Executive Action and Political Accountability

June 28th, 2014

Executive action, in the absence of congressional action, serves to disrupt political accountability. As Justice O’Connor explains in a related context in New York v. United States, when Congress directs the states to act, the states actors forced to act will be politically accountable.

By contrast, where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished. If the citizens of New York, for example, do not consider that making provision for the disposal of radioactive waste is in their best interest, they may elect state officials who share their view. That view can always be preempted under the Supremacy Clause if is contrary to the national view, but in such a case it is the Federal Government that makes the decision in full view of the public, and it will be federal officials that suffer the consequences if the decision turns out to be detrimental or unpopular.  But where the Federal Government directs the States to regulate, it may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision. Accountability is thus diminished when, due to federal coercion, elected state officials cannot regulate in accordance with the views of the local electorate in matters not pre-empted by federal regulation. See Merritt, 88 Colum. L. Rev., at 61-62; La Pierre, Political Accountability in the National Political Process–The Alternative to Judicial Review of Federalism Issues, 80 Nw. U. L. Rev. 577, 639-665 (1985).

Members of congress can’t be accountable when President fails to enforce their laws. In a related context, when Congress passes a law, representing their constituents, and the President declines to enforce that law, the members of Congress may bear the brunt of that public disapproval.