Self Accountable Government - American Reformer

The Supreme Court Must Not Settle for A Government that Only Answers to Itself

In his correspondence with Bishop Creighton, Lord Acton famously wrote that “[p]ower tends to corrupt, and absolute power corrupts absolutely.” This insight was central to the development of divided government enshrined in the U.S. Constitution. “In framing a government which is to be administered by men over men,” wrote James Madison in Federalist 51, “the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

This term, the Supreme Court is considering a trio of cases in which the federal administrative state is claiming for itself a degree of impunity that would have reminded the Founders more of an absolute monarch than a branch of the limited government they designed.

On March 18, in Murthy v. Missouri, the Supreme Court considered whether the federal government could be held accountable for relentlessly badgering social media companies like Facebook and Twitter to remove posts critical of, among other things, the government’s response to COVID-19. During oral argument, Deputy Solicitor General Brian Fletcher contended that it is not “possible for the government, through speech alone, to transform private speakers into state actors.”

In other words, if social media platforms silence your online voice because the government verbally browbeat them to do so, you have no recourse against the government.

Eight days, later, lawyers for the federal government made clear that no recourse for aggrieved citizens is precisely their objective.

On March 26, the Supreme Court heard oral argument in U.S. Food and Drug Administration v. Alliance for Hippocratic Medicine, a case in which several doctors and medical groups are challenging the FDA’s elimination of basic safeguards for women who use the chemical abortion drug mifepristone. But the most shocking concession the FDA made during the argument had nothing to do with its brazen disregard for women’s health.

Rather, when questioned by Justice Samuel Alito whether there was “anybody who can sue and get a judicial ruling on whether what FDA did was lawful,” Solicitor General Elizabeth Prelogar answered, “I think that with respect to these regulatory changes, it’s hard to identify anyone who would have standing to sue.”

In other words, no one can hold the FDA accountable except the FDA itself.

This sort of self-accountability is eerily familiar to the concept of “rule by law.” Author N.S. Lyons observed in his piece “The China Convergence” that rule by law, or “law-based governance,” is a concept the Chinese Communist Party deploys. “Not to be confused with rule of law,” writes Lyons, “. . . the rule by law concept explicitly rejects the ‘erroneous Western thought’ encapsulated by the phrase ‘no one is above the law.’” After all, “How can anything be above the rule of the CCP?”

In theory, federal administrative agencies operate within a rule-of-law context because they are subject to challenge under the Administrative Procedure Act if they behave unlawfully. But that accountability is a mirage if no one has legal standing to challenge unlawful agency conduct in court. If that’s the case, an agency can act, at least in the medium term, with impunity—it can rule by law.

And that’s precisely what the administrative state seems to want.

It is unsurprising, of course, that government lawyers would urge the Court to find federal agency actions unreviewable. What is notable about these arguments, however, is that they capture the imperious approach to governance—allergic to public accountability—in vogue among the technocratic mandarins at the helm of our increasingly interwoven elite public and private institutions.

Take, for instance, recent revelations by the House Select Subcommittee on the Weaponization of Government that, in the wake of the Jan. 6 riots, the FBI and the Treasury Department demanded reams of financial data about ordinary citizens from leading banking institutions, which readily complied. Or the brazen efforts by the former Superintendent of the New York Department of Finance to deny the National Rifle Association access to financial services by cajoling banks and insurers to “sever ties” with the NRA—which is the subject of the NRA v. Vullo case pending before the Supreme Court. These moves by federal and state regulators to use private entities to do their dirty work shield that activity from constitutional scrutiny—provided courts agree that such efforts are immune from review.

And even when they act unilaterally, federal agencies often seek to sidestep accountability through careful regulatory engineering. The FDA’s changes to the mifepristone dispensing requirements at issue in FDA v. AHM are just part of a broader suite of agency actions designed to patch together a nationwide mail-order chemical abortion scheme.

One of those actions, a mandate requiring pharmacies to stock and dispense mifepristone, was challenged in federal court in Midland, Texas. The government asked the court to dismiss the suit. But the court wasn’t buying. Rejecting the government’s argument, District Judge David Counts observed that agencies increasingly are “laundering” executive branch policy into “‘unreviewable’ and ‘unchallengeable’ pieces.” “This compartmentalization of executive policy in an effort to avoid legal consequence is done in the open for all to see,” wrote Judge Counts, “though no one is supposed to notice.”

This brings us to a case the Court is set to hear on April 24—Moyle v. United States—in which the Court will consider whether a federal statute that bars emergency rooms from “dumping” uninsured patients who need emergency care preempts and Idaho law that restricts abortion. The statute, called the Emergency Medical Treatment and Labor Act or “EMTALA,” says nothing about abortion and actually requires hospitals to treat both pregnant women and their unborn children. But in an act of legal legerdemain, the Department of Health and Human Services now argues that a statute that expressly protects both women and their unborn children requires the death of unborn children. And Oceania has always been at war with Eastasia.

The common thread—from the AHM and Murthy arguments to the government’s collusion with and coercion of private industry to its creative rulemaking in Moyle—is that governing power, in the words of Lyons, “has been steadily elevated, centralized, and distributed to a technocratic bureaucracy unconstrained by any accountability to the public.”

It doesn’t have to be that way, of course. Our society is still populated by countervailing institutions, both public and private, precisely as the Framers of our Constitution intended. And those institutions—including Congress, the states, small businesses, churches, and other communal institutions—must be willing to play their proper roles in checking the ambitions of the federal bureaucracy. That should begin with the Supreme Court declining the administrative state’s bid for autonomy.

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