Thomas Jefferson thought farmers should rule the world. The current United States Supreme Court is more inclined to let the President rule. Maybe that dichotomy is a bit overdrawn, but a conflict does exist. Even in the United States, where agriculture has changed from a diverse individual endeavor to a consolidated, high-tech industry with access to the halls of power, there is dissonance between the ideal of self-sufficient and self-directed farmers and the reality of a powerful federal government that is deeply engaged with food and agriculture policy. How then do we give some meaning to the ideal of independent farmers alongside the reality of vast food and agriculture regulation? And what does the Supreme Court have to do with all of this?
Seila Law, LLC v. Consumer Financial Protection Bureau
On June 29th, the United States Supreme Court decided Seila Law, LLC v. Consumer Financial Protection Bureau, a case that broadened presidential power. On its face the decision has nothing to do with farmers, but stay with me for a minute. The U.S. Constitution provides some inherent powers to the President, such as the power to command the military, but most of what the President does is implement the laws that Congresses passes. Of course, the President does not have the capacity to do this alone, given that Congress has been passing laws for centuries and the laws cover issues as diverse as regulating securities and managing public lands. Administrative officials, therefore, do much of the real work. Congress creates most of these administrative offices and the President, with approval from the Senate, appoints individuals to fill the roles. Until the Supreme Court decided the case of Seila Law, there was some question about how much power the President had to remove these administrative officials from their jobs.
Seila Law deals with the official who directs the Consumer Financial Protection Bureau. Congress created the Bureau to oversee the safety and transparency of consumer debt products. To make sure that work was largely free of partisanship and political pressure, Congress gave the organization a single director who the President would appoint to a 5-year term of office. Congress also said that the President may not fire the director during the term except for, basically, bad behavior. In other words, the President may not fire the director for political reasons. The Supreme Court had to decide whether this tenure protection was constitutional. The Court held that in most circumstances the Constitution prohibits Congress from limiting the President’s ability to fire officers. That, finally, brings us to the farmers.
A short history of agricultural administration and government-by-farmer
Agriculture was one of the hardest hit industries during the Great Depression and one of the first subjects of New Deal legislation. In 1933, Congress settled on supply-reduction strategy to stop the collapse of American agriculture. Under the new strategy the government would pay farmers to reduce their production, thereby limiting supply and raising prices. The higher prices would keep farm businesses alive and assure continued, albeit reduced, food production. The trick with this strategy was that in 1933 there were nearly 7 million fiercely independent farmers in the U.S. How was the government supposed to administer a law that required monitoring of every farm field and calculating payments to every farmer? Certainly, a team in Washington could not do the job.
The tension between plainly essential agriculture regulation and nearly impossible agriculture administration birthed a new form of governance in the U.S. Rather than administration from Washington, lawmakers settled on the idea of letting farmers elect administrators from their own ranks. Instead of the President deciding who should run farm programs, farmers in each county in the U.S. would elect a committee to implement the national agriculture programs. These committees operationalized the Jeffersonian vision of government-by-farmer, but they also carried forth other worldviews. The committees were a new management tool that allowed the government to grow while still having local control, they were a way to bring private industry into government and thereby either buy compliance or assure that regulation did not exceed what the regulated industry was willing to accept. Most strikingly, the elected committees were a tool to embed agricultural racial hierarchies into the governance regime, allowing well-connected farmers even more control over the flow of information and money at the expense of, primarily though not exclusively, black farmers. Unsurprisingly, this institutional racism exists in agriculture to this day, though it is a topic for another post.
One reason the committees are so important, and were so able to disadvantage black farmers, is that they wield significant state power. The committees were, and to some extent still are, responsible for deciding which federal programs are available in a given county; for setting county-wide policy, such as the dates by which farmers must plant their crops in order to be eligible for federal support; and they are responsible for enforcing federal law, such as inspecting farms to determine their compliance with the law and resolving disputes under the law. Put simply, these elected farmer committees are traditional federal administrators and regulators in almost every respect. Except they are elected.
The implications of Seila Law
It is hard to overstate how unusual this electoral arrangement is in the U.S. federal system. But that is where the Supreme Court’s decision in Seila Law reenters the picture. One reason the Supreme Court gives the President so much control over administrative officers is because the Court has long assumed that administrators are unaccountable insofar as they are unelected. In fact, over the years, the justices of the Court have written that “people do not vote for Officers of the United States” so we ought not give too much power to “unelected federal bureaucrats,” and we should worry about “unaccountable policymaking by those not elected to fill that role”. Assuming that these administrators are not elected, it makes some sense that the President, who is elected, is the best source of political accountability. If the President has generally unrestricted power to hire and fire, then the President’s authority can transfer to administrators.
The elected farmer administrators complicate this line of judicial thinking and, not surprisingly, the Court has completely ignored these elected administrators in making its case for presidential control. So what do we make of a legal system where the President must hire and fire administrators but there are nearly 8,000 elected farmer administrators in the federal government? How do we close the gap between unfettered presidential power and self-directed farmers?
There is no simple answer. But there is a complicated answer. In fact, the reason this farmer-presidential gap exists is because both Congress and the Court have been so intent on justifying all governance through majoritarian voting. Majoritarianism explains elected farmers and it explains why the Court continues to accumulate power in the elected President. But these two majoritarian strategies cannot exist side-by-side. The Court cannot at the same time demand the President have power to appoint and remove most federal officers while also allowing elected farmer committees, unconnected to the President, to exercise real authority. After all, those committees are “appointed” by voters and only voters can remove them. The President has no role. By this measure either the Court is wrong in giving the President so much power or the farmer committees are unconstitutional.
Towards a thicker concept of administrative legitimacy
Or both. And that is where I land. Both the Court’s rush to give the President greater power over administration and the older effort to make farm administration more populist are rooted in the idea that majoritarianism is the beginning and end of legitimate governance. The fact that these two majoritarian strategies run into direct conflict is some evidence that majoritarianism is not, in fact, a complete answer to what makes for good governance. Instead, both Congress and the Court should be looking for more complex justifications, justifications that include majoritarian voting but also opportunities for meaningful individual participation, reasoning-giving, and deliberation. Any system that leans too heavily on just a vote is likely to rely too little on other important aspects of government decisionmaking. Voting sounds good, it is easy to explain, and surely “multi-faceted coercive legitimacy” does not command the same devotion, but if the U.S. is to maintain a society that stretches from Jefferson’s rural homesteads to Washington’s Pennsylvania Avenue, it will need more than majoritarian platitudes in between.
Joshua Ulan Galperin is Visiting Associate Professor of Law at the University of Pittsburgh School of Law. (twitter: @joshgalperin)