism," then his book misses the single most important source of the ills he discusses--the far-reaching usurpation of power by the judiciary starting with Brown.

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John Braeman
on September 08, 2020 at 21:17:59 pm

For some reason I was reminded of Charles Murray's book By the People: Rebuilding Liberty Without Permission, and his proposal for selective civil disobedience to cause SCOTUS (and the bureaucracy) to rule more towards liberty and away from "arbitrary and capricious" positions. I am curious if any of the lawyers here have an opinion pro or con on Murray's thesis.
I also found L&L has a July 2915 book review here: https://lawliberty.org/book-review/why-charles-murrays-attack-on-the-regulatory-state-isnt-enough/ .

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R2L
on September 08, 2020 at 21:20:57 pm

July 2015

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R2L
on September 09, 2020 at 10:41:02 am

And I would argue that only the Supreme Court, which essentially got us into this mess, can get us out. Only a Court composed of an originalist majority unafraid to use its majority in the same manner as prior liberal Courts used theirs can cut back, significantly and quickly, the scope and reach of the national government.

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QET
on September 08, 2020 at 10:53:00 am

Yes, there is room for more "realistic" and "reasonable" and establishment oriented voices that nonetheless call for change. But what exactly is realistic and reasonable? Well, it is, of necessity, contextual. And in this present environment anything less than a call to arms is tepid and too wonkish, lacking any real verve or sanguine quality whatsoever. What is an appropriate call to arms in this present, pressing environment? Firstly, that environment has to be understood, has to be known, assessed, to the best of our abilities; avoiding both understatement and avoiding exaggeration, unnecessarily reactionary and emotivist sensibilities as well. I would suggest M. Anton's A Tyranny Perpetual and Universal?, if read and approached in the manner intended, tentatively but soberly and with requisite gravity, places things in their proper, elemental setting. Whatever anyone decides is a proper understanding of a call to arms at the present juncture should be based upon a full appreciation of Anton's intent. Anything less than that and you risk being, advertently or inadvertently, a part of the problem. It's unavoidable.

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Michael Bond
on September 08, 2020 at 21:10:26 pm

The essay by Anton is sobering and deserves a wider reading than it may find. He bridges the divide between "the creation of a totalitarian state is improbable" to "if these things happen it is possible".

This video ( https://youtu.be/bIN2XdB_axc ) of Anton interviewing John Marini, another analyst of the administrative state's impact on our liberty and constitutional order, may be of interest. I don't know how Marini's credentials match up to Pulliam's assessment of Copeland, but it appears he has been sounding an alarm against the administrative state for some time.

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R2L
on September 08, 2020 at 16:31:45 pm

Just a technical point: Pulliam wrote "... Bill de Blasio’s climate change lawsuit against oil companies ..." but I don't think that's right. Pulliam is probably thinking of former NY Attorney General Eric Schneiderman.

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Paul M Nachman
on September 18, 2020 at 03:53:40 am

Is it not time for the Administrative State to have its own Article I Supreme Court? It would handle appeals from Article I judges as well as challenges to new rulemaking as well as provide for impeachment hearings for wrongdoing or misconduct in a civil court and not a criminal court hearing. Alexander Hamilton created the original administrative agencies by taking over the post office and customs. Later the Coast Guard and Mint were added. One could suggest they were his tool to support the Federal Government with appointments to the staffs of each agency, but open to a little overlooked corruption at their inception. Later the National Bank was to show a lot of bribery while Justice John Marshall overlooked these facts. Article I judicial decisions would be appealable to new, changeable number of judges. This Petite Supreme Court would start with nine justices. It would also hear of misconduct or malfeasance in civically and not criminally guided hearings as in the present constitution. Rulemaking challenges would also be heard. Now Alexander Hamilton was well aware of the checks and balances system of government. Here the rulemaking decisions would be appealable to the legislature for an up or down decision that could utilize a veto or allow new rulemaking. Here challenges to Article I judges could go to the Executive Branch for review. Changes could be returned to the Administrative Agency or sent to the Article III Supreme Court on appeal. It is not clear why such an inferior court was not previously considered as the Court of Appeals for Washington, D.C., has been inundated with cases.

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LEONARD FRIEDMAN
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on September 08, 2020 at 08:33:15 am

[…] essay first appeared in Law & Liberty, on September 8, 2020 (here). Thanks to Power Line and Instapundit […]

on September 16, 2020 at 16:01:36 pm

[…] America’s Ruling Class by Mark Pulliam […]

on September 17, 2020 at 08:22:49 am

[…] be constantly resisted if constitutional government is to avoid being overwhelmed. In our time, the administrative state is immense, powerful, and largely unaccountable. Citizens who value freedom should stand in support […]

on September 17, 2020 at 08:49:29 am

[…] be constantly resisted if constitutional government is to avoid being overwhelmed. In our time, the administrative state is immense, powerful, and largely unaccountable. Citizens who value freedom should stand in support […]

on September 17, 2020 at 10:17:41 am

[…] be constantly resisted if constitutional government is to avoid being overwhelmed. In our time, the administrative state is immense, powerful, and largely unaccountable. Citizens who value freedom should stand in support […]

on September 18, 2020 at 20:04:07 pm

[…] constantly resisted if constitutional government is to avoid being overwhelmed. In our time, the administrative state is immense, powerful, and largely unaccountable. Citizens who value freedom should stand in […]

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.