Josh Chafetz (Georgetown University Law Center) has posted Of Multiplicity and Accountability, Building Democratic Capacity: Essays on Administrative Law’s Futures (Blake Emerson, Joshua Macey, Sabeel Rahman & Bijal Shah eds., Cambridge University Press, forthcoming) on SSRN. Here is the abstract:
Unitary executive theory has, since Myers v. United States, been premised on a conception of democratic accountability. On this view, the president is democratically accountable; bureaucrats are not. Therefore, to preserve democratic governance, the president needs to be able to control—and to dismiss—bureaucrats, statutory tenure protections notwithstanding.
But this monistic conception of accountability, running from bureaucrats to the people through the president alone, is not the Constitution’s conception of accountability. Indeed, an examination of both constitutional structure and contemporary constitutional practice reveals that the president is far less of an avatar of the national people than unitarians assert. Instead, the Constitution embodies a more robust conception of democratic accountability, in which different institutions, each of which is by itself only imperfectly representative of the people, contest with one another for policymaking authority. Democratic accountability, far from being instantiated in a single institution like the presidency, arises out of the interactions among these institutions.
When Congress structures the bureaucracy in a certain way—for instance, by giving tenure protections to its leadership—that is an exercise of the Constitution’s thick conception of accountability. By contrast, when presidents are permitted unilaterally to ignore that structuring, it is a scaling back and stripping down of accountability.
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