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America is highly polarized around elections, but unelected actors
make many of the decisions that affect our lives. In this lucid
history, James R. Copland explains how unaccountable agents have
taken over much of the U.S. government apparatus. Congress has
largely abdicated its authority. "Independent" administrative
agencies churn out thousands of new regulations every year. Courts
have enabled these rulemakers to expand their powers beyond those
authorized by law-and have constrained executive efforts to rein in
the bureaucratic behemoth. No ordinary citizen can know what is
legal and what is not. There are some 300,000 federal crimes, 98
percent of which were created by administrative action. The
proliferation of rules gives enormous discretion to unelected
enforcers, and the severity of sanctions can be ruinous to citizens
who unwittingly violate a regulation. Outside the bureaucracy,
private attorneys regulate our conduct through lawsuits. Most of
the legal theories underlying these suits were never voted upon by
our elected representatives. A combination of historical accident,
decisions by judges and law professors, and self-interested
advocacy by litigators has built an onerous and expensive legal
regime. Finally, state and local officials may be accountable to
their own voters, but some reach further afield, pursuing agendas
to dictate the terms of national commerce. These new
antifederalists are subjecting the citizens of Wyoming and
Mississippi to the whims of the electorates of New York and San
Francisco-contrary to the constitutional design. In these ways, the
unelected have assumed substantial control of the American
republic, upended the rule of law, given the United States the
world's costliest legal system, and inverted the Constitution's
federalism. Copland caps off his account with ideas for charting a
corrective course back to democratic accountability.
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