34 Journal of Regulatory Compliance Issue II
must reach back to the President.105 Our system needs to be able to hold an
elected President accountable for decisions by executive agencies.
Otherwise, “We the People”106 have no political recourse against abuse.
Article II helps ensure liberty by giving the People a say in the selection of
the President, who must be held responsible—to at least some degree—for
any and every exercise of federal executive power.107 We cannot vote out of
office agency adjudicators—only the President. To ensure there is some
direct chain of accountability between adjudicators and the President,108 no
matter how long the chain, an executive actor should have a say in the
Statements made during the Founding Era debates suggest, as an initial
matter, that one key purpose of the Appointments Clause was to ensure
“officers” were selected on the basis of their excellence and qualifications—
not due to patronage or favoritism.110 The Framers concluded that leaving
appointments responsibility with one actor, rather than an appointments
council, would ensure transparency and accountability.111 If the appointing
authority picked an unqualified officer based on patronage, it would be very
clear whom to blame if the appointee later messed up.112
To be sure, the Framers’ debate over councils versus individual actors
occurred during the recorded discussion of just the principal Appointments
105. See generally Lawson, Rise and Rise, supra note 19, at 1241–46 (describing how
the Article II Vesting Clause gives the President authority to control the exercise of executive
power by lower-level officials); see also Dina Mishra, An Executive-Power Non-Delegation
Doctrine for the Private Administration of Federal Law, 68 VAND. L. REV. 1509, 1523–24
(2015) (suggesting the President must have enough control over subordinates that he is not
divested of his “executive Power”—even under Ms. Mishra’s “less rigid” theory of executive
supervision, which incorporates the idea of “non-delegation of executive power” as an
alternative to the unitary executive model).
106. U.S. CONST. pmbl.
107. Cf. Mishra, supra note 105, at 1587 (noting that “the popularly elected President[‘s]”
control over exercises of executive power “provides a mechanism to align the decision-maker’s interest more generally with that of the public”).
108. Cf. id. at 1514–15 (referring to the need for “a chain of accountability to the
American people via the President” but contending implementation of the chain might be
flexible and potentially “could employ one of a variety of combinations of oversight or control
mechanisms—including through appointment, removal, or supervision or review of decision-making—of varying types, strengths, and directness”).
109. See generally Mascott, supra note 8, at Part IV.B. 1–2.
110. Id. at Part IV.B. 1.; see Amar, supra note 24, at 809 n.240.
111. See Mascott, supra note 8, at Part IV.B. 1.
112. See id.; cf. Amar, supra note 24, at 809 (asking, when “independent” officers “mess
up, whom can we blame? Who is accountable? . . . How can there be an inferior without a