In recent years, there has been a flurry of legal and academic writing on our modern administrative state. Noteworthy contributions include Professor Richard Epstein’s The Dubious Morality of Modern Administrative Law and Peter J. Wallison’s Judicial Fortitude: The Last Chance to Rein in the Administrative State. In The Unelected: How an Unaccountable Elite is Governing America, James R. Copland, a Senior Fellow and Director of Legal Policy at the Manhattan Institute for Policy, continues that dialogue and provides a sharp, well-reasoned critique of our expansive national government.

Much of Copland’s analysis traces a now familiar path, his threshold critique being that the national government’s scope has expanded by many orders of magnitude, resulting in trillions of dollars in expenditures. That expansion has included increasing intrusions into broad sectors of our economy and society—but without accountability to the electorate. Congress delegates its lawmaking authority to the executive branch, whose unelected officers expand the scope of agency power, but with limited oversight. The agencies accomplish this expansion not only through rulemaking in which powerful private interests can have influence, but also through “guidance” letters that compel compliance with agency decisions, and enforcement actions that coerce regulated entities to agree to settlements that sub silentio extend agency authority. Copland, in turn, criticizes the courts for undue deference to agency decisions, abnegating their duty to apply the law and rigorously review those decisions.

Copland also takes aim at other public and private actors who are not politically accountable, but who make policy, particularly in economic activities. Prosecutors use litigation settlements to compel companies to refrain from engaging in activities that are not illegal by statute. Our modern litigation system enables plaintiffs’ attorneys to pursue mass tort and products liability class actions to expensive settlements against private corporations that essentially regulate their businesses, but with little or no public input.

How can we return to more limited government? Copland urges a multifaceted approach to rein in the powers of Congress, agencies, and other groups that make policy. Copland recognizes that requiring legislators to legislate require ingenuity and determination, and that some delegation to agencies is inevitable in our complex society. Litigation reforms will be challenging. A return to robust federalism also is somewhat in tension with the power state attorneys general wield to leverage litigation to regulate interstate commerce.

An intriguing question—necessarily left unanswered in Copland’s 2020 book—is whether our nation’s experience with the COVID-19 pandemic and the government’s multiform responses to it will provide broader lessons for charting the correct course on government intervention in our society. This book is a helpful addition to that public policy analysis.

 

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. To join the debate, please email us at [email protected].