We live in a democracy, but are we governed by one? The Manhattan Institute’s Jim Copland argues persuasively, in The Unelected, that quite a lot of our governance comes from people we didn’t vote for, and whom we cannot vote out to hold them accountable for misrule. His tour of the unelected ranges further than a lot of Americans might think.

Unelected government in America is a familiar problem, starting with activist judges who hand down rulings unmoored from anything written in the law. But most of Copland’s targets are elsewhere. Many of his worst culprits are not those who seize power but those who abdicate it because they fear accountability. That makes this a particularly timely topic during the pandemic, in which the public is never quite sure who is in charge: Does the president run the FDA, the CDC, and the National Institutes of Health? If the experts don’t answer to the president, whom do they answer to, and where can we register our displeasure? A concluding section on the pandemic is obviously tacked on but not out of place.

Copland begins by laying out the different ways in which our government has abandoned the original design of constitutionally separated powers, but he does not stop there, moving on to three other areas: the vast discretionary powers of prosecutors, the regulatory effect of class-action and mass-tort lawsuits, and the power of states to impose their laws on the rest of the country, which has no vote in how other states are run. In addition to the weakness of the central government, one of the fears of the Framers of the Constitution was what Alexander Hamilton, in Federalist No. 22, called “interfering and unneighborly regulations of some States” that could multiply to thwart local self-government.

The Massachusetts constitution, drafted largely by John Adams in 1779, pledges: “The legislative department shall never exercise the executive and judicial powers, or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.” In truth, a strong separation of powers is not only a guarantee of the rule of law; it is also a safeguard of the rule of men, because it promotes clear lines of accountability that allow voters to identify who is responsible when bad laws are made or when good laws are badly executed. The government Adams envisioned could never see a chief executive locked in a power struggle with a “deep state” responsible for independently executing laws.

Copland lays out with care the historical roots of the sometimes well-intentioned erosion of each of these barriers. Early courts, scholars as far back as Blackstone, and key Framers such as James Madison insisted that legislatures could not delegate their law-writing powers to the chief executive or his agencies; that view was the dominant strain of American thinking until the New Deal. Today, the Supreme Court’s conservatives must wage an uphill battle to resuscitate the “nondelegation doctrine,” and Copland is pessimistic that it will extend beyond the “major questions” doctrine, which applies an ad hoc judgment that some subjects, such as tobacco regulation and climate change, are just too big to let agencies rule on them without explicit congressional authorization.

Early Americans also believed that the executive should be able to overrule and remove executive officers at will. The Jacksonian “spoils system” generated early opponents of this view in the Whig Party. The Confederate constitution pioneered limits on executive removal of subordinate officers. Reconstruction led Republicans to constrain Andrew Johnson from removing his cabinet, and to impeach him for trying. The civil-service reforms that followed the assassination of James Garfield dismantled the spoils system, but at the expense of creating a body of executive agents beyond the reach of the chief executive, who was unable to dismiss them. Woodrow Wilson, Teddy Roosevelt, and even the conservative justices who opposed the New Deal all built into the system additional insulation from voters. Copland is less interested in the constitutional theory than in narrating how this happened and illustrating why it matters today.

The roots of the Framers’ fear of judging by the executive branch go back even further, to the Star Chamber. Copland finds obvious villains in courts that bent over backwards to defer to administrative agencies in deciding what rules to write and how to read and enforce them. And heroes, too, such as former Harvard Law dean Roscoe Pound, who put his progressive and academic credentials on the line in a losing effort to hold back the New Deal’s assault on separated powers and the rule of law. Ironies abound as well, such as Supreme Court justice Neil Gorsuch’s crusade to undo the Chevron doctrine of deference to administrative agencies, which was originally established by the Court in a victory for Gorsuch’s own mother as head of the Reagan-era Environmental Protection Agency. As Copland observes, courts that supposedly defer to agency expertise are less apt to do so when an agency is deregulating rather than regulating — and a chief exponent of the view that they should take this stance was Merrick Garland, the man Gorsuch supplanted as a nominee for the Supreme Court.

One of the strengths of The Unelected is how it incorporates human stories of citizens ensnared in the web of laws never passed by Congress. That is most on display in the sections on the creation of regulation by informal interpretation, the criminalization of things banned only by administrative regulation, and the discretionary power of prosecutors to extract concessions and penalties by agreement. Some of those penalties would not be available in a sentence pronounced by a court of law. When the courts finally arrive, it is too late: A doctor commits suicide before an appeals court throws out the rules used to convict him, and the Supreme Court exonerates the accounting firm Arthur Andersen after its business is destroyed and its 85,000 employees are thrown out of their jobs. One is reminded of Reagan-era labor secretary Raymond Donovan, who asked after his acquittal by a jury, “Which office do I go to to get my reputation back?”

Prosecutorial discretion is an inherent risk of executive power, but when crimes are few, well known, and clearly defined and have fixed penalties and require proof of criminal intent, there are limits to a prosecutor’s choices. As Copland illustrates, none of that is true today. There are some 300,000 federal crimes, 98 percent of which involve the violation of some agency regulation never passed by Congress. A startling number of these are strict-liability crimes, in which it does not matter if the defendant knew he or she was doing anything wrong. The criminal liability of corporations is, if anything, even more open-ended. A corporation can be put out of business long before it is ever convicted. To avoid that fate, companies may agree to fines larger than the statutory maximum, or to a laundry list of concessions and reforms. Copland takes particular aim at corporate non-prosecution agreements that do not require a plea or sentence in court and therefore evade any sort of review.

Then there are the lawyers. It is not just that lawyers wield government power with minimal supervision. Class-action plaintiffs’ lawyers often do so with little input from clients. Some areas of the plaintiffs’ bar are empowered to bring lawsuits with little or no evidence that anyone was injured or harmed. And, as Copland details, many of the procedural rules and liability doctrines that created the mighty engine of modern American litigation were written by judges and law professors rather than by legislatures.

Finally, there are state governments, which may answer to the people of their own states but not of other states. A state attorney general, state pension fund, or jury in one state can effectively dictate a national company’s national activities. Copland focuses heavily on laws governing business, but the same principle can apply to social policy as well. One celebrated example of this was the Supreme Court’s landmark New York Times Company v. Sullivan decision in 1964. Sullivan is remembered as a free-speech case, establishing a high standard for state-law libel cases. Less remembered is that what shocked the Court into writing that standard was that an Alabama jury hostile to civil rights slapped the Times with a damages verdict far exceeding the amount of business the newspaper did in Alabama, thereby effectively burdening the paper’s national operations.

One dramatic illustration chosen by Copland of the unintended effects of state attorneys general dictating terms to national businesses is how AIG massively increased its exposure to credit-default swaps — ending with a huge federal bailout — after Eliot Spitzer forced out its successful CEO. Critics may dispute cause and effect there, but Spitzer remade the management and policies of multiple Wall Street players in 2005–06 over things that ought to have been much smaller priorities than the national financial crisis brewing under his nose. Copland cites Spitzer and Mississippi’s Mike Moore as pioneers among border-busting state attorneys general; I might add Connecticut’s Richard Blumenthal, now a senator.

Given the scope of his diagnosis, Copland’s dozen or so proposed solutions are strikingly modest and incremental, and I wish he had gone further. To the courts, he suggests rolling back deference to administrative agencies and stepping up review of delegated authority. To Congress, he proposes limiting various powers of state pension funds and state attorneys general, expanding federal-court jurisdiction, restricting the debarment of businesses from federal programs, sunsetting regulations not passed by Congress (the REINS Act), and requiring agencies to pass more formal rules if they want to enforce informal guidance. He argues that we should have, in more situations, either federal regulation or state tort law — but not both. One unexplored possibility is that of limiting the discretionary decisions that can be taken without the approval of a political appointee.

Of course, for Congress to write new rules to take back its lawmaking power, it first needs to want that power. The unelected have grown in power in good part because the elected do not want that power, and the electorate does not demand that they jealously protect that power. The Founding generation took up arms over less. We could still have a republic — if we care enough to keep it.