Scholars warn that U.S. constitutional democracy is at risk of erosion or breakdown. Courts are usually taken to be the main defenders of constitutional democracy. However, the recent record of the U.S. courts in carrying out this task has been poor—often, the Supreme Court appears to exacerbate, rather than to correct, political process failures. Constitutional designers around the world have reached the conclusion that courts alone are not enough: they have constructed other independent accountability institutions, such as election commissions, anticorruption commissions, and national human rights institutions, to shore up democratic weak points. The United States is taken as an exception to this trend. However, this Article argues that if one looks at the legislative level rather than exclusively to the constitutional text, this is not true. In fact, the United States has over time constructed a dense network of non-judicial independent accountability institutions running across three major issue areas of elections, integrity, and protection of minority rights. These institutions have shown surprising pockets of strength, particularly historically, but they have also struggled to carry out their core missions. Moreover, they are currently facing an acute threat, as the second Trump administration has acted rapidly to remove the heads of many of these institutions, abetted by the Supreme Court’s seemingly near-total embrace of the unitary executive theory. This Article maps the U.S. independent accountability institutions and considers how they might be rethought to survive the current crisis and emerge better prepared to defend U.S. democracy in the future.
* Tobias Simon Eminent Scholar Chair & Associate Dean for International Programs, Florida State University College of Law. I thank Rosalind Dixon and participants at a panel at the annual meeting of the Law and Society Association in Denver, Colorado for helpful comments on this article.
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