Quite apart from such such agencies’ subservience to the current
White House, screeds like Kavanaugh’s, against
the “headless fourth branch,” leave out the landmark accountability regime that
the post–New Deal Congress enacted. This is the 1946 Administrative Procedure
Act, or APA, which gives targets of agency actions statutory rights,
enforceable in court—to receive notice; to be heard; to present factual, legal,
and policy contentions, before significant agency actions can be undertaken or
finalized. To such contentions, agencies must provide “reasonable,”
record-based responses or risk getting initiatives scrapped in court.
Those requirements impel agencies to invest years of effort,
involving chunks of personnel, revenue, and other resources. Riding on their
success, agency leaders, including presidential appointees and presidents
themselves, can have significant reputational, ideological, or political
stakes. And in terms of democratic accountability, APA-mandated procedures are
orders of magnitude more marked by meaningful participation for affected
interests, and more transparent to the media and politicians with relevant constituencies
and interests, than many secrecy-shrouded backroom maneuvers on Capitol Hill
or in the White House—none of which are covered by the APA or equivalent open-government safeguards.
Very unfortunately, despite the empty legal grounding and
practical horrors of unitary executive theory, liberal advocates have allowed
proponents like Kavanaugh to frame and dominate the public narrative. Their errors
and omissions are why liberals have often come up short in the half-century-old
war over the courts and the Constitution.
