The Unelected: How an Unaccountable Elite Is Governing America

America is increasingly polarized around elections, but as James R. Copland explains, the unelected control much of the government apparatus that affects our lives. Congress has largely abdicated its authority. “Independent” administrative agencies churn out thousands of new regulations a year. Courts have enabled these agencies to expand their powers beyond those authorized by law―and limited executive efforts to rein in the bureaucratic behemoth. No ordinary citizen today can know what is legal and what is not. Some 300,000 federal crimes exist, 98 percent of which were created by administrative action rather than Congressional lawmaking. The proliferation of rules and the severity of sanctions give enormous discretion to unelected enforcement agents―upending the rule of law. Private attorneys regulate vast swathes of conduct through lawsuits, based upon legal theories never voted upon by the people’s elected representatives. A combination of historical accident, decisions by judges and law professors, and self-interested advocacy by the plaintiffs’ bar have left the United States with the world’s most-expensive litigation system. Finally, state and local officials have increasingly pursued agendas to dictate the terms of national commerce. In reaching beyond their borders, these “new antifederalists” have been subjecting the citizens of Wyoming and Mississippi to the whims of the electorates of New York and San Francisco―inverting the constitutional design. In this timely new book, Manhattan Institute legal scholar Copland discusses how unelected actors have assumed control of the American republic―and where we need to go to chart a corrective course.

“America emerges from its deepest recession in decades, businesses need clear laws to follow. Unfortunately, shifting regulations, uncertain enforcement, and shakedown lawsuits are far too common. And local officials regularly reach past their borders to interfere with the economies of other states and municipalities. James Copland’s new book explores all these trends and suggests ideas we should be discussing to get on a better path.”
— Thomas J. Donohue, Chief Executive Officer, U.S. Chamber of Commerce

“How do unelected power players exploit law and regulation to call the shots in American government and policymaking, while often doing very well for themselves in the process? Jim Copland knows more about this subject than almost anyone -- and after you read this book, you will know too.”
— Walter K. Olson, Author, The Litigation Explosion; Senior Fellow, Cato Institute

“In this masterful history, Jim Copland shows how the law of the land became more like the law of the jungle. Who’s responsible? That’s the problem — Nobody. Bureaucrats and lawyers of a certain disposition use law as a weapon for extortion, beyond the control of democratically elected officials and timid judges.”
— Philip K. Howard, Author, The Death of Common Sense; Founder, Common Good

“The Unelected is valuable reading for anyone committed to a republican form of government. Copland identifies multiple aspects of the regulatory state that are fairly opaque and unaccountable but wield considerable unchecked power over Americans, who should expect elections to matter more. His call for public policy efforts to return authority to voters that is not reliant on the courts is worthy of serious debate and consideration.”
—Leonard Leo, Co-Chairman, Federalist Society for Law and Public Policy Studies

James R. Copland is a senior fellow at the Manhattan Institute and director of legal policy. In those roles, he develops and communicates novel, sound ideas on how to improve America’s civil- and criminal-justice systems. Copland has testified before Congress as well as state and municipal legislatures, and he has authored many policy briefs, book chapters, articles, and opinion pieces in a variety of publications, including the Harvard Business Law Review, Yale Journal on Regulation, Wall Street Journal, National Law Journal, and USA Today. Copland speaks regularly on civil- and criminal-justice issues; has made hundreds of media appearances in such outlets as PBS, Fox News, MSNBC, CNBC, Fox Business, Bloomberg, C-SPAN, and NPR; and is frequently cited in news articles in the New York Times, Washington Post, The Economist, and Forbes. In 2011 and 2012, he was named to the National Association of Corporate Directors “Directorship 100” list, which designates the individuals most influential over U.S. corporate governance.