Chevron and Auer undermine the rule of law.
With Justice Kavanaugh’s confirmation and the Senate staying in Republican hands, complaints abound about the “undemocratic” Senate. The thing is, there is a much more undemocratic branch of the government. And, no, I’m not talking about the Supreme Court. No elected official hires, confirms, or fires officials in this branch. Ever. Yet these government officials wield huge power over the everyday lives of Americans. These are executive branch officials who are not presidential appointees.
The number is huge. According to the US Office of Personnel Management, as of 2014, employment in the national government’s civilian agencies (that is, excluding defense) topped 1.3 million employees. The president appoints around 4,000 of this number. If we include state and local government employees (and exclude all teachers, in both K-12 and in state colleges and universities), local, state and national government employment exceeds 5 million as of 2014. Almost all of this employment subsists in the governments’ executive branches.
To be sure, it’s difficult to imagine cashiering the merit system in the national and state governments’ executive branches and moving back to something closer to a patronage system (although proposals exist). But that’s the point: If “democratic” governance is an absolute standard of political good and bad, then the part of government that most offends against that standard today is neither the Senate nor the courts—it is the vast part of the executive branch that is neither elected nor answers to elected officials. To complain about the elected U.S. Senate being “undemocratic” while ignoring the nation’s (and states’) unelected executive bureaucracies strains at the gnat while swallowing the camel.
Immunizing the vast part of the executive branch from accountability to elected officials was the manifest purpose of civil service reform and the move to the merit system in the late 19th century and the first half of the 20th century. This anti-democratic move was a hallmark of the Progressive movement over a century ago. Its anti-democratic implication is ironic given Progressive initiatives to make the Senate more democratic (through popular elections) and Progressive criticism of “undemocratic” judges.
Today, however, the U.S. Senate is drenched in democracy compared to the executive branch, 99.9 percent of which is now immunized from any electoral accountability. It’s hard to take seriously liberal and left criticism of an “undemocratic Senate” in the face of stony silence regarding a vastly less democratic executive bureaucracy.
Electoral accountability of the executive branch, the whole executive branch, is the reason the Constitution vests executive power in an elected president in the first place. Article II begins with the vestment clause, the straight-forward instruction that “The executive Power shall be vested in a President of the United States of America.”
In a 1789 speech in Congress on the president’s removal power, James Madison starts his discussion of constitutional principles stressing the significance that the president (“the first magistrate”) is elected by the people. The Constitution’s vestment clause, he suggests, is the mode by which the Constitution links the executive branch to the nation’s voters.
The elected president is the institutional linchpin by which unelected executive branch officials are held accountable to voters. That mechanism works, however, only if the president can hire and fire executive branch officials.
The Constitution, Madison observes, establishes that the president “should be responsible for the executive department.” He notes the critical connection between the president’s authority over executive branch officials and the president’s accountability before voters. “So far therefore as we do not make the officers who are to aid him in the duties of that department responsible to him, he is not responsible to his country.”
To be sure, Madison is speaking specifically about cabinet officials (the bill being debated would require Senate approval for the president to dismiss cabinet officials). The principles Madison identifies, however, extend to executive officials throughout the branch. Aside from textually stated exceptions to the president’s executive power (Madison mentions the Senate confirmation power), Madison reads the Constitution to mean “the legislature has no right to diminish or modify [the president’s] executive authority.
The power to hire and fire executive branch officials, except where the Constitution provides otherwise, is for Madison an essential feature of executive power: “I conceive that if any power whatsoever is in its nature executive it is the power of appointing, overseeing, and controlling those who execute the laws.”
To be sure, Madison remarks the executive trust is a “high one,” even “a dangerous one.” After a century of expanding executive power, Americans can easily harbor reservations about expanding this power any further. Especially if we were to re-recognize that vesting executive power in the president also necessarily means growing his control of the executive bureaucracy, those reservations might grow.
Madison responds, however, “I am not sure but it will be safer here than placed where some gentlemen suppose it ought to be.” Perhaps part and parcel with re-recognizing the president’s full constitutional power over the executive branch would be a broader understanding of the impeachment power. Madison acknowledges, “I own that I am not afraid to place my confidence in [the president], especially when I know he is impeachable for any crime or misdemeanor, before the Senate, at all time, and that at all events he is impeachable before the community at large every four years.”
We can and should worry about the size, scope and exercise of the president’s executive power. But we cannot do so by throwing away fundamental constitutional texts or principles. Recognizing the president’s executive authority extends over the entire executive branch is not merely a legal formalism. It is the very means by which the Constitution extends democratic control and accountability over the executive branch, over the whole executive branch.