Gundy and Faulty Accountability Claims

In his dissent in today’s decision in Gundy v. United States, Justice Gorsuch repeatedly claims that excessive congressional delegation to agencies threatens to undermine congressional accountability. “[B]y directing that legislating be done only by elected representatives in a public process, the Constitution sought to ensure that the lines of accountability would be clear,” Justice Gorsuch writes. He adds that “[a]ccountability would suffer” if “Congress could pass off its legislative power to the executive branch.” Turning to the statute at issue, “[t]hen, too, there is the question of accountability.” “In passing this statute, Congress was able to claim credit for ‘comprehensively’ addressing the problem . . . while in fact leaving the Attorney General to sort it out.”

As I explained in a recent article, these kinds of accountability claims–not only in the nondelegation context but also in cases about the President’s removal power, federal “commandeering” of state governments, and campaign spending–are unpersuasive. Their common flaw is that they assume that governmental actors are highly accountable to begin with, and that this accountability can be significantly affected (up or down) by the institutional arrangement that is adopted. The empirical evidence, though, is mostly to the contrary. Elected officials are never very accountable, as a result of voter ignorance, biased voter judgments, flawed voter attributions, and non-retrospective decision-making by voters. This modest quantum of accountability is also not particularly sensitive to the institutional configurations that are litigated in constitutional cases.

Take the sex offender statute at issue in Gundy. No matter what the law says, it is implausible that members of Congress are more than trivially accountable for its content. How many voters know about the provision? What proportion of them evaluate the measure impartially, unskewed by their general partisan leanings? What fraction are correctly able to attribute responsibility for the statute’s drafting and enactment? And what share are actually willing to cast their votes on this basis — as opposed to partisanship, personality, or the state of the economy? These questions answer themselves.

Assume, also, that the law avoided the nondelegation issue by including more definite guidelines for the Attorney General to use in registering sex offenders. It is hard to see how congressional accountability would be much higher. Most voters still (1) would not know about the provision; (2) would assess it in a biased manner based on their partisan priors; (3) would incorrectly attribute responsibility for its enactment; and (4) would vote for other reasons anyway. The point is that whatever drives congressional accountability, it’s not the specificity of the language that Congress uses in its legislation.


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