Senate Republican Leader Mitch McConnell (Ky.) agrees with Democrats that the future of democracy may be at stake in the upcoming election, but in an op-ed published in the Wall Street Journal he says the biggest threat is posed by liberals who want to bury democratic accountability under bureaucracy.
“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,” he wrote in an op-ed published this week.
The Senate GOP leader pointed to Democrats intensifying pressure on the Supreme Court to adopt an enforceable code of conduct in response to press reports about lavish gifts and hospitality accepted by conservative Justices Clarence Thomas and Samuel Alito, as well as the political activism of those justices’ spouses.
Democrats on the Senate Judiciary Committee have pressed Alito to recuse himself from cases involving former President Trump after two flags associated with the Jan. 6, 2021, effort to overturn the results of the last presidential election, were displayed at the justice’s Virginia home and New Jersey beach house.
“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,’” McConnell wrote.
“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,” he argued.
McConnell contends that Article III of the Constitution vests judicial power in the court itself and that Democrats are trampling on the independence of the court and the constitutional separation of powers by wanting a “bureaucracy to ‘administer’ it.”
“This misbegotten trust in bureaucrats also undermines the democratic legitimacy in the executive branch,” McConnell wrote, noting Attorney General Merrick Garland’s decision to appoint special counsels to investigate criminal allegations against President Biden and Trump.
But he argued that prosecutions should be handled under the direct authority of the attorney general who is appointed by the sitting president in order to maximize the “democratic accountability” of those prosecutions.
“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 as arrangement insulates them from democratic accountability,” McConnell wrote.
He argues that a federal prosecution is legitimate in so far as it is “vested” in the executive branch headed by an elected official.
“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,” he said.
“The buck stops with the attorney general because he, through the president, is accountable to voters. Liberals seem to struggle with this reality,” he wrote.
And McConnell said liberals have outsourced their legislative power for decades by allowing unelected executive branch officials to fill in the regulatory details of enacted laws under the Chevron deference, under which courts have traditionally deferred to federal agencies’ interpretations of ambiguous laws.
McConnell noted that he filed a legal brief in support of overturning the Chevron deference because he views it as a “power grab” by Washington’s bureaucracy.
“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,” he wrote.
“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,” he argued.