Separation of powers, federalism, national accountability, and the constitutional rejection of rule by insulated managers

Keywords: United States Constitution; constitutional law; separation of powers; federalism; administrative state; nondelegation; major questions doctrine; Appointments Clause; removal power; anti-commandeering; treaty power; Article III; Seventh Amendment; jury trial; republican government; democratic accountability; sovereignty; intermediary power.

Abstract

The United States Constitution is not merely a catalogue of liberties. It is an institutional design for keeping power visible, limited, divided, and answerable. Its deepest legal anxiety is not simply tyranny by a king, but rule by any authority that cannot be identified, checked, removed, blamed, or forced to act through constitutionally prescribed forms.

This paper argues that American constitutional law is structurally hostile to unaccountable intermediary power. It does not forbid institutions, expertise, administration, delegation, treaties, federal officers, courts, juries, agencies, or intergovernmental cooperation. Such a view would be childish, and the Constitution is many things, but it is not childish. Rather, the Constitution insists that every exercise of public power be traceable to a constitutional source, exercised by constitutionally recognised actors, constrained by constitutional limits, and subject to constitutional correction.

The same constitutional logic appears across doctrines often treated as separate: bicameralism and presentment, separation of powers, nondelegation, removal, appointments, Article III adjudication, jury trial, anti-commandeering, federalism, treaty implementation, and the major questions doctrine. Each embodies the same premise: power must not be laundered through intermediaries until no one is responsible.

The Constitution’s answer to tyranny is not direct democracy. It is republican constitutionalism: representation, divided authority, enumerated powers, procedural discipline, judicial independence, state sovereignty, jury participation, and ultimate popular accountability. Its enemy is not complexity. Its enemy is complexity used as concealment.

Central Thesis

American constitutional law rests on a theory of accountable sovereignty. Public power is legitimate only when it can be traced to the people through the Constitution, exercised through constitutionally authorised offices or institutions, constrained by enumerated powers and structural limits, and corrected through elections, impeachment, judicial review, federalism, jury trial, or other recognised legal mechanisms.

The Constitution therefore stands against the empire of intermediaries. Not every intermediary is illegitimate. A court is an intermediary. A jury is an intermediary. A state government is an intermediary. A federal officer is an intermediary. But constitutional intermediaries are justified because they discipline power, localise responsibility, preserve legal form, or protect the citizen against arbitrary command. Unconstitutional or constitutionally suspect intermediaries do the opposite: they obscure power, diffuse blame, and convert political choice into managerial inevitability.

That is the distinction. A constitutional intermediary restrains the ruler. An imperial intermediary conceals him.

I. The Constitution Begins with a People, Not a Bureaucracy

The first predicate is textual and foundational. The Constitution begins with “We the People,” not “We the Administrators,” “We the Experts,” “We the Permanent Commission,” or “We the Well-Qualified Persons Who Would Prefer Not to Be Questioned.” The Preamble establishes the source of constitutional authority in the people of the United States. Article I then vests “[a]ll legislative Powers herein granted” in Congress. Article II vests executive power in a President. Article III vests judicial power in one Supreme Court and such inferior courts as Congress may establish.[1]

That allocation is not decorative. It is the grammar of constitutional responsibility. The Constitution does not treat authority as a vapour that may drift from Congress to agency, from agency to guidance document, from guidance document to compliance officer, and from compliance officer to citizen with no one admitting to having governed. Power is vested. It is placed. It is limited. It is named.

The American constitutional system is not a pure democracy. It was never meant to be one. It is a republic: a government in which the people rule through offices, forms, procedures, elections, federal divisions, and legal restraints. Madison’s defence of the extended republic in Federalist No. 10 turns precisely on the danger of faction. His answer is not bureaucracy by experts, nor moral purification by committee, nor the rule of those who read policy papers aloud with a solemn expression. It is constitutional design.[2]

This matters because modern intermediary power almost always presents itself as anti-political. It claims not to govern but to administer; not to decide but to implement; not to choose but to harmonise; not to rule but to manage. The Constitution is properly suspicious of this vocabulary. It asks the one question managerial systems dislike most: by what authority?

II. Republican Government Requires Traceable Responsibility

The second predicate is that representative government means little unless action can be traced. If the citizen cannot determine who made the rule, who enforced it, who interpreted it, and who may be removed for it, then the republican form has failed, even if the forms remain laminated and professionally formatted.

Article I, Section 7 gives this principle its lawmaking form. Bicameralism and presentment require legislation to pass both Houses of Congress and be presented to the President. The requirement is not procedural fussiness. It forces deliberation, visibility, and responsibility. Law must be made in public by identifiable institutions through a prescribed constitutional process.[3]

The Supreme Court enforced this principle in INS v. Chadha. Congress had reserved a one-House legislative veto over certain executive actions. The Court invalidated the mechanism because it had legislative purpose and effect but did not comply with bicameralism and presentment.[4] The decision is often taught as a case about legislative vetoes. It is more deeply a case about disguise. Congress could not alter legal rights through a device that functioned legislatively while avoiding the constitutional form for legislation.

The same logic appears in Clinton v. City of New York, where the Court invalidated the federal line-item veto. Congress cannot give the President power to cancel portions of duly enacted statutes outside Article I’s lawmaking procedure.[5] The constitutional defect was not that line-item vetoes are inherently foolish. The defect was that the federal Constitution prescribes how federal statutes are made and unmade. Convenience is not amendment.

Together, Chadha and Clinton express a rule of constitutional hygiene: where law is made, altered, or repealed, constitutional form must be honoured. A government that evades form evades responsibility. It may still produce policy. It may even produce efficient policy. But efficiency is not legitimacy. A gallows is efficient. That is not usually considered its finest legal attribute.

The intermediary says: “We are not making law. We are implementing policy.” Then it changes rights, imposes costs, restricts conduct, creates obligations, and punishes disobedience. The Constitution replies: “How charming. Now show the authority.”

III. Separation of Powers Is a Theory of Blame

The third predicate is that separation of powers is not merely a diagram. It is a theory of blame.

Madison’s account in Federalist No. 51 is unsentimental. Government must control the governed, but it must also be obliged to control itself. Dependence on the people is the primary control, yet auxiliary precautions are necessary because men are not angels.[6] This is the Constitution’s anthropology: officials seek power. Not always wickedly. Often politely. Sometimes with charts. The danger is not only the tyrant shouting from a balcony, but the administrator murmuring from behind a process.

Separation of powers prevents power from collecting in one place and prevents responsibility from dissolving into fog. The legislature legislates. The executive executes. The judiciary judges. This is not because every branch performs only one function in all contexts; constitutional reality is more subtle than a schoolroom chart. But the basic premise remains: power must be allocated so that it can be checked and blamed.

Bowsher v. Synar illustrates the point. Congress could not reserve removal power over an officer charged with executing federal law, because that arrangement placed executive authority under congressional control.[7] Buckley v. Valeo likewise held that significant federal authority must be exercised by officers appointed in conformity with Article II.[8] These are not technicalities. They are devices for preventing power from being exercised by persons who sit outside the constitutional chain.

Modern removal doctrine continues the same anxiety. In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Court invalidated dual for-cause removal protections that insulated PCAOB members from presidential control through two layers of tenure protection.[9] The case matters because it explicitly connects removal to political accountability. When power is diffused, accountability is diffused. The citizen must know whom to blame.

Seila Law LLC v. Consumer Financial Protection Bureau applied related logic to the CFPB’s single-director structure protected by for-cause removal.[10] The Court held that such concentration of executive power in a single insulated director violated separation of powers. The point was not that every independent agency structure is invalid. The point was that a powerful executive officer cannot be made so independent of presidential removal that political responsibility is severed.

A tyrant who says “I command” is at least honest enough to be named. The modern administrator says, “The framework requires,” “the evidence base suggests,” “the process has concluded,” or “the Commission has determined.” It is government by passive voice. Constitutional law exists to restore the active voice.

IV. Nondelegation: Congress May Not Turn Lawmaking into Administrative Ventriloquism

The fourth predicate is that Congress cannot solve political difficulty by handing lawmaking power to others while keeping the title of legislature for ceremonial use.

The nondelegation doctrine follows from Article I’s vesting of legislative power in Congress. Under J.W. Hampton, Jr. & Co. v. United States, Congress may delegate authority if it supplies an “intelligible principle” to guide the delegate.[11] That formulation has allowed broad delegations, and one must admit the modern doctrine has often behaved like a guard dog that barks at intruders and then helps them carry the silver. Yet the underlying principle remains indispensable: Congress may not abandon the legislative function.

The leading invalidation cases remain Panama Refining Co. v. Ryan and A.L.A. Schechter Poultry Corp. v. United States. In Panama Refining, the Court rejected a delegation that failed to provide adequate standards governing executive prohibition of interstate petroleum shipments.[12] In Schechter Poultry, it invalidated sweeping delegation under the National Industrial Recovery Act.[13] These cases are not museum pieces. They expose the constitutional vice of delegating policy choice without sufficient legal constraint.

The problem is not expertise. Congress may use experts, create agencies, and assign administration. The problem is abdication. If Congress writes a broad aspiration and leaves operative lawmaking to administrators, the people cannot meaningfully punish the lawmaker. Congress says the agency acted. The agency says Congress authorised it. Responsibility leaves the room wearing a discreet hat.

The modern major questions doctrine is a response to this same problem. In West Virginia v. EPA, the Court required clear congressional authorisation before an agency could claim power over matters of vast economic and political significance.[14] The EPA could not discover transformative authority over the national energy sector in statutory language that did not clearly grant such power. This doctrine is not an anti-regulatory charm. It is a rule of constitutional authorship. Major policy choices must be made by Congress clearly enough that the public knows whom to blame.

The doctrine also reflects an older constitutional instinct: agencies do not acquire sovereignty by finding ambiguity useful. Administrative grandeur may impress those who like power when it wears spectacles. It is not legislation.

V. Ambiguity Is Not an Administrative Estate

The fifth predicate concerns statutory interpretation. If agencies may control the meaning of ambiguous statutes merely because they administer them, ambiguity becomes a deed of title. The agency does not merely execute the statute. It owns the uncertainty.

In Loper Bright Enterprises v. Raimondo, the Supreme Court overruled Chevron deference and held that courts must exercise independent judgment in determining whether an agency acted within its statutory authority.[15] The Court grounded the decision in the Administrative Procedure Act and the traditional judicial role of saying what the law is.

The constitutional importance is plain. If statutory ambiguity automatically empowers the agency, Congress may legislate vaguely and let administrators govern. Courts become spectators to administrative meaning. Citizens are ruled not by law but by the agency’s latest plausible interpretation of law. This is convenient. So is dictatorship, if one’s principal ambition is promptness.

Loper Bright does not abolish agency expertise. Agencies may still inform courts, develop factual records, make technical determinations, and act within lawful delegations. Expertise may assist judgment. It may not replace law. The administrator does not become sovereign because Congress wrote badly.

This matters because interpretive authority is itself power. If an agency can define the boundaries of its own authority whenever Congress is unclear, then the agency becomes judge of its own jurisdiction. The Constitution, being suspicious of all men and especially of men holding clipboards, resists that arrangement.

VI. Appointments: Power Must Be Attached to Lawful Office

The sixth predicate is that federal power must be exercised by officers appointed through constitutional means. The Appointments Clause is not an etiquette provision. It is a structural safeguard.

In Buckley v. Valeo, the Court held that officers exercising significant federal authority must be appointed in conformity with Article II.[16] In Edmond v. United States, the Court distinguished principal from inferior officers by reference to direction and supervision by officers appointed through presidential nomination and Senate confirmation.[17] In Lucia v. SEC, the Court held that SEC administrative law judges were officers of the United States because they exercised significant authority under federal law.[18]

The point is obvious once one stops pretending otherwise. If a person may conduct hearings, rule on evidence, make findings, and issue decisions affecting legal rights, that person is not merely a helpful clerk with a desk. He exercises power. The Constitution wants to know how he got it.

United States v. Arthrex, Inc. further confirms the accountability logic. Administrative patent judges exercised authority inconsistent with their status as inferior officers because their decisions were not sufficiently reviewable by a superior executive officer.[19] The remedy preserved executive supervision. The principle was constitutional traceability.

More recently, Kennedy v. Braidwood Management, Inc. continued the Court’s engagement with the Appointments Clause in the context of federal task-force members whose recommendations had binding legal effect. The Court held the relevant officers to be inferior officers because their work was directed and supervised by the Secretary of Health and Human Services, a principal officer.[20] Whether one agrees with the majority or the dissent, the case reinforces the premise: when federal actors exercise significant governmental authority, constitutional law demands lawful appointment, supervision, and responsibility.

Appointments doctrine therefore speaks directly to the anti-intermediary thesis. Government cannot place meaningful authority in persons who float outside the constitutional chain. Office matters because office supplies visibility, source, supervision, and accountability. The Constitution does not merely ask whether a decision is sensible. It asks whether the decision-maker had lawful authority to make it.

That question is rude only to those accustomed to being obeyed.

VII. Administrative Adjudication and the Right to Independent Judgment

The seventh predicate is that adjudication cannot simply be absorbed into executive administration whenever doing so is convenient.

Agencies may adjudicate in many settings. Public-rights doctrine exists. Administrative adjudication is not going to disappear because constitutional lawyers dislike its furniture. But there are constitutional limits, especially where private rights, common-law analogues, penalties, or jury guarantees are implicated.

In Northern Pipeline Construction Co. v. Marathon Pipe Line Co., the Court rejected broad assignment of traditional Article III judicial power to non-Article III bankruptcy judges.[21] In Stern v. Marshall, the Court held that Congress could not constitutionally authorise a bankruptcy court to enter final judgment on a state-law counterclaim not resolved in the process of ruling on a creditor’s proof of claim.[22] These cases reflect the continuing importance of Article III courts as independent judicial bodies.

The Seventh Amendment supplies another restraint. In Granfinanciera, S.A. v. Nordberg, the Court held that a person who had not submitted a claim against a bankruptcy estate was entitled to a jury trial in a fraudulent conveyance action.[23] In SEC v. Jarkesy, the Court held that when the SEC seeks civil penalties for securities fraud, the Seventh Amendment entitles the defendant to a jury trial because the action resembles traditional legal claims.[24]

The jury is an intermediary, but a constitutional one. It stands between citizen and government. It interrupts state power. It does not conceal the ruler; it restrains him. That is the distinction between constitutional mediation and administrative mediation.

Administrative adjudication becomes constitutionally troubling when the same institutional world writes the rule, investigates the breach, prosecutes the case, adjudicates the dispute, imposes the penalty, and then explains that due process was observed because all the forms were printed neatly. Such arrangements are not always unlawful. But they are always constitutionally suspect because they fuse functions in ways that weaken independence and accountability.

The Constitution is not hostile to judgment. It is hostile to judgment by those who have already decided.

VIII. Federalism Prevents Accountability from Becoming National Monologue

The eighth predicate is federalism. American federalism is not a quaint affection for local flags and state courthouses. It is a constitutional method of preserving local accountability and preventing national authority from becoming an administrative monopoly.

The Tenth Amendment reserves powers not delegated to the United States nor prohibited to the states to the states respectively, or to the people.[25] That reservation is structural, not ornamental. It reflects the Constitution’s refusal to convert every public question into a national command.

The anti-commandeering doctrine is central. In New York v. United States, the Court invalidated a federal provision that effectively required states either to regulate according to federal instructions or take title to radioactive waste.[26] In Printz v. United States, the Court held that Congress could not conscript state executive officers to administer a federal background-check programme.[27] In Murphy v. NCAA, the Court extended the principle, holding that Congress may not issue direct orders to state legislatures.[28]

The logic is accountability. If the federal government wants a federal policy, it must take responsibility for it. It may not make state officials implement federal policy and then allow voters to blame the wrong sovereign. Such arrangements are elegant in the way pickpocketing is elegant: the hand moves quickly, and by the time the victim notices, everyone is looking elsewhere.

The Commerce Clause cases reinforce the same theme. United States v. Lopez and United States v. Morrison reasserted that Congress is one of enumerated powers, not a national police power with better stationery.[29] NFIB v. Sebelius likewise held that the Commerce Clause permits regulation of existing commercial activity, not compulsion to enter commerce.[30]

Federalism is thus not merely about states’ rights. It is about citizens’ rights to know which government is governing them. Power divided is power made visible. Power consolidated is power tempted toward abstraction. The Constitution does not forbid national power; it enumerates and limits it. That is the difference between a republic and an administrative empire.

IX. Treaty Power Is Not a Constitutional Escape Hatch

The ninth predicate concerns international authority and supranational governance. The Constitution permits treaties. It gives the President power to make treaties with the advice and consent of two-thirds of the Senate.[31] It makes treaties, along with the Constitution and federal statutes made pursuant to it, part of the supreme law of the land.[32] The United States is not constitutionally required to be provincial.

But treaty power is not a trapdoor out of the Constitution.

Missouri v. Holland remains the canonical case recognising broad federal power to implement treaties.[33] Any serious analysis must acknowledge it. Yet later authority makes equally clear that treaties cannot override constitutional protections. In Reid v. Covert, the Court held that constitutional safeguards apply despite treaty arrangements, and that no agreement with a foreign nation can confer power on Congress or another branch free from constitutional restraints.[34]

Medellín v. Texas reinforces the domestic accountability principle. The Court held that an International Court of Justice judgment was not directly enforceable as domestic law absent self-executing treaty effect or congressional implementation, and that the President could not unilaterally convert it into binding domestic law.[35] International obligation may bind the United States internationally without automatically becoming domestic law enforceable in American courts.

Bond v. United States further demonstrates the Court’s caution in construing treaty-implementing legislation so as not to obliterate ordinary federalism assumptions.[36] The point is not that international cooperation is illegitimate. The point is that domestic legal authority must pass through constitutional channels.

This is the American constitutional answer to supranational managerialism. Cooperation is permitted. Surrender of constitutional accountability is not. Foreign institutions, however learned, do not become American legislatures. International tribunals, however grave, do not become Article III courts. Executive commitments, however urgent, do not amend the Constitution.

The Constitution is capable of international law. It is not capable of ceasing to be the Constitution.

X. The Guarantee of Republican Form and the Problem of Unanswerable Rule

The tenth predicate is republican government. Article IV guarantees every state a republican form of government.[37] The Supreme Court has often treated Guarantee Clause claims as nonjusticiable political questions, as in Luther v. Borden and later cases.[38] But nonjusticiability does not make the clause irrelevant. It reflects a constitutional atmosphere: the Constitution presupposes accountable representative government.

Republican government means more than the existence of elections somewhere in the system. Elections must have consequences. Officials must be removable. Law must be attributable. Power must be corrigible. A system in which citizens may vote but cannot alter the real structure of rule is not a republic in the robust constitutional sense. It is an electoral theatre with excellent lighting.

This is why intermediary power is constitutionally dangerous. It may leave elections intact while moving decision-making elsewhere. It may retain legislatures while shifting policy to agencies. It may retain courts while funnelling disputes into internal tribunals. It may retain states while conscripting them into federal programmes. It may retain national constitutions while binding domestic life through external bodies. The old forms remain, but the authority has migrated.

The Constitution’s republicanism is not sentimental. It does not assume the people are always wise. The people are often wrong, sometimes loudly, and occasionally with remarkable confidence. But constitutional self-government requires that public authority answer to a people capable of correction. The alternative is not enlightened order. It is rule by those who no longer need to persuade.

XI. Culture, Speech, and Constitutional Tolerance

The eleventh predicate is cultural. Constitutional law is not only machinery. It also protects the conditions under which a self-governing people can judge, speak, criticise, tolerate, and transmit standards.

The First Amendment does not declare all opinions equal. It denies the state the power to suppress speech merely because the government dislikes its viewpoint.[39] This distinction is essential. A free society may judge speech harshly. It may call an argument foolish, vulgar, immoral, dishonest, or absurd. What it may not do is convert official dislike into legal silence.

Tolerance properly understood requires judgment. One does not tolerate what one approves. One tolerates what one judges wrong while declining to suppress it by force. Modern language often murders this distinction by treating tolerance as approval. That is not tolerance. That is compulsory admiration wearing a liberal hat.

Constitutional speech doctrine protects public judgment by preventing government from monopolising acceptable opinion. That matters because a people incapable of judgment cannot govern itself. If public disagreement is pathologised, if standards are treated as oppression, if criticism becomes harm, and if official bodies regulate speech to maintain approved sentiment, republican government becomes therapeutic administration.

The Constitution’s speech tradition is therefore anti-intermediary in a cultural sense. It resists the creation of official guardians between citizen and argument. It does not require refined culture. It permits bad speech, vulgar speech, foolish speech, and quite a lot of speech that demonstrates the democratic case against universal literacy. But it preserves the public space in which judgment can occur.

A republic without public judgment becomes a managed population. The First Amendment exists, in part, to prevent that dismal promotion.

XII. Private Intermediaries and the Constitutional Analogy

The twelfth predicate concerns private and quasi-private intermediaries. The Constitution generally restrains state action, not private conduct. That distinction must be kept. A bank, platform, payment processor, exchange, standards body, or private association is not automatically a constitutional actor merely because it is powerful.

Yet constitutional law has long recognised dangers in private delegation and state entanglement. In Carter v. Carter Coal Co., the Court condemned a statutory scheme allowing private coal producers and miners to impose binding regulations on dissenting minorities within the industry.[40] In Department of Transportation v. Association of American Railroads, the Court confronted Amtrak’s role in developing metrics and standards, rejecting the premise that Amtrak was merely private for constitutional purposes when Congress had created it, structured it, and given it governmental objectives.[41]

The doctrine is limited, but the principle matters. Government may not evade constitutional restrictions by laundering coercive authority through private hands. If private power becomes the instrument of public command, constitutional questions arise. If public power delegates coercive rulemaking to private actors without adequate control, accountability becomes fiction.

This has obvious relevance to modern governance. Much rule today is exercised through standards, platforms, certification, payment access, licensing conditions, public-private partnerships, procurement requirements, and soft-law mechanisms. Not all of this is unconstitutional. Much of it is unavoidable. But the constitutional suspicion remains: who decides, under what authority, and subject to what remedy?

The intermediary’s favourite trick is to say that no one is coercing anyone. Then it controls access, standards, payment, compliance, visibility, licensing, or survival. Constitutional law cannot solve every such problem, especially where genuinely private power is involved. But the Constitution supplies the analytic instinct: power that governs must be made answerable.

XIII. The Administrative Temptation

The thirteenth predicate is that expertise is always tempted to become rule. Experts see disorder and wish to rationalise it. They see local variation and call it inefficiency. They see inherited custom and call it irrational. They see constitutional delay and call it obstruction. They see political accountability and call it populism.

The Constitution answers with deliberate inconvenience. Bicameralism is inconvenient. Presentment is inconvenient. Federalism is inconvenient. Jury trial is inconvenient. Appointments rules are inconvenient. Judicial review is inconvenient. The Bill of Rights is a festival of inconvenience. That is the point. Free government is a system of dignified obstruction.

The administrative mind often mistakes obstruction for failure. It assumes that because a thing could be done more quickly by fewer people behind closed doors, it should be. But constitutional government does not exist to maximise administrative velocity. It exists to prevent power from flowing downhill unchecked.

This does not mean the Constitution prohibits administration. Congress may create agencies. Agencies may regulate within statutory bounds. Officers may exercise discretion. Courts may respect technical expertise. The executive may implement complex programmes. But assistance is not sovereignty. Expertise informs decision. It does not replace authority.

A republic may employ experts. It may not be ruled by them as an unanswerable class.

XIV. Counterarguments

The strongest counterargument is that modern government is too complex for strict constitutional accountability. Congress lacks technical knowledge. Agencies possess expertise. National markets cross state boundaries. International obligations matter. Public health, finance, communications, securities, energy, and technology require specialised administration. Therefore, the argument goes, insisting on old constitutional forms risks paralysis.

This objection has force. A serious argument must admit it. The Constitution is not a suicide pact against administration. Congress may delegate within limits. Agencies may implement. The President may act through departments. Federal law may preempt state law within enumerated powers. Treaties may bind the nation. Courts may consider agency expertise. States may cooperate with federal programmes.

But this counterargument fails when converted into a theory of insulation. Complexity justifies assistance; it does not justify abdication. Expertise informs judgment; it does not replace constitutional authority. Administration executes law; it does not become law. International obligation guides national conduct; it does not dissolve domestic constitutional structure.

The second counterargument is democratic: if Congress creates agencies, then agency action is democratically authorised. This is half true, which is the most efficient form of falsehood. Agency action may be democratically authorised when Congress supplies a meaningful rule, the agency acts within statutory bounds, officers are properly appointed, executive supervision is constitutionally adequate, judicial review remains available, and individual rights are respected. But a blank cheque does not become constitutional because an elected body signed it.

The third counterargument is practical: accountability is already diffuse in a complex republic. That too is true. But constitutional law exists precisely to prevent diffusion from becoming disappearance. The answer to imperfect accountability is not to abandon accountability as an unfashionable relic. It is to strengthen the chain.

XV. Final Argument

The final argument can now be stated as a series of predicates.

First, the Constitution rests on popular sovereignty expressed through constitutional form, not through administrative improvisation.

Second, Article I vests legislative power in Congress and subjects lawmaking to bicameralism and presentment.

Third, separation of powers prevents any branch, agency, officer, or institutional class from converting convenience into command.

Fourth, accountability requires traceability: the citizen must know who made the rule, who executed it, and who judged its violation.

Fifth, nondelegation and the major questions doctrine prevent Congress from hiding major legislative choices inside administrative discretion.

Sixth, the Appointments Clause and removal doctrine ensure that officers exercising federal power are constitutionally placed and politically answerable.

Seventh, Article III and the Seventh Amendment preserve independent judgment where constitutional adjudication or jury trial is required.

Eighth, federalism and anti-commandeering doctrine prevent the federal government from laundering its policies through state officials.

Ninth, treaty power and international obligation do not supersede the Constitution or automatically convert external judgments into domestic law.

Tenth, republican government requires a people capable of judging, correcting, and removing power.

Eleventh, a system of unaccountable intermediaries, whether administrative, supranational, technical, or quasi-private, is constitutionally suspect because it severs power from answerability.

Twelfth, therefore the American constitutional order is best understood as a legal architecture against intermediary sovereignty.

The Constitution does not promise wise rulers. It promises rulers who can be identified, checked, limited, sued, voted against, impeached, contradicted, and occasionally removed from office with all the ceremony appropriate to public failure. This is not perfection. It is better. It is a structure for governing creatures who are neither angels nor algorithms.

A supranational administrator may be more polished. An agency expert may be more informed. A private intermediary may be more efficient. A committee may be more decorous. But the constitutional question remains: who gave you power, through what form, under what limit, and answerable to whom?

If that question cannot be answered, the system has already left the republic.

It may still have offices, seals, procedures, consultations, hearings, experts, and slogans. It may even have elections, in the same way a theatre has exits: visible, reassuring, and not necessarily relevant to who controls the performance.

The Constitution’s genius is that it refuses to confuse management with legitimacy. It does not worship efficiency. It does not trust virtue. It does not assume enlightened statesmen will always be at the helm. It builds a government in which ambition checks ambition, states check the centre, courts check agencies, juries check officials, elections check rulers, and procedure checks appetite.

That is not nostalgia.

That is constitutional law.

References and Authorities

[1] U.S. Const. pmbl.; art. I, § 1; art. II, § 1; art. III, § 1.

[2] The Federalist No. 10 (James Madison).

[3] U.S. Const. art. I, § 7.

[4] INS v. Chadha, 462 U.S. 919 (1983).

[5] Clinton v. City of New York, 524 U.S. 417 (1998).

[6] The Federalist No. 51 (James Madison).

[7] Bowsher v. Synar, 478 U.S. 714 (1986).

[8] Buckley v. Valeo, 424 U.S. 1 (1976).

[9] Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010).

[10] Seila Law LLC v. Consumer Financial Protection Bureau, 591 U.S. 197 (2020).

[11] J.W. Hampton, Jr. & Co. v. United States, 276 U.S. 394 (1928).

[12] Panama Refining Co. v. Ryan, 293 U.S. 388 (1935).

[13] A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935).

[14] West Virginia v. Environmental Protection Agency, 597 U.S. 697 (2022).

[15] Loper Bright Enterprises v. Raimondo, 603 U.S. ___ (2024).

[16] Buckley v. Valeo, 424 U.S. 1 (1976).

[17] Edmond v. United States, 520 U.S. 651 (1997).

[18] Lucia v. Securities and Exchange Commission, 585 U.S. 237 (2018).

[19] United States v. Arthrex, Inc., 594 U.S. 1 (2021).

[20] Kennedy v. Braidwood Management, Inc., 606 U.S. ___ (2025).

[21] Northern Pipeline Construction Co. v. Marathon Pipe Line Co., 458 U.S. 50 (1982).

[22] Stern v. Marshall, 564 U.S. 462 (2011).

[23] Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989).

[24] Securities and Exchange Commission v. Jarkesy, 603 U.S. ___ (2024).

[25] U.S. Const. amend. X.

[26] New York v. United States, 505 U.S. 144 (1992).

[27] Printz v. United States, 521 U.S. 898 (1997).

[28] Murphy v. National Collegiate Athletic Association, 584 U.S. 453 (2018).

[29] United States v. Lopez, 514 U.S. 549 (1995); United States v. Morrison, 529 U.S. 598 (2000).

[30] National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012).

[31] U.S. Const. art. II, § 2, cl. 2.

[32] U.S. Const. art. VI, cl. 2.

[33] Missouri v. Holland, 252 U.S. 416 (1920).

[34] Reid v. Covert, 354 U.S. 1 (1957).

[35] Medellín v. Texas, 552 U.S. 491 (2008).

[36] Bond v. United States, 572 U.S. 844 (2014).

[37] U.S. Const. art. IV, § 4.

[38] Luther v. Borden, 48 U.S. 1 (1849); Pacific States Telephone & Telegraph Co. v. Oregon, 223 U.S. 118 (1912).

[39] U.S. Const. amend. I; West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943); Brandenburg v. Ohio, 395 U.S. 444 (1969); Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995).

[40] Carter v. Carter Coal Co., 298 U.S. 238 (1936).

[41] Department of Transportation v. Association of American Railroads, 575 U.S. 43 (2015).