As part of a terrific University of Chicago Legal Forum Authority, Oversight, and Accountability Symposium, I’ve penned an essay entitled Preserving Both Agency Expertise and Accountability in the Unitary Executive. I took this opportunity to flesh out the traditional conservative defense of the civil service, in terms of both law and policy. This essays builds on Aaron Nielson and my longer article, Article II and the Civil Service, but that article focused exclusively on the constitutional issues. In this shorter essay, especially on the policy front, I am obviously speaking just for myself

I’ve posted to SSRN at draft of the essay here. Here is the abstract:

In response to the Supreme Court’s increasingly unitary executive approach to presidential power, this symposium essay sketches out a vision for the administrative state that preserves both accountability and expertise in regulatory governance. In particular, it makes the conservative case for a professionalized civil service—one with meritocratic hiring and firing practices—that operates within a politically accountable structure. This argument may cut against the “deep state” narrative on the political right, but it reinforces traditional conservative values of protecting liberty and preventing government overreach as well as promoting innovation and free markets through fostering more effective, efficient, predictable, and stable regulatory environments.

This vision is not new. It is the “standard model” Congress embraced in the Administrative Procedure Act of 1946. Nor is it unconstitutional under the Roberts Court’s unitary executive precedents or inconsistent with the Court’s formalist approach to separation of powers. Indeed, last Term, in Kennedy v. Braidwood Management, a 6–3 majority confirmed that this vision for regulatory governance that “preserves both expertise and accountability” is “fully consistent” with separation of powers. As such, even after the Supreme Court overrules Humphrey’s Executor this Term in Trump v. Slaughter, one should resist the parade of horribles that the unitary executive theory’s next target is the civil service. The Court answered that question the Term before in Braidwood. In so doing, the Braidwood Court preserved Congress’s ability to structure executive branch institutions that ensure the political chain of accountability while allowing the agency to leverage the expertise of a professionalized civil service.