Presidential Signature Requirements As a Tool for Enforcing Democratic Accountability

Abstract

As the size and scope of the executive branch has expanded in recent decades, interest in ensuring that it can nonetheless be held accountable to the voters has increased. Litigation regarding the scope of the President’s removal power has been one important mechanism for ensuring democratic accountability. Some of these cases are discussed in other papers in this symposium. While enforcing these constitutional democratic accountability provisions is important, they provide just the floor for democratic accountability. Congress may, and should, pass legislation that takes additional measures to protect the value of democratic accountability.

This paper will focus on twin statutory provisions already put into place primarily to protect democratic accountability – the requirements in Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972 that all rules promulgated under these statutes be signed by the President. The President later delegated this signature responsibility to the Attorney General, a delegation that I argue is unlawful. Title VI and Title IX rules not signed by the President can, and should, be challenged as improperly issued. Congress should also consider when appropriate, such as when regulating in particularly controversial areas, adding Presidential signature requirements to new statutes to protect democratic accountability.

Keywords: Title VI, Title IX, Civil Rights, Democratic Accountability, Anti-Discrimination

JEL Classification: K00