ICYMI: Leader McConnell in The Wall Street Journal On Liberal Efforts To Undermine Democratic Accountability

WASHINGTON, D.C. – The following op-ed by U.S. Senate Republican Leader Mitch McConnell (R-KY) was published in today’s edition of the Wall Street Journal:

Democrats like to say that “democracy is at stake” in November. That may be true, but not in the way they think. Across all three branches of the federal government, liberals are working to undermine democratic accountability over their exercise of power. Their philosophy of the administrative state has one unifying thread: the abrogation of democratic legitimacy in deference to unelected bureaucrats.

Let’s start with the Supreme Court. I recently took two of my colleagues to task for improperly interfering in litigation by demanding that Chief Justice John Roberts force Justice Samuel Alito to recuse himself from cases they didn’t want him to hear. As the court has maintained for decades, recusal is a judicial act. It isn’t, as Sen. Sheldon Whitehouse (D., R.I.) said in response to my criticisms, “an administrative matter.”

This misunderstanding suffuses efforts to force ethics “reform” on the high court. Liberals complain that the court’s binding ethics rules lack an “enforcement mechanism” to ensure recusal when they want it. But this complaint would throw the Constitution out the window.

Article III vests “the judicial power” in the court, not in some novel administrative body or committee. It is therefore up to the justices, appointed by the president with the Senate’s advice and consent, to decide whether and how to hear cases.

In other words, the court rightly vests judicial power in its democratically legitimate members as the Constitution requires. Democrats instead want a bureaucracy to “administer” it.

This misbegotten trust in bureaucrats also undermines democratic legitimacy in the executive branch. Attorney General Merrick Garland has appointed three different “special counsels” who operate outside the normal chain of command at the Justice Department to ensure prosecutorial “independence.”

I don’t doubt Mr. Garland’s sincerity that moving prosecutors outside the chain of command makes them “independent.” The problem is the underlying assumption that prosecutors should be independent at all. Such an arrangement insulates them from democratic accountability.

The president is the sole repository of “the executive power” under Article II. When it comes to prosecutions, that power is exercised through an attorney general who is selected by the president and subject to Senate confirmation.

What gives federal prosecution legitimacy is that it is vested in an elected branch of government. Up and down the chain of command in the Justice Department, decisions are, and should be, made by people responsive to the president and Senate.

It might seem that prosecutions with acute political consequences would challenge this legitimacy. The solution, however, isn’t to outsource the political decisions to a prosecutorial bureaucrat. The buck stops with the attorney general because he, through the president, is accountable to voters. Liberals seem to struggle with this reality.

Unfortunately, we see this dynamic in the legislative branch, too. Soon, in Loper Bright Enterprises v. Raimondo, the Supreme Court will address the problem of Chevron deference, the idea that if a federal agency argues a statute is “ambiguous” it can fill in the legislative blanks.

Former Solicitor General Paul Clement observed during oral argument that while Chevron deference might have been well-intended when the court adopted it in 1984, in practice it has given Congress an incentive to leave the hard work of legislating to bureaucrats.

Article I, in contrast, entrusts Congress with “all legislative power.” As with the president’s executive power and the Supreme Court’s judicial power, only Congress has legislative power. And yet for decades, Congress has been content to outsource that power to an administrative state that relies on Chevron to defend its power grabs in court. This is why I filed a brief in support of overturning Chevron deference.

Liberals disagree. Mr. Whitehouse also filed a brief and, consistent with his view that bureaucrats should usurp the judicial power, argued that they should continue to usurp the legislative power too. You see, “the purported ‘problem’ ”—Chevron deference—“is actually a value for the general public.”

The Constitution vests each branch of the federal government with an exclusive power, responsive to the people in elections. In each branch, liberals seek to remove that power from democratic accountability and vest it in unelected bureaucrats. This practice might come from a good-faith trust in “experts,” or a sincere belief that sound policy is too valuable to risk in elections. But at its core, it is a rejection of democratic accountability in favor of the administrative state.

I, for one, think we should continue working to reinforce the Constitution and the trust it places in the American people.


Related Issues: Supreme Court