Daniel E. Walters (Texas A&M University School of Law) has posted Getting Real About Removal and Democratic Accountability (Duke Law Journal, forthcoming) on SSRN. Here is the abstract:
The Supreme Court’s recent decision in Trump v. Slaughter not only caps off a decades-in-the-making turn in the law of removal, but also represents the apotheosis of a style of separation of powers jurisprudence grounded in claims about democratic accountability. The newly minted power of the President to remove agency heads at will, we are told, preserves a “chain of dependence” that ensures that the administrative state is accountable to the President, and thereby also accountable to the people via presidential election. This essay takes stock of the Court’s repeated use of this distinctly democratic rationale.
First, it shows why the democratic accountability rationale might be important in filling a reasoning gap left by the Court’s more originalist and formalist methods. Indefensible carveouts for the Federal Reserve Board and other limitations starkly reveal the limits of these legal rationales; something more must be going on to justify, practically, the choices the Court has made.
Second, it argues that the Court’s recognition of a plenary removal power is in fact better explained by assuming the justices mean what they say: that the exclusive way to improve democratic accountability is by reducing democratic accountability to electoral accountability. It identifies the core elements of the Court’s democratic vision and treats them as testable, and contestable, hypotheses about how a democracy like ours could and should operate.
Third, and, perhaps most importantly, the essay shows how the Court’s democratic vision for the country fails on empirical and normative grounds: drawing on social science and democratic theory, it shows that the Court’s theory that presidential removal enhances administrative accountability to the electorate is, at a minimum, unrealistic, myopic, and underspecified. Ultimately, the essay concludes that the Court’s project, even if oriented towards a legitimate object, is a serious misstep that will likely render our political and administrative system less, not more, democratic.
Highly Recommended!
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