Jackson Purchase News

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 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 Chevron deference—the idea that if a federal agency argues a statute is “ambiguous,” it can fill in legislative blanks.

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

Article I entrusts Congress with “all legislative power.” As with presidential executive power and Supreme Court judicial power, only Congress holds legislative power. Yet for decades Congress has outsourced this power to an administrative state relying on Chevron for its authority grabs in court—hence why I filed a brief supporting overturning Chevron deference.

Liberals disagree; Mr. Whitehouse also filed a brief arguing bureaucrats should continue usurping legislative power too because Chevron deference benefits public interest.

The Constitution vests each federal branch with exclusive powers responsive through elections; liberals seek removing these powers from democratic accountability vesting them instead into unelected bureaucrats—a practice stemming either from good-faith trust or belief sound policy risks elections but fundamentally rejecting democratic accountability favoring administrative state dominance.

I believe reinforcing constitutional principles maintaining trust placed within American people remains crucial.