In general, people are going to interpret this EO with their own lens. Unsurprisingly, reasonable people may disagree on the merits of the EO as a whole.
However this part of the EO is pretty concerning
> 'The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch'
and later
> 'No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law'
This can potentially enable an end run around congress and the courts in that the President can easily choose to interpret laws in a manner inconsistent with the intent of congress and courts. Now, we can argue the point and say that presidents have already done so in the past and that congress/courts should have been more specific. However it quickly gets into the issue of the impossibility of congress or the courts anticipating and specifying every detail to avoid a 'hostile' interpretation.
This part of the EO says the president's opinion is the law as far as the executive branch is concerned. Given that the executive branch implements the law, this would imply that the president's interpretation is all that matters. The other two branches have no real role left to play. Given the supreme court's ruling on presidential immunity, this is a dangerous level of power concentration.
Even if you support the current president's goals and objectives, setting up the president as the sole power center is an inherently unstable system. Nothing prevents the next president from having a radically different opinion. There is a very good reason why the founding fathers built in an elaborate system of checks and balances.
Even with a highly sympathetic Supreme Court it is hard to imagine this EO standing.
It goes against the foundation of not only US law, but couple of hundred years of international democratic tradition in which allegiance is not to a person, but to the nation itself.
US civil servants and military alike swear an oath to support and defend the Constitution not the president or their commander. Illegal orders are not only expected, but required to be disobeyed.
This EO eliminates the concept of an illegal order since the law would be whatever the executive interprets it to be.
There used to be competing centers of power. But then they stacked the judiciary and used manipulative propaganda to turn the congress and senate into a rubber stamp. The only check on power was having the interest of those institutions not aligned with each other, for them to have power that they were able to exercise independently.
> It goes against the foundation of not only US law, but couple of hundred years of international democratic tradition in which allegiance is not to a person, but to the nation itself.
The United States had a spoils system of government administration until at least the late 1800s. The spoils system was still prevalent in many state and city governments until the mid 1900s.
This didn't mean officials were permitted to violate the law, but self-dealing and bald partisanship in administration was rampant, and of course violations of the law often went unpunished as administration officials had (and have) discretion to prosecute.
This EO eliminates the concept of an illegal order since the law would be whatever the executive interprets it to be.
How do you come to that to conclusion, especially in the context of the EO?
This EO doesn't change the Constitution's requirement that the President "take Care that the Laws be faithfully executed".
I'm not a lawyer but I would interpret this EO to say "it is the job of the President to execute the laws passed by Congress" and "the President may employ subordinates in that execution", however "these subordinates must still execute based on the President's interpretation, not their own".
The EO has a long section on "independent agencies which operate without Presidential supervision". This is what the EO clarifies.
> This EO eliminates the concept of an illegal order since the law would be whatever the executive interprets it to be.
This isn't true at all. This EO doesn't change the fact that President is held accountable by the judicial branch for following the law.
> "these subordinates must still execute based on the President's interpretation, not their own".
Yes, this is a problem, because it would mean that if the President (for simplicity, the order also specified the AG, but it doesn't really change the issue) had an opinion on the law, and the courts issued an order to an executive officer such as a department head in a lawsuit contrary to that interpretation, the department head would remain bound by the Presidential interpretation until the President relented, since the meaning and effect of a court order is no less a matter of interpreting the law than the meaning and effect of a regulation, statute, or Constitutional provision.
Sec. 7 is so ridiculous on its face that, while I am sure the Administration seriously does want to impose as much of this control as it can get away with, I think it was largely included as a lightning rod to distract from the rest of the order moving control of all independent agencies internal spending allocations into OMB and the Executive Office of the President and otherwise purporting to transfer effective control of the functions assigned by law to the independent agencies to be exercised by their boards into the White House.
> the department head would remain bound by the Presidential interpretation until the President relented
I don't know what you mean by "bound"?
The President, EOs and the exective branch are not immune from court decisions.
If a court rules again an EO, the President would need to abide by that court decision. As per this EO, the department head would do what the President wanted (align to the court order), and would thus be in compliance with the court order.
In the case the President decides to ignore the court order, the department head has an option - do what the President says or do what the court says. If they decided to do what the President says they would also be in violation of the court order. If they did what the court said, they would likely be fired.
It's not like this EO really changes the situation? Before this EO a department head would have the same choices and face the same risk of being fired.
> Sec. 7 is so ridiculous on its face that, while I am sure the Administration seriously does want to impose as much of this control as it can get away with
I'm not sure what you mean? Why is it ridiculous that an agency which derives it's authority from the executive be able to ignore the head of the executive's interpretation of the law? Who would they be accountable to if not the US President? Nobody?
There are no "independent agencies" under the US Constitution. All agencies exist under the purview of the President. What Section 7 says is "no executive agency employee may make an independent interpretation of a law outside that determined by the head of the executive".
This is entirely aligned with prior US Supreme Court decisions that the US President has sole authority over the Executive Branch.
I'm not sure we'd want to have an unelected executive agencies that is unaccountable to head of the executive branch. That just wouldn't even make sense.
The constitutional argument is ridiculous; we've really been frog boiled into a wildly different understanding of executive power than even the most monarchical Founders imagined. Article II sections 2 and 3 are short and grant almost no powers. Practically all executive power outside stuff like appointments and pardons derives from this clause: "he shall take Care that the Laws be faithfully executed". Nearly all governmental power resides in Congress, on purpose, as it's the most democratically responsive yet least efficient of the branches. For example, a lot of people probably think either Commerce or Treasury mint coins. Nope, constitution says that's Congress. People think State, or maybe Commerce negotiates trade treaties; nope Congress again. Post Office? Congress.
What this means is that the President executes Congress' will. Reading the Constitution, there's just no argument for anything else. You have to dig into subsequent history, acts of Congress, and Supreme Court decisions to reach the justifications for the wild increase of presidential power. I'm not saying this is bad per se, just that the Constitution argument is absolutely bankrupt and ahistorical: there was zero appetite for a powerful executive in the Continental Congress.
That's what's so radical about this EO: it's antithetical to the very founding of the US where we rebelled against a king and ultimately adopted a constitution with a very weak executive. It supplants the will of Congress with the will of the executive, undermining the separation of powers, plenary powers, and the very underpinnings of our government.
> It's not like this EO really changes the situation? Before this EO a department head would have the same choices and face the same risk of being fired.
No, this is completely false. The President doesn't have the authority to fire a department head for following a court order, and if they tried they would get sued and clearly lose, and be forced to reinstate the fired person, and other employees would follow this pattern.
With this EO, the President does get this exact authority, and the courts would be forced to side with the president in the matter of the firing, if the EO is allowed to stand by the SC.
> Who would they be accountable to if not the US President?
Accountability does not require absolute control. A subordinate official can be permitted (even mandated) to exercise independent judgement and still be accountable for mis-, mal-, and nonfeasance to a higher authority.
And this has, with different precise parameters, long been the statutory model governing the President’s relations with much of the executive branch, with different specific rules applicable to civil service employees generally, Inspectors-General and a few other specially-designated employees in regular departments, and independent agencies.
> I'm not sure we'd want to have an unelected executive agencies that is unaccountable to head of the executive branch. That just wouldn't even make sense.
Independent agencies, that execute their mission rather than the whims of one man (and are accountable to the law) don't make sense to you?
What I'm talking about is accountability for interpretation of the law.
Let's say the head of an agency decides their interpretation of the law is X, but the President thinks it's Y. You can't bring them to court because X and Y fall within the interpretation of law.
If agencies were not accountable to the President, you basically have an unelected/unaccountable (when it comes to policy within interpretation of the law) bureaucrat that the voters are unable to hold accountable.
With this EO, the voters can elect a President who can then direct the agency head to execute interpretation Y.
The president names the agency heads, and their mandates expire roughly or exactly at the same time as the president's. That's more than enough control. The president can't and shouldn't then go and get into the weeds of specific policies that those agency heads then coordinate.
Also, settling the ultimate interpretation of the law is indeed the prerogative of the courts. This has actually changed quite recently in some ways - the SC has recently struck down the Chevron Doctrine, which held that the courts would defer to the executive when a law could be interpreted in different ways. So right now if Congress passes a law that says "the EPA shall insure that American citizens have potable drinking water", it is ultimately up to the courts to decide if the level of lead in water set by the EPA makes the water potable or not.
But however you slice it, the president shouldn't be the one to decide if the level of lead in water being enforced by the EPA is too little or too much. If the head of the EPA and the courts believe that a certain level is good enough, than that's that. After all, the president chose this head of the EPA. The next president can choose another head.
It's to be seen how "interpretation" is interpreted, if the president can declare it doesn't mean what it clearly does.
If a law is too much subject to interpretation, anyhow, the congress, which is the branch deputed at making the law, can change it at any time.
And most of all, I'm not sure in the US case, but when there are interpretation disputes you typically can have courts declare what's the correct interpretation.
> Let's say the head of an agency decides their interpretation of the law is X, but the President thinks it's Y. You can't bring them to court because X and Y fall within the interpretation of law.
Uh, who is “you” in this scenario? Because for most reasonable values, yes, you can.
Differing interpretations of the law by different executive branch officers have never stopped outside parties from suing those executive officers over their execution of the law, with the courts ultimately deciding the correct interpretation (sometimes with some degree of deference, but never absolute, to executive interpretations.)
Again, they're accountable to the laws that regulate them and the judicial system, in their every action.
It's something extremely common in normal democracies, and if it's really antithetical to US civics, that's just another proof that the US were only a pretence of a democratic system.
Also, they're run by people appointed by elected officials, just like any other government agency. They serve according to laws passed by the people's representatives and signed by the president, and they can be removed from their positions according to the law, as well. The theory that all executive authority must stem from the president's will and be subject to his whim is novel, monarchical, and highly dangerous.
No because "independent agency" just mean the agency was established by law, with a specific mandate and regulations that the President can't independently change.
It doesn't mean the agency isn't a part of the Executive branch with the President at it's head and it doesn't mean the President can't fire them for specific reasons.
> The President, EOs and the exective branch are not immune from court decisions.
Sure they are, if they want to be. Federal courts don't have their own enforcement arm. Even if they find specific officials in contempt of court, and order them arrested, Trump can simply order the US Marshals service to just... not arrest them.
Under this EO he could even choose to “interpret the law” such that it was illegal for the Marshal’s service to arrest executive branch officials without explicit Presidential permission (and this flows naturally from the same version of unitary executive theory as this EOs rule on legal interpration itself relies on), and it would not only be a violation of this order for them to carry out the arrest, but it would be a violation of the order for anyone in the executive branch to disagree that that was the law.
> Trump can simply order the US Marshals service to just... not arrest them.
Yes. Or even more perniciously, just note the arrests have been put on the long “to do list”, to be studied fully, and carried out with special care, all of which takes time…
Because of course the arrest order is being taken seriously and the courts decisions respected.
> Yes, this is a problem, because it would mean that if the President (for simplicity, the order also specified the AG, but it doesn't really change the issue) had an opinion on the law, and the courts issued an order to an executive officer such as a department head in a lawsuit contrary to that interpretation, the department head would remain bound by the Presidential interpretation until the President relented, since the meaning and effect of a court order is no less a matter of interpreting the law than the meaning and effect of a regulation, statute, or Constitutional provision.
I don't think that's true? Court orders are orders, not laws, and the two are very different.
This executive order doesn't change anything about that as far as I can see. If the president says the law means one thing, other executive agencies have to follow that interpretation - but the courts will still do their own thing, and a court order is just as binding whether you agree with it or not (and indeed whether it's legally correct or not).
Before this EO the executive branch policy on court orders was "always listen to them." This EO changes that to "ignore court orders if they conflict with what the president wants"
How? Court orders aren't a matter of interpretation of the law. Agencies might follow interpretations of the law that blatantly conflict with court orders when considering matters not directly covered by those court orders, but they've already been doing that for decades, the EO doesn't change anything about that.
The question of which federal laws to enforce is indeed controlled by the president. That's already normal and has been used by many presidents to de facto change the law (e.g. weed non-enforcement, various immigration amnesties). But that's got nothing to do with court orders.
> The executive shall enforce orders, because it is bound by laws to do so
No? They don't do their job because the law compels them to do (often it doesn't, e.g. the police don't have any positive legal obligation to make arrests or what have you). They do their job because it's their job.
> This EO doesn't change the fact that President is held accountable by the judicial branch for following the law.
Didn't the judicial branch say that presidents have broad(or near total) immunity for their official acts? Then how is the judiciary going to hold the president accountable when they choose to interpret the law based on personal whim?
With this EO, every federal worker has to adhere to that whim or face dismissal at best or prosecution at worst.
> This EO doesn't change the fact that President is held accountable by the judicial branch for following the law.
That's the big question, though, isn't it? Will current SCOTUS actually pass down rulings based on the law and constitutionality, or will they defer to Trump on many/most/all things?
And if they pass down a ruling that Trump doesn't like, will he obey the court? Or will he just instruct his people to ignore it? Federal courts and SCOTUS don't really have much or anything in the way of enforcement power, if the executive branch wants to ignore them.
The only real backstop to this is Congress' power to impeach. Which won't happen. And even if it did, would Trump actually leave office? And if he didn't, who would have the ability and willingness to step in and force him to leave?
If the answer to all this is "the military", whoooo boy, are we in trouble. And even that assumes all the military leadership hasn't been retired by then, with Trump loyalists installed in their place.
The nuance here, based on the EO, is rank file and employees of these agencies must now rely on the sole interpretation of the law by either the president or the AG instead of themselves. These _were_ independent agencies who handled their own interpretation of the law.
If you combine this EO with the Supreme Court immunity decision, there may very well be a situation where a rank and file employee acts illegally based on the president's interpretation of the law. This would create a situation where there is a legal challenge about whether a member of the executive branch should be granted the same immunity privileges as the president since they are an extension of the president. You can imagine where things will head if we end up on the wrong side of this decision.
> rank file and employees of these agencies must now rely on the sole interpretation of the law by either the president or the AG instead of themselves. These _were_ independent agencies who handled their own interpretation of the law
At first glance, it seems like it's a positive thing for all members of the executive branch adhere to the same interpretation of the law. It's the definition of "arbitrary and capricious" if one executive agency interprets the same law differently than another. As others have commented, the president or AG's interpretation is still open to judicial review.
Judicial review won't automatically change the president's mind. And according to this order, executive branch employees must only look at the president's decisions, not at what other branches of government say. Even if a judge issues an injunction against some decision by the president, federal employees acting on that judicial order will be fired for not performing their duty to the president.
The fact that the President was granted that immunity in the first place by a so-called "conservative" Supreme Court should make it abundantly clear that the "conservative" movement fully intends to take it as far in the wrong direction as they feel they need to. The goal? to secure absolute power and therefore a future in which the ultra-wealthy rule America with an iron fist, and dissent can be crushed easily. The techniques are all fascist, but the film Metropolis is the end game, not another Holocaust -- but if a good old genocide helps rally the voter base, then so be it.
Seems like an enormous organizational challenge to even get through the queue of other US gov agency attorneys wanting to know the presidents opinion on just how many ppm of this particulate is allowed per the statute. Such that the new status quo will be no enforcement at all. And maybe that's just fine w this administration.
> It goes against the foundation of not only US law, but couple of hundred years of international democratic tradition in which allegiance is not to a person, but to the nation itself.
Yes. It does.
But there is an older Big Man tradition where loyalty to the nation is indistinguishable from loyalty to the person, the Big Man).
I naively thought that that was a stage that democracies passed through (we see it a lot in the South Pacific - the Big Man.
So sad. So terribly sad. We all like to tease Americans for being this and that, but now it feels like punching down.
fellow Blindboy listener, and/or is "dog bless" common elsewhere, too?
And yeah, it's about time we (I'm from the USA) got off our high horse and accepted we're a collection of humans with cultures, traditions, languages, habits, and messy traumatic history like everywhere else.
It’s pretty amazing. A few days ago someone posted a comparison of the oath of allegiance for officers before and after Hitler, and it has basically exactly the same change.
I know this sounds corny, but people are the recourse. We are part of the checks and balances.
Whether it is as overt as a soldier refusing to follow an illegal order knowing they are risking court marshal, or as clandestine as mid-level bureaucrat slow-walking damaging policies, or people actually voting in local-to-national elections.
I completely agree, which is why I’m very pessimistic about the outlook. I have no faith that the American public is up to the task. It will demand too much discomfort, and sacrifice, while the alternative will ask only that they do nothing.
Only recently has it become placid in the US. I expect social media also removes the desires to actually march or do something even louder. If Biden was this busy we'd be hearing a lot more "2nd Amendment!" talk.
> I know this sounds corny, but people are the recourse. We are part of the checks and balances.
By "we" here, it seems you mean bureaucrats. But what if your opinions, as an individual, unelected bureaucrat are bad? I don't care what a mid-level bureaucrat's opinions on what policies are damaging is. He could be a neo-nazi for all I know. Constitutionally, we should go with the opinions of the people who won an election, instead of some random dude. I was taught that was what "democracy" was, not some random person taking advantage of their position to advance their personal goals.
When the guy paid to guard the door starts making his own decisions about who should get to come in, it's not good. It's corruption.
> But what if your opinions, as an individual, unelected bureaucrat are bad?
That’s a slightly silly stance to take. Modern developed countries live and die by the quality of their bureaucracy. Making every bureaucratic role an elected position would be insane.
How on earth would you organise elections for every single DMV employee? Or every single park ranger? Or every single government accountant or secretary? Every single civil servant involved in collecting the data used to drive policy decisions.
To get rid of “unelected bureaucrats” you would basically have to turn every federal role into an elected role. The federal government employees around 3 million people, even if we say that only 10% of them are “real unelected bureaucrats”, that’s still 300,000 elections you would need to hold every X number of years. How on earth would anyone ever manage any of that?
Thats before we get to the insanity which is Musk, the epitome of the “unelected bureaucrat” who seems to be the one leading the charge on many of these “policy decisions”, and publicly lambasting “unelected bureaucrats” as being corrupt and “undemocratic”.
> How on earth would you organise elections for every single DMV employee? Or every single park ranger? Or every single government accountant or secretary? Every single civil servant involved in collecting the data used to drive policy decisions.
You can't. Which is exactly why the civil service is supposed to impartially implement the policies of the elected government rather than making their own judgements.
IMO the increasing partiality of these bureaucrats (who are drawn from the professional-managerial class and have the views of that class, which are increasingly out of step with those of the average citizen, especially on social issues) was one of the big contributors to Trump getting elected.
The policies of the elected government in the United States are decided by the legislative branch, as bills that are passed into law. By ignoring U.S. code, bureaucrats would be violating the U.S. Constitution.
"The Congress shall have Power ...
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof"
- Article 1, §8, United States Constitution.
> "The Congress shall have Power ... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" - Article 1, §8, United States Constitution.
Don't stop there, carry on and read Article 2: "The executive Power shall be vested in a President of the United States of America...he shall take Care that the Laws be faithfully executed". Nothing in there about anyone else taking the faithful execution of the laws upon themselves.
Bit weird to make a fuss about the constitution just to say the law is the law, you make it sound like breaking the ordinary law is unconstitutional.
But yes, everyone has an obligation to follow the law, which is what exactly this EO is about. Federal agencies don't get to pick and choose their own creative interpretations of the law, they have to follow the actual law. The president literally has a constitutional duty to take care that the laws are faithfully executed, and this EO is him doing that.
The EO contradicts the Constitution by declaring that agencies must refer to the President and the Attorney General for all interpretations of the law. This is a novel proposal not rooted in the historical functioning of the federal government.
The government agencies' powers come from the legislature and must follow U.S. Code, derived from the legislature's laws. Agencies hire their own counsel to make guidelines and regulations from U.S. Code.
As a technologist, you have the confidence to interpret the law and the Constitution from your version of reasoning from first principles. However, the Supreme Court and other courts repeatedly disagree with your interpretation, which willfully ignores the first article in favor of the second.
> The EO contradicts the Constitution by declaring that agencies must refer to the President and the Attorney General for all interpretations of the law.
It doesn't say that. It says that agencies must follow interpretations published by the President and the Attorney General and may not publish contradictory interpretations. And even if it did say that, how would that contradict the constitution - which says nothing about who is supposed to interpret the law and charges the President, and only the president, with ensuring the laws are faithfully executed?
It does not say "only the President" in article 2. Omission has never been a basis to grant powers to an arm of the government in constitutional law.
Again, as a technologist it is enticing to attempt to read the Constitution and interpret law from first principles. However, if you want to do that, you must also consider relevant inputs. The common law system of the U.S. means that `HEAD` of the current law is actually determined by commits made by the court system. Several cases in federal courts, including the Supreme Court, have established the hierarchy for law interpretation for federal agencies.
If your belief system leads you to disregard these decisions or to find they're not valid, that's fine, but you are instead arguing about some theoretical "lmm states of america" instead of the actual United States that we live in.
> The common law system of the U.S. means that `HEAD` of the current law is actually determined by commits made by the court system.
Not entirely. The supreme court can and does reverse itself. Ultimately the only way to find out what is legal in that realist sense today is to do it, see if you get sued, and see who wins the court case.
There's a big difference between something that goes against a past court precedent, something that goes against a statute, and something that goes against the constitution, and you're wilfully conflating them all so that you can call following the plain text of the constitution in a way that today's court system is likely to support (whether or not a court a few decades ago would have read things differently) "unconstitutional".
Ever tried getting the bureaucracy to acknowledge your rights in practice and do the things they're charged with doing when they've decided you're on the "wrong" side? Yes, I believe "my team" is winning; I haven't lost rights (yet), I've gained them. I worry about the pendulum swinging too far, I wish it hadn't come to this, but there's a whole class of people that have been shamelessly partisan for years, and even now are unrepentant and contemptuous of the people they're supposed to be serving, and that system has shown itself to be unwilling to be reformed. I had hoped that the first Trump presidency would be a wake-up call, that the Dems would finally remember they need to at least pretend to care about the working class, but instead we got more of the same. So here we are.
Wait, are you claiming that an administration currently being advised if not outright directed by the wealthiest man in the world is going to guarantee justice for the working class? Do you realize how that sounds?
Do you think massively cutting government grants that go to all kinds of social services in order to pay for 4.5T in tax cuts that mainly go to the wealthy, is going to help the working class?
Moreover, inter-term government workers are hired to be explicitly non-partisan. You want them to be non-partisan in order to guarantee continuity of government between administrations and to enforce the law as determined by the courts, non-politically. This is what actually guarantees your rights under the constitution. The minute you introduce political bias into this process is when you begin to deviate from the rule of law and actually abridge peoples’ rights.
And I’m sorry, but your “team” is going to have to face a reckoning if they continue to take power unconstitutionally. That abridges my rights as a citizen of the republic and forfeits their mandate to rule. We will all have the moral right and duty to use force if necessary against any politician who upholds this illiberal order. I hope you like violence, because that’s what you’re asking for.
> Wait, are you claiming that an administration currently being advised if not outright directed by the wealthiest man in the world is going to guarantee justice for the working class? Do you realize how that sounds?
Wealth is not the same as class.
> Do you think massively cutting government grants that go to all kinds of social services in order to pay for 4.5T in tax cuts that mainly go to the wealthy, is going to help the working class?
Yes. I'd've preferred raising the minimum wage or actual proper public-funded healthcare, but apparently there's no party you can vote for that will make a serious effort to do those. Cutting a bunch of PMC email jobs will at least reduce competition for housing, and while there are some well-intentioned individuals at the low levels of those agencies, overall they're often useless or even counterproductive.
> inter-term government workers are hired to be explicitly non-partisan. You want them to be non-partisan in order to guarantee continuity of government between administrations and to enforce the law as determined by the courts, non-politically. This is what actually guarantees your rights under the constitution. The minute you introduce political bias into this process is when you begin to deviate from the rule of law and actually abridge peoples’ rights.
Right, and this is where your "team" has been gradually going astray for decades, and what has lead us to this point.
> And I’m sorry, but your “team” is going to have to face a reckoning if they continue to take power unconstitutionally. That abridges my rights as a citizen of the republic and forfeits their mandate to rule. We will all have the moral right and duty to use force if necessary against any politician who upholds this illiberal order. I hope you like violence, because that’s what you’re asking for.
Lol. Your "team" is all about non-partisanship and rule of law as long as things are going your way, and then the moment the people elect someone who actually tries to implement the policies he stood on, it's time to declare him illegitimate and threaten violence. I fully believe you have the temerity, but you don't have the balls.
See, what’s nice about the rule of law is that if a bureaucrat actually infringes on your rights then you can sue the government to correct it. Under this new arrangement, that’s no longer possible because the executive branch has declared itself solely responsible for interpreting the law and constitution — not Congress and not the Supreme Court. So if you were worried about your rights being infringed by bureaucrats before, then you’re fucked.
And no, I’m sorry, but grossly violating the constitutional foundation of this country going back to 1880 is not a matter of just “implementing policies”. We can do all that through acts of Congress already. Don’t like it? Then don’t vote for a party that’s made it their mission to obstruct all legislative progress.
What you’re trying justify here is the elimination of the balance of powers itself—the very thing that keeps this country free. If your family has multiple generations in this country then you are disgracing their legacy as Americans. One of us is an actual patriot willing to take a risk and defend both of us against tyranny (and you should be grateful that there are millions more with that intention). The other just traded away his own liberty to a wannabe tyrant, like a coward. So step out of the way.
> See, what’s nice about the rule of law is that if a bureaucrat actually infringes on your rights then you can sue the government to correct it. Under this new arrangement, that’s no longer possible because the executive branch has declared itself solely responsible for interpreting the law and constitution — not Congress and not the Supreme Court. So if you were worried about your rights being infringed by bureaucrats before, then you’re fucked.
No, this changes nothing about the relationship between the branches. The judicial and legislative branches still have exactly the same roles and responsibilities they've always had. Individuals can still sue and Congress can still impeach. There was never supposed to be a secret fourth branch of bureaucrats accountable to no-one; bureaucrats in the executive were always supposed to be accountable within the executive, topping out at the President. And now they are.
> If your family has multiple generations in this country then you are disgracing their legacy as Americans.
Right back at you. How many generations of your ancestors do you think would say that random staffers in NOAA or MBDA or BLS or BoIE or MSHA should be deciding they know better than the President and the Attorney General and making up their own interpretations of the law to follow instead?
> One of us is an actual patriot willing to take a risk and defend both of us against tyranny (and you should be grateful that there are millions more like me).
>No, this changes nothing about the relationship between the branches. The judicial and legislative branches still have exactly the same roles and responsibilities they've always had.
That's blatantly false. You need to educate yourself on how our constitutional order actually works and how this EO attempts to claim illegitimate power.
>deciding they know better than the President and the Attorney General and making up their own interpretations of the law to follow instead?
Also false. The courts interpret the law and dictate what is legal to the bureaucrats. Under that executive order, the president -- rather than the courts -- interprets the law, which clearly violates separation of powers. You have thrice ignored this most basic fact.
If you're being truthful, then you are grossly misinformed. If you are not, then you're opposed to a free America. Either way this needs to be explained to anyone else reading this thread.
>Real internet tough guy huh.
Yep, it's all a big joke until you find yourself sitting in federal prison because you said something the president didn't like. That's where ignoring the courts will take us.
Your own link doesn't back up your claims. There is no sound constitutional or even legal basis for the concept of an independent regulatory agency, and to the extent that they exist they do exactly the thing you claim to be concerned about - combining legislative and executive power in the same entity, with all the accountability problems that implies. (The likes of the SEC even ran their own courts and judges as well, although the supreme court has thankfully put a stop to most of that now). Making it clear that executive agencies are part of the executive and accountable to the executive is a positive step.
The judicial branch doesn't interpret the law prospectively, it rules on cases and controversies. This EO doesn't affect court rulings, it's about interpretation as done by (from your own link) "agency lawyers, inspectors general, and independent counsel". It puts those people in the executive hierarchy and makes them accountable to someone.
>It puts those people in the executive hierarchy and makes them accountable to someone.
Again, that executive hierarchy has always been accountable to the courts.
Think about the difference between consulting independent agency lawyers vs the attorney general before taking action. What does that look like in practice? The attorney general and/or office of the president can now unilaterally decide that something grossly unconstitutional (e.g., eliminating birthright citizenship) is actually "legal" and instruct all federal employees to enact it on that basis. We then have to wait for courts to intervene, possibly for it to reach the supreme court, which could take a long time. In that time, the entire apparatus of the federal government would be engaged in gross violations of its citizens rights. Whereas before, the interpretation of the law would have been distributed across all the agencies, making it much harder to turn them toward nefarious ends.
Now let's go one step farther. Trump has already appointed cronies loyal to him to the federal agencies, so they won't go against him under any circumstance. As more of the federal workforce is replaced with loyal cronies (and that's indeed part of Project 2025), fewer and fewer barriers will stand in the way of complete dictatorship. Attacking the power of independent agencies is the first concrete step to making that happen.
> The attorney general and/or office of the president can now unilaterally decide that something grossly unconstitutional (e.g., eliminating birthright citizenship) is actually "legal" and instruct all federal employees to enact it on that basis. We then have to wait for courts to intervene, possibly for it to reach the supreme court, which could take a long time.
If the president ordered something actually grossly unconstitutional (and reversing Wong Kim Ark, a decision that the Supreme Court itself was split on, is hardly a good example of that), it would be the senate's duty to impeach.
The legal system is indeed overly slow to come down on federal agencies that do the wrong thing. If your side is onboard with improving that, that's all to the good.
> Whereas before, the interpretation of the law would have been distributed across all the agencies, making it much harder to turn them toward nefarious ends.
Unaccountability cuts both ways. Yes, if each agency is doing its own interpretation of the law, that makes it harder for elected officials to control what those agencies do. I don't see that as a good thing.
>Yes, if each agency is doing its own interpretation of the law, that makes it harder for elected officials to control what those agencies do. I don't see that as a good thing.
Do you trust Congress to write clear and unequivocal laws? If so, there should be no issue in interpreting them. When there have been issues, the courts come in. This has always been a perfectly reasonable way to run the federal government. Even if you think they could be better aligned with the popular will, risking an all-out dictatorship is not the way to accomplish that.
I don't think that's entirely true. We used to have much more social mobility back when it was legal to e.g. build your own house. These kind of government jobs didn't always require a degree (and getting a degree didn't always require generational wealth). And there was a dramatic increase in class polarisation on social issues post-Occupy Wall Street.
Individuals with appointment power attach appointees to their ticket like vice presidents. You get the option to write in anyone, but the tickets are defaults.
How does that solve the “unelected bureaucrat” problem? You still need bureaucrats to run a civil service, the appointed positions in U.S. institutions are mostly just figureheads, they’re not handling the day-to-day work of keeping a bureaucracy functioning.
Unless you’re suggesting that every bureaucrat role should be an appointment, and part of X years elections, is having people with appointment powers turning up with a list of 300,000-3,000,000 people to fill every bureaucratic role, and somehow the general public are going to scrutinise that in some meaningful manner.
All of that is of course ignoring the problem that comes with throwing away all of your bureaucracies institutional knowledge every X number of years. Do you really want the issuance of driving licences, fishing licenses, gun licenses, international visas, customs enforcement, immigration enforcement, to all grind to a holt every 3-5 years while the new folks figure out how stuff works? You would basically end up with a bureaucracy that fundamentally couldn’t achieve anything, and silly things like the rule-of-law would simply cease to exist in the U.S.
Why would anyone want to trade with, invest in, or ally with, a country that effectively lobotomises its government every few years, and has zero continuity of governance at even the most basic day-to-day items of modern life?
I read that as an all-inclusive "we" and not so narrow as "bureaucrats". The examples given are not exhaustive, if you have an imsgination.
There are many ways to fight for what you believe in. Look up mutual aid, participatory democracy, and the histories of women's suffrage and the fight in the USA for equal rights for Black, Indigenous, and other People of Color (that fight is nowhere near over).
Start with loving yourself, extent that to others, and if you feel like you're teetering, lean on others and find your balance again.
If I'm the guy guarding the door (and I have been), I damn well make my own decisions to the best of my ability, to where I would be willing to explain the what and why of my actions.
Which unelected bureaucrats do you consider to have the power and leeway to make policy according to their personal goals, such that making them follow the President rather than the courts' interpretation of the law is the better option?
… oh boy, if you think that mid level bureaucrat might be a neo-nazi I might have some bad news for you about the highest level bureaucrats currently running your country..
You’re right. But if the guy paid to guard the door is told to start letting gangsters in by management, whistleblowing and civil disobedience become championed by the public rather than condemned, that’s “the people’s” check and balance to power. I don’t think we should legally protect the guard’s right to disobey orders, but we MUST protect the guard’s right to protest publicly.
Ask yourself: what's the difference between the SEC saying, "We declare that Facebook broke a securities law and shall now be fined $1M" and Trump saying, "I decree that the SEC declare that Facebook broke a securities law and shall now be fined $1M"? Either of those could be true or false. Either could be politically motivated. Either could hold up in court or be struck down. So what's the difference?
One[0] answer is, the former was vetted by someone knowledgeable and (at least allegedly) non-partisan who had the power to stop it if it was wrong. That's it. If the president really wants to fine Facebook he can - he can replace the SEC Director with the "My Pillow" guy if he wants, who can replace SEC employees with randomly chosen members MAGA types until the desired fine is eventually issued - but at least going through the bureaucracy confers the possibility of impartial and informed oversight. Vesting the power with the president directly doesn't do that; presidents are biased and partisan by design.
0: Another answer is the SEC has been granted the power to do that by Congress and the president has not; but I get that people on the "unitary executive" train disregard this, and
A majority of Americans voted for Trump. There was a pollster who was on CNN a day or two ago who looked into people who voted for Clinton and Biden in 2016 and 2020, but then for Trump in 2024. These people were (of course generally speaking) happy with Trump's performace so far this term. There frustration with the Democrats was what they perceived as a lack of action, and they see Trump as "moving fast".
It's clear the American people (again, majority speaking - I mean, I certainly care) don't care about what is going on with the federal government right now. The only thing that will make them care is if the economy tanks or if inflation spirals out of control.
Congress has all the enforcement power, they can impeach the president whenever they want. Will they? I don't know, he's already gone so far in constitutional overreach that he's making Nixon blush.
Judiciary has more power than you'd think too. It's just that they try to act in good faith and generally do not want to throw people into civil contempt that often. The SCOTUS can even re-re-interpret the presidential immunity that Trump has abused to a pulp if they are angry enough. That was their call after all.
Will they do this? Highly unlikely, at least for Trump. I wouldn't be surprised if Musk flies too close to the sun, however.
> Congress has all the enforcement power, they can impeach the president whenever they want.
<Sad clown laughing noises>
Regarding the power of the judiciary in this, Trump's team is arguing right now before the Supreme Court that the judiciary has no power to constrain the President's power when he's acting solely within the Executive branch (which is basically all the time...) Oh, and as part of that filing he reminded the Supreme Court that they just granted him full immunity from prosecution.
For the cherry on the cake, the official Whitehouse X account tweeted out "GOD SAVE THE KING" with a picture of Trump with a crown on his head (I thought this was fake when I first saw it).
Okay, that's not even the craziest argument the judiciary has gotten. They'll just smash it down like everything else. If he ignores that, the court can escalate. Which is unprecedented for such office, but well in their powers. They can easily reinterpret presidential immunity as well in light of this entire month so that isn't really his protection.
Live it? There are plenty of people who live under dictatorships. I wasn't planning on being one of them, but perhaps this is what it was like in the Roman Republic at the transition to dictatorship.
>There are plenty of people who live under dictatorships.
Interesting decision. Unfortunately I am a minority and I don't like my survival nor QoL odds. Not even in California. so I am slowly looking into figuring out what EU country would mesh best with me should the worst happen. I don't think Canada will be far enough and I don't think their immigration sentiments will calm down in the next few years.
Heck, maybe I learn enough Japanese in the next few years and put up with more discrimination in Japan if I'm let in. Fits better with my career overall if I can get hired there.
What gives you any confidence that the SC will not like that argument? The Presidential immunity decision was already crazy cookoo land, they've already shown they're lackeys of Trump first and judges only second.
I explained it above, not quite sure how I can add more context. I can add that the court stacking isn't too unanimous and that it just takes 2 judges being pissed off to shift the entire dynamic. Compared to something like 19 GOP senators.
But yes, we're in unprecedented times and maybe SCOTUS will lock step over it. It's sad that I can't say with confidence that judges will respect the first article of the constitution.
>The Presidential immunity decision was already crazy cookoo land
It has a semblance of sense in a good faith governmental system. You don't want a president punished for their hard decisions in office.
Now with context: it's stupid because so many of his actions happened before he was president. At the very best, he maybe would have been excused for the Jan 6th riots. Trump should indeed be in jail, even before dissecting this month of of a circus.
> It has a semblance of sense in a good faith governmental system. You don't want a president punished for their hard decisions in office.
I completely disagree, this is a very ahistorical take. The reality is that not a single US president has ever faced a single legal consequence for a decision they took while in office, for over two hundred years.
But, the possibility has always existed, as a check on the powers of the president. Parts of the decision making process for any president have always been "is there a chance this might put me in jail later?". The Supreme Court decided that's done. They have explicitly acquiesced that the president may order Seal Team 6 to assassinate the opposition leader, and the courts would have no right to condemn them for that (if the president pulled out a gun and shot the opposition leader themselves, there might be a trial, since it could be argued this wasn't an official act as presidnet, it was a personal act of the person holding the office; but that would still have to be settled in court before any kind of evidence or injunction against the president would be allowed on the shooting charge).
Judiciary is easy. They don't want to take drastic actions unless absolutely pushed. The entire idea is to be meticulous and try to avoid the political climate when making judgement. They are taking action but they havent taken their gloves off yet.
Congressional's reasons: your guess is as good as mine. Their majorities aren't that wide. moving 3 senators can affect policy, moving half the senators can get an impeachment trial. We'll see how things proceed there.
> If the Supreme Court and Congress has no enforcement power, though, what recourse is there?
While maybe not practical for the president, but at least for various cabinet Secretaries or Directors: if they do not follow court-issued orders could be found in contempt and jailed until the corrective orders are implemented?
Trump's new doctrine is that all employees of the executive branch, such as federal police, must take his interpretation of the law as correct. So if a court ordered that the Secretary of State be jailed, Trump can issue a memo saying "the Executive Branch interprets this legal decision as meaning that the Secretary of State should not be jailed", then any federal police officer or agency head has to comply with the official interpretation of the president or be fired.
We should not have have top down dictates on what cases get prosecuted, that is insane. The President can give areas of focus, but average government employees are not military personnel, they should not be given 'marching orders'. Special envoys, etc, sure, but telling individual prosecutors 'drop charges against XYZ' isn't how our system should work. 'I would appreciate it if...' yes, but not 'Bob's our guy, drop the charges against him'.
Ostensibly, this EO is meant to remove power from bureaucratically controlled agencies in the government. The right have been complaining that real power has been usurped from the institutions mentioned in the constitution, and centered in a professional managerial class, that works below the surface, and has no culpability or exposure to voters.
That's all massively up for debate obviously, but this EO seems to be aimed square at that "problem".
Those agencies were created by law and given a command by law to fulfill a role in the executive branch. The executive branch doesn't get to decide how to organize itself since that would make a mess when the next guy comes up, so laws are there to make sure the structure is kept in a _continuity of the state_, such that just because the head changes, not everything needs to change. You could argue all you want about that, but stability is a desire feature of the state. It not only helps citizens to be able to have long term planning, but also saves the resources by not needing to figure out how things work constantly.
Some amount of stability is desirable, but not an infinite amount. A certain amount of creative destruction is necessary to avoid regulatory/ideological/bureaucratic/oligarchic capture. A completely stable system will fall to the iron law of bureaucracy.
>A certain amount of creative destruction is necessary...
This sounds truthy and even casts instability as somehow heroic, but it's an oversimplification and hides similar fallacies. It also implies that instability for the sake of instability is default-positive.
The best way to avoid capture is via law / regulation. There should be term limits, campaign finance reform, more regulation against lobbyists and the revolving door, etc. We can't have Citizens United then wonder how capture happened. And, no amount of instability will address that.
In fact, instability in this environment can serve as cover for increased capture, as there is no bulwark against reassignment of winners. This is likely what we're seeing with Musk right now.
Stability here doesn't mean nothing changes. It means things change in an orderly, reasoned manner to include thoughtfully preventing capture.
> The best way to avoid capture is via law / regulation. There should be term limits, campaign finance reform, more regulation against lobbyists and the revolving door, etc. We can't have Citizens United then wonder how capture happened. And, no amount of instability will address that.
On the contrary. We tried to reform and improve the system through the normal channels for decades. We failed. The system is evidently already captured and something a little more radical is warranted.
>On the contrary. We tried to reform and improve the system through the normal channels for decades
Did we though? I don't remember the last time campaign finance reform was on the national ballot or lobbying regulation or term limits. People aren't even talking about it.
The problem is that the majority of the voting public is easily distracted and not clamoring for these things that can bring about constructive change.
But, that distraction is not random. The people who push for and benefit most from this distraction (and subsequent failure to change) happen to also do things like donate $250M+ to help buy a president, then convince followers that something "a little more radical" is needed to help seal the deal.
Oh, and they happen to also have billions in government contracts.
But, they are eliminating capture? If ever there was a fox guarding the henhouse. "The Onion" couldn't make this up.
Without agreeing or disagreeing with you, that's irrelevant. The law is the law. If it specifies that a particular agency must exist, and how it should function, then that's what the executive is required to implement.
In theory, at least. If Trump and his minions decide to do something else, there isn't really anyone with the power to stop him, absent impeachment.
I was replying to someone who said "You could argue all you want about that, but stability is a desire feature of the state. It not only helps citizens to be able to have long term planning, but also saves the resources by not needing to figure out how things work constantly."
Legal questions aside, I think that's an overly simplistic take; a certain amount of stability is desirable, but it's possible to be too stable as well as too unstable.
The stability here comes from not having to wonder what the next guy is going to do wrt taxes, etc. because those need to pass a process that would be public in congress. Stability doesn't mean staleness. It means that things don't change willy nilly.
Right, and that level of process allows a certain amount of capture and exploitation. E.g. companies will game the tax code in the confidence that they'll get plenty of warning before any loopholes are closed. It's hard to imagine the 2017 change to how corporate repatriated income is taxed happening under any other president, and that rule change not only collected a bunch of revenue from companies that had been engaging in tax avoidance schemes, but also burned them enough to deter that kind of gamesmanship, at least for a couple of years.
Right, on its face this is simply more of the "drain the swamp" rhetoric from his first term. The way the EO is written sounds "fine" to my high school civics ears: there's three branches of government, one is the executive branch, and ostensibly the president is the head of that branch.
The motivation of the EO was clearly articulated all throughout the campaign that, as you say, even within the executive branch there's a large swath of career bureaucrats who kind of do their own thing. And so if the people vote for something else, there's kind of a limit to what any new administration can actually accomplish. Arguably, this is by design and provides valuable stability, but I think you have to at least acknowledge that it's there, and people aren't crazy for noticing it and trying to change that if the career bureaucrats aren't actually on their side.
I thought Trump was laughably ineffective his first time around. I chalked it up to all the Russia Manchurian Candidate stuff and Trump's constant flailing and hiring and firing of staff. But I'm wondering now how much of it really was this large bureaucracy in the executive branch not really moving in step with the new administration, which is interesting to me. I think there was a JD Vance interview (maybe with Ross Douthat in NYTimes?) where he says people throw around "constitutional crisis" a lot, but that he felt we were already in one because Trump was asking the generals stuff about troops in Afghanistan and they weren't answering.
I know people here are primed to read the worst into everything, and there's some seriously apocalyptic predictions in this discussion. But my first impression is that the EO reads fairly mundanely and is meant to sound like it's addressing the "hostile bureaucracy" situation that folks on the right have been talking about for years. I guess we'll see in a couple years, how it all plays out. I wish people predicted stuff more and then looked back to calibrate themselves based on the results.
> The way the EO is written sounds "fine" to my high school civics ears: there's three branches of government, one is the executive branch, and ostensibly the president is the head of that branch.
Then maybe you need to get an understanding of human organizations in general and the US government in particular that goes beyond your high school civics days.
The president has no power or authority to interpret the law, not beyond the implicit power of every citizen to interpret the law for themsleves. The president has the power and authority to execute the law as written, mostly by appointing other people to do so in specific areas. The power to choose those specific people is already huge, directing their every move is neither needed nor desirable.
There are literally tens of thousands of laws, if not hundreds of thousands (when including regulations and binding court precedents) that need to be followed by the federal government. The president simply can't be an authority on all of them, it's not even remotely close to humanly possible.
Not to mention, very tight, military-style control is a a horrible feature. The President may get to command the army, but they are not commander-in-chief of the executive branch, civilian agencies don't and mustn't work that way. Government employees must uphold the law, and fulfill the role of their position. If they're not following the law, they should be fired, and a court may get involved to reach this conclusion. The president doesn't get to dictate what the law is and fire government employees who are upholding the law instead of the president's interpretation of the law.
My prediction was that Trump would abandon the Ukrainians and suck up to Putin, and as of today that's right on target. This calibration exercise is not reassuring at all.
You could ask "Is Putin more like Hitler or is Putin more like Ho Chi Minh?"
Putin does not try to hide the fact that he wants to restore the Russian empire and reconquer the former soviet bloc - a group of peoples who want nothing to do with him.
Ho Chi Minh wanted an independent Vietnam, got it, and never really expanded from there.
We either help the Ukranians stop Putin now or we fight a much bigger fight later. Hitler could have easily been stopped at the Rhineland, or at Czechoslovakia. But instead we got "Peace for our time".
>setting up the president as the sole power center is an inherently unstable system.
But that is what the Constitution specifies (Article II Section 1):
> The executive Power shall be vested in a President of the United States of America.
I find it funny people either don't know this or are intentionally ignoring it. The entire power is vested in one person, who can delegate the enforcement of it to lower officers.
> Nothing prevents the next president from having a radically different opinion. There is a very good reason why the founding fathers built in an elaborate system of checks and balances.
Right, thats why they included a legislative branch and a judicial branch. The problem is the legislative branch delegated much of what it does to the executive, and the judicial said it was okay.
All three branches of the government are beholden to the Constitution as a whole, and to each other based on the Constitutional roles and their expressions of their roles.
All government actors individually are also responsible to the Constitution and its expression by all three branches first, before any loyalty to anyone else. In the same branch or not.
Even before the current top office holders of the executive branch, congressional majorities, or Supreme Court justices.
Saying that a President’s personal interpretation of Congress’ laws or the courts precedence, completely overrides any individual executive employees good faith understanding and responsibility to the Constitution, laws, and judicial rulings is madness.
There will be disagreements within a branch that will need to be worked out. The president certainly has more power and deserves special respect. But his helpers must stand firm with the constitution first.
Settling Constitutional level disagreements within a branch is a desirable process. The president, and all government actors, need pushback when they start running into the weeds, and vetting when their take seems Constitutionally risky or outright invalid. Taking into full account all valid standing orders, laws and rulings.
The Presidents most important advisors are subject to Senate approval precisely because they are supposed to be loyal to the Constitution and laws first.
If the president says he believes arresting disagreeable members of the Supreme Court is Constitutionally supported because yadda, yadda, yadda, you don’t do it.
If the President directs the Vice President not to certify an election, because he interprets that role as active and worthy of pauses and delays to settle issues the President deems Constitutionslly important during an election…
But you the Vice President, after careful thought and consultation believe your role is ceremonial, you fulfill the ceremony.
> Saying that a President’s personal interpretation of Congress’ laws or the courts precedence, completely overrides any individual executive employees good faith understanding and responsibility to the Constitution, laws, and judicial rulings is madness.
But it's not madness based on the intended structure of government? The EO isn't saying "ignore Constitutional violations". It wouldn't be valid if it did.
If Congress passes a law that say "tobacco is banned", and the US President says "I will direct my agencies to follow this new law" and you have agencies saying "I'm not a lawyer, but I feel like this law is unconstitutional so my agency is not going to follow it!"?
How would the government even function if you have 100 agencies with 50 of them having the power to come up with their own interpretation of the law? How is that even workable as a branch of government?
The executive branch of government is more accurately viewed as a monolithic organization which derives 100% of it's authority by delegation from the US President. This is why the president personally selects the heads of each agency (with the Senate approving). Authority moves down from the president all the way to the most junior government employee - they are acting on behalf of the president.
> There will be disagreements within a branch that will need to be worked out.
What does "worked out" mean?
For legal issues the President will consult the US attorney general. If it's complex, the DOJ might create a white paper determining the constitutionality of a law or not.
To have an agency head disagree with that determination seems like a rogue agency. Why would that agency head know better than the attorney general?
> If Congress passes a law that say "tobacco is banned", and the US President says "I will direct my agencies to follow this new law" and you have agencies saying "I'm not a lawyer, but I feel like this law is unconstitutional so my agency is not going to follow it!"?
Now if Congress passes a law that say "tobacco is banned", the president can say "This law means that tobacco isn't banned and has to be sold in schools, and I will direct my agencies to follow this new law". Before, the president had the option to refuse to enforce the laws as written (and risk getting thrown out on his ass) and now the president has the option to rewrite laws according to his whim and enforce that instead. He also has immunity too so he can't even get into trouble for just doing whatever he wants.
Every citizen in a democracy has a duty to understand, respect, and uphold the law and the constitution. Congress defines what the law is, the judiciary adjudicates disputes on how the law should be interpreted, and the president can only execute that law. But all federal employees have their own duty to understand and uphold the law. The president has no special power to interpret the law: the law is what it is, and perhaps what the courts clarify.
An agency head that is disobeying the law can be fired by the president. An agency head who is not disobeying the law can't be fired (assuming there is no other cause, such as poor management, of course). If there is disagreement on whether the agency head was upholding the law or not, that's not up to the president, it's up to the courts to decide.
Having the president be the ultimate authority on the interpretation of every law and regulation, even within the executive branch, is not only unconstitutional, but also unworkable. A single man can't physically review every single aspect of the American government, they have neither the time nor the mental capacity to be the ultimate authority on every single aspect of the federal government.
So not only is it normal that the president defers to agency heads on the interpretation of the applicable law that they are experts in, it is the only way the system can function. The president has plenty of control over the agency by naming the head, they don't need and can't have more control than that.
> So not only is it normal that the president defers to agency heads on the interpretation of the applicable law that they are experts in, it is the only way the system can function.
[Emphasis mine.]
Yes, well said. This is the ultimate bottom line argument!
The Constitution might as well not exist if individual actors with expertise the President does not have, are not expected to put their specialized understanding of previous orders, laws and precedent (and reality!!!) ahead of who they report to.
> The EO isn't saying "ignore Constitutional violations".
What if the President says "I interpret [irrefutably unconstitutional action x] to not be in violation of the constitution"? Then anyone in the executive branch has to behave as though that action were constitutional, no matter what it is, don't they?
> But it's not madness based on the intended structure of government? The EO isn't saying "ignore Constitutional violations". It wouldn't be valid if it did.
If all executive actors must bend for the president’s orders, regardless of previous orders, laws and precedent, then nobody’s views in the executive branch matter, any time the President chooses.
They are now effectively sworn to a particular human, not the Constitution.
The President is now the “Constitution” for the executive branch.
(You might counter with the argument that they are sworn to the President’s Office first, but who actually gets to decide what that means? The human in that role.)
It is madness because a president whose will is unassailable within their own branch is also unassailable across all three branches.
The President has all the levers of practical coercive power.
Neither Congress can put any law into effect, or the Judiciary put any ruling into effect, without the cooperation of the executive branch. Without that, their existence is decorative.
> The executive branch of government is more accurately viewed as a monolithic organization which derives 100% of it's authority by delegation from the US President
That is inaccurate. Almost all federal departments and agencies derive their authority from acts of Congress. The President has very limited authority to create and empower agencies.
The strongest argument against the CFPB is that is was not created by an act of Congress. Trump could not create a DOGE so he renamed the USDS. He cannot shut down USAID, but he can mismanage it.
The president is required by law to execute the laws passed by Congress even if he strongly disagrees. The mass firings and funding holds have the legal fig leaf that he is managing them to the best of his ability.
> Almost all federal departments and agencies derive their authority from acts of Congress.
Partially, as we need to be precise in our language.
Congress can design an agency, determine what powers it has, determine agency procedures and fund agencies.
It's up to the President to execute the law within those boundaries, including selecting the head of that agency (with Senate approval), and determining how the agency executes the law which can be incredibly broad if Congress wasn't proscriptive.
Thus the authority to execute the laws is delegated to the President by the Constitution who then delegates that power to the head of the agency which acts on the Presidents behalf.
More broadly, the Supreme Court has made clear that the Constitution imposes important limits on Congress’s ability to influence or control the actions of officers once they are appointed. Likewise, it is widely believed that the President must retain a certain amount of independent discretion in selecting officers that Congress may not impede. These principles ensure that the President may fulfill his constitutional duty under Article II to take [c]are that the laws are faithfully executed.9
> More broadly, the Supreme Court has made clear that the Constitution imposes important limits on Congress’s [and the President’s] ability to influence or control the actions of officers once they are appointed.
Improved on that, just a tad, for this discussions context. Not disagreeing.
Without that balance Congress couldn’t delegate anything with any expectation of its will being carried out.
And the President couldn’t ensure the agency acted competently and with respect to the President’s good faith understanding of the agency’s guiding laws.
With the courts ready to step in to settle any differences.
Agencies can only work reliably with the differing participations and limitations of all three roles.
> More broadly, the Supreme Court has made clear that the Constitution imposes important limits on Congress’s ability to influence or control the actions of officers once they are appointed.
No they did the opposite when they overruled Chevron. They said Congress cannot delegate that amount of its plenary power to the executive.
This of course lays the whole thing bare. When it comes to regulating markets or companies, or minority rights, conservatives think the president has no power. But when it comes to immigration or Christian social issues, the president is all powerful. This translates into laughable double standards like "the Biden admin even sending a single email to Twitter is pressure and censorship, but Trump suing media organization after media organization for defamation to the tune of billions of dollars is not pressure and not censorship". None of this is principled; it's entirely us vs them.
Overturning Chevron only impacted the purview of the courts. It changed nothing with regards to Congress delegating power to the executive - Congress can continue to do so.
All it does is make ambiguity in the law the responsibility of the courts to decide, not the executive.
But Congress can still pass a vague law that says "a new agency X will regulate this product in order to protect public safety". The executive can then interpret what "protect public safety" means, but if challenges, the courts won't defer to the agency for the interpretation any more.
Well, maybe more embarrassingly I read your post backwards. But Thomas' concurrence is basically "only Congress can legislate".
I will say it's super unclear how our government works now. SCOTUS is like "sure, go ahead and delegate" but what they mean is "only as much as we let you... looking at you Democratic administrations". MAGA has--through half statements and gaslighting, made it clear that the only principle is that they have power and their opposition doesn't. If that means the Executive is powerful when it's Republican and weak when it's Democratic, well he who saves his country breaks no law.
> The executive branch of government is more accurately viewed as a monolithic organization which derives 100% of it's authority by delegation from the US President.
This is a very extreme version of unitary executive theory, which is highly controversial even in its weaker forms.
Moreover, even were one to accept that extreme version of unitary executive theory, it would be odd to also assume an act of Congress purporting to create an subordinate executive officer who was appointed by the President but removable for only specified cause and granting authority specifically to that officer was then valid but had the effect of actually granting the specified authority directly to the President; a more natural conclusion would be that, as the express intent of such a law was unconstitutional, it was void and had no effect.
Say something like "hey, no, that law is unconstititional!".
What is the purpose of having cabinet secretaries swear an oath to defend the Constitution if the President has the sole authority to decide what this means?
When Congress passes a law saying, "create an agency that sets rules about air pollution, whose director is appointed by the president", the constitution demands that the executive branch do exactly that. Interpreting that to mean "The president personally sets rules about air pollution, using an agency if he likes" is unconstitutional and I think the vast majority of both parties agreed on this for most of the last hundred years.
> unless the dems get 2/3 the senate that will never happen.
If the Dems ever got more than 2/3 of the Senate, then precisely the number of Dems necessary to vote against their party would do so. The party would loudly bemoan the result, and then point out that the defectors had to be DINOs so that they could win their district.
In other words, that will never happen, and was never gonna happen; even if Dems could win a 70% majority without war breaking out over perceived election theft.
Personally, I can't have any faith in a party which armed and supported genocide to defend either democracy or checks and balances. They 'accidentally' dropped the ball many times on this exact issue [0] over the last four years, when heading all this off at the pass would have been far simpler.
No, that's not what it says. The part you quoted says that executive power is vested in the president. Legislative and judicial power are vested in other bodies that are not accountable to the president.
The constitution also explicitly sets up formal departments with specific purviews, with heads that need to be approved by congress. It also outlines that the president has the right to get the opinion of said principal offices about their duties (while seemingly failing to state any right to direct said opinions) This implies that the president’s executive authority over the departments is far from absolute, since if it was, why would you need to explicitly bestow a right to merely seek opinions?
If anything, the constitution implies that department heads SHOULD have independent opinions related to the purview of their departments.
“The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
"The Congress shall have Power ... [long list of various government functions and agencies] ...
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof" - Article 1, §8, United States Constitution.
In practice, government agencies are primarily required to adhere to U.S. Code (list of laws compiled from bills passed in Congress). Then they consider executive orders.
Your mental model of the executive branch is a commonly held one. However, you should adjust your model to incorporate this information which may have been omitted from your initial training data set.
A CEO sending out that memo would be similarly ill-advised. For one, that's what counsel is for. For another, workers are intentionally encouraged to interpret laws and report discrepancies via government whistleblower programs.
Where do people think the agency derives 100% of it's power from? The President!
You clearly do not understand how the American system of governance is supposed to work. Every department has enabling legislation. Below is a link to a law passed by Congress and signed by the President establishing the DOJ.
Congress can design an agency, set it's processes and procedures, and give it money to run.
But the President is in charge of it within those bounds. The President can't decided DOJ doesn't need an Attorney General (Congress already decided that), but the President gets to pick the AG and the AG reports to the President.
I’m sad that you’re being downvoted. It’s clear that you’re correct. However, HN does tend to take extending the courtesy of assuming good faith to the breaking point, whether we like it or not.
It’s blindingly obvious that they are here merely to gum up discussion in endless loops that go nowhere under the guise of politesse and question marks, as if they’re just confused and asking clarifying questions.
The thing about assuming good faith, which I agree with in principle, is that you have to be willing to accept your own judgment of when someone is arguing in bad faith and disengage.
> setting up the president as the sole power center is an inherently unstable system.
Autocracies can be very stable... for a while depending on how much people are able to protest (or not). You could argue that N Korea has been "stable" (from the standpoint of the ruling family) for over 60 years.
> There is a very good reason why the founding fathers built in an elaborate system of checks and balances.
Sure that's what we were all taught in school. But it turns out that the whole system is heavily dependent on the executive branch "doing the right thing". But what good is it for the Judicial or Legislative branches to rule against the executive when the executive is in charge of enforcement? Even Nixon was eventually able to be shamed into doing the right thing, but if we have a president who can't be shamed into doing the right thing... well, I suspect we're about to find out, but my guess is that the checks and balances aren't going to be effective.
All of the checks and balances are kind of predicated on the idea that each arm of government who actually bother to protect their own powers, and use those powers to rein in misbehaviour of the other branches.
But both congress and the supreme courts seem to have decided that personal ideological principles are more important than the maintenance of the U.S. democratic foundations. The Supreme Court has basically ruled that the president is above the law, and congress has refused to use its powers of impeachment to prevent the president from running roughshod over congresses laws.
Nixon wasn’t shamed into doing anything, he was threatened with very credible impeachment, and decided that getting out fast on his own two feet, was better than being taken out slow by the ankles via impeachment. But the modern Republicans have demonstrated time and time again, that as long as they’re “winning”, they don’t give two hoots how much damage they do to US democracy.
> All of the checks and balances are kind of predicated on the idea that each arm of government who actually bother to protect their own powers, and use those powers to rein in misbehaviour of the other branches.
I mean, sure, that's the Schoolhouse Rock version. But I'm talking about something else: The executive branch is the branch that controls military, FBI, CIA, BATF, US Marshals - the law enforcement agencies with guns, tanks and planes. Congress and the Courts don't have any similar enforcers. In a showdown where the courts order the executive branch to do something the executive branch can just ignore the order and continue doing what they want. The fact that this hasn't generally happened much in our history is because the executive generally had some kind of respect for the constitution and the institutions that it instantiates. If you get an executive who doesn't give a damn about anything other than maintaining their own power there's really no way to get him/her to comply.
> Nixon wasn’t shamed into doing anything, he was threatened with very credible impeachment, and decided that getting out fast on his own two feet, was better than being taken out slow by the ankles via impeachment.
Ok, but wasn't that at least partly due to the shame that he would incur if he had been impeached? He was afraid of history's judgement - though it was a bit too late for that. In other words, on some level he didn't want the impeachment stain - at a certain level he cared (again, he should've cared earlier, but he thought he was going to get away with it). Now we have a guy who has been impeached twice and he knows he's got enough toadies in the senate so that he won't ever be convicted. Even if the House goes to the Dems in '28 he's not afraid of the threat of impeachment that would likely entail. Nor does he feel any shame over any potential impeachment.
> The executive branch is the branch that controls military, FBI, CIA, BATF, US Marshals - the law enforcement agencies with guns, tanks and planes. Congress and the Courts don't have any similar enforcers.
military and law enforcement also swear an oath to uphold the constitution of the united states and to defend the nation against threats, including domestic ones. I think it's reasonable that they would defy a president who went totally off the rails to the point where he became a threat and violated the constitution.
Sure, if you kill all dissenters , keep population terrified and into the dark, remove all sources of information with propaganda then things could stay like that for a while.
I come from autocracy and it's way more similar to the US than one might think.
It all starts with distrust of institutions, (silent) support of majority and power consolidation under executive branch. It's very hard to get out of it, and propaganda and terror just one part of it, and I'm not even sure the first.
Singapore is probably the world's only extant benevolent dictatorship, with two out of four prime ministers being father and son. It remains to be seen how stable it will be in the coming generations.
I took it to mean that agencies no longer have the final say in interpretations of law when it comes to exercising executive power. So for instance if ATF says a banana is a machine gun and the president says "yes", then barring an act of Congress clarifying, it is. I don't see how you go from there to the end of judicial review?
> What problem, other than judicial review, does it solve for the executive branch?
It’s fairly obvious on its face the concern of the EO is not judicial review but about agencies that nominally are past of the branch the President heads determining interpretations of law contrary to what the head of the executive desires.
And, it does genuinely seem weird to have an executive branch where the head of that branch doesn’t actually control things.
The negative reaction is entirely because of the current executive head, but no one would bat an eye if this were Barack Obama reigning in some executive agency interpreting, say, immigration law in opposition to DACA.
> Is the head of the executive an expert in all things? And capable of communicating those expert desires with perfect clarity?
It's not their job to be the expert, it's their job to be the decisionmaker. That's why you have a head. If two federal agencies want to interpret the law differently, it's more important to pick one interpretation and apply it consistently than to get it perfectly right.
> Why have courts if the executive head can sort out all legal nuance themselves?
Checks and balances are important but so is the ability to actually do things occasionally. Independence for the court system is good. Independence for every individual federal agency isn't.
Sure, but an executive basically just implements the laws, not decide what they are. Given the US system this is important, as it's quite possible for the President not to have a majority in the legislature.
So you are saying that we are meant to believe the problem is that people (who exactly?) were formulating and acting on their own interpretations of the law, independent of either the executive or judiciary branches of government? Hmm. If the problem is so immediate it requires an EO, there must be some salient examples you can point me to.
I would react the same way to anyone who had announced we would never need to vote again, who had previously pardoned felons convicted in an attempted coup, and who was now centralizing governmental oversight and power. There is no comparison to another president in the last 150 years or more.
> And, it does genuinely seem weird to have an executive branch where the head of that branch doesn’t actually control things.
It's not weird at all, and it's not true that the head of the executive doesn't have control over those agencies. The head of the executive names their leadership - that is a huge amount of control. And it is enough control - the government isn't some top-down system serving at the pleasure of the president. It is a system for implementing the rules set out by Congress and the courts (subject to the President's judicial review powers), that the president coordinates.
The very title of "president" was chosen by the founding fathers to evoke the largely bureaucratic role they had in mind. It's not supposed to be a position of prestige or control like a dictator or ruler, it's similar to the role of a committee president: someone who oversees the functioning of the committee, and steer the general agenda, but who doesn't otherwise get to decide for the committee.
> no one would bat an eye if this were Barack Obama reigning in some executive agency
Obviously a counterfactual we can never truly know but I'd remind you that the right were offended when Obama wore a tan suit and was using Dijon mustard. I'm pretty sure they'd "bat an eye" if he were attempting even 1% of the shenanigans that Trump is pulling.
> Why is this EO being issued? What problem, other than judicial review, does it solve for the executive branch?
It is saying that for all matters where a law is not explicit and prescriptive, the WH shall provide the interpretation for the agency to follow.
The WH is correct that (aside from judicial review, which is not at issue here) they have final authority over how to implement open-ended laws, and not the agencies that function under the WH.
What about the constitutional directive that the President shall ensure that the laws are faithfully executed? Congress has prescribed how agencies may issue regulations and interpretations through statutes shouldn’t these statutes control?
Article II Section 1. The executive Power shall be vested in a President of the United States of America
It doesn't say "some of the executive power", nor does Article I mention anything about being able to create new executive powers vested in other entities. So if the president is the only one who has been vested with the executive power, how can a functionary of the executive promulgate a regulation that disagrees with the president? Ultimately the House can impeach and the Senate convict, possibly disqualifying them from federal office.
Right, but what is “executive power”? It is the power to put laws into effect—to execute them. And Congress writes those laws. Article 2 Section 1 does not confer power beyond what the laws provide.
And “vested” does not mean exclusive. Many U.S. laws grant executive power, including the power to promulgate regulations, to persons in the executive branch other than the president. For example, the Communications Act of 1934 creates the FCC and gives the commission the power to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”[1]
There is no authority in the statute for the President to override these determinations made by the Commission.
The enumerated powers in article 2 along with the implied powers that are necessary to carry out the constitutional responsibilities of the president make up the executive power.
> Article 2 Section 1 does not confer power beyond what the laws provide.
It does not confer power beyond what is enumerated and implied within article 2 which vests those powers into a single president. Laws are subordinate to the constitution and have no way of limiting, modifying, or expanding it unless the amendment process is used.
> And “vested” does not mean exclusive.
Can there be two commander in chiefs?
> Many U.S. laws grant executive power, including the power to promulgate regulations, to persons in the executive branch other than the president.
How are they granting executive power? I see nothing in article 1 to suggest they have such a power. Congress was given explicit powers to create lower courts though, "To constitute Tribunals inferior to the Supreme Court". It seems odd that the framers would forget to mention that congress can also vest executive power into entities of their own creation.
> There is no authority in the statute for the President to override these determinations made by the Commission.
So according to you argument congress can create an enabling act wherein they vest all executive power into the newly created agency head and require the president to nominate a specific person by a specific date and the president would be obliged to execute that law?
It explains itself in Section 1; pretty much all the above the fold material is on exactly that topic. Trump & friends are taking the interpretation that the US presidential election is a vote on how the executive government is to be run.
As an extension of that, they're pulling power away from the unelected bureaucracy back towards the office of president - because a vote can't change the direction of the executive if parts of it are on autopilot independently of the president.
> What problem, other than judicial review, does it solve for the executive branch?
It doesn't change anything about judicial review. The thing they're targeting is parts of the executive acting independently of the president; which given the behaviour of the intelligence services is probably targeted at them but might be aimed at any of the bureaucrats.
Whether it is a good idea long term is a complex question though. This looks like an area where the separation of powers gets to murky territory. It is hard to have separation of powers given how much of it has been given to the president over the last century - the small-government strategy was a better approach than what the US has set up here.
> because a vote can't change the direction of the executive if parts of it are on autopilot independently of the president.
That's only mildly true, and the belief of micromanagers everywhere. Ultimately, you need to set an overall direction and then let people execute within that framework, or you're going to get something that's badly run and slow as molasses.
With a nuanced interpretation, this EO even might make some amount of sense (a bit more overview/stricter guidelines). But wherever you stand politically, you can't accuse the current administration to have a sense of nuance.
And, of course, if you want to assume the worst, it's fair to point out that the EO removes all independence without having to spell out any guidelines, which means a world without guidelines and on-a-whim decisions is well possible. That's not a good thing for a regulatory environment. Or a democracy.
And that's the biggest problem - because even if the current administration has only noble goals (and I really don't want to debate this either way, let's skip that comment stream), this XO is massively ripe for abuse for people with non-noble intentions.
I think this is a really good explanation of the underlying problem.
The example that is top of mind to me, because it hits pretty close to home, is stuff like the Environmental Protection Act or the Marine Mammal Protection Act. The laws direct designated agencies to come up with rules to accomplish whatever the act is meant to do, but it does not get into specifics, because lawmakers rightly recognized that they are neither environmental scientists, nor economists of the industries those acts regulate. So if an administration says "holding hands and singing Kumbaya in the commissary is sufficient to accomplish the goals of our mandating legislation", and neither the legislature nor the courts are unwilling to call the executive on it, that's the ball game.
> lawmakers rightly recognized that they are neither environmental scientists, nor economists of the industries those acts regulate
The problem that this EO may be trying to address is that environmental scientists and economists aren't any more above moral reproach as presidents or legislators. Therefore, the status quo was such that if some unelected career civil servant working at an agency decides to interpret stuff under their expertise in one way or another that may be wrong, there was little possibility of redress on the part of the people.
Vote for a different president? No matter; career civil servants can't be fired because the president isn't king! Vote for a different Congressperson? No matter; they aren't experts so they'll defer to the civil servants! And therein lies the "deep state".
The correct answer, in my opinion, is that lawmakers need to sit down with the domain experts and write specific legislation with that expert input. That way, policy remains accountable to the people, who are the ultimate legitimate source of power.
I disagree categorically with this. Yes, in principle, the court cases would be easier if the law was written with the complete regulations in place to begin with. However, facts on the ground change faster than the legislature is able to move at the best of times.
It has always been the case that you or I could sue to overturn a rule from the EPA or the BATF or the FDA. At which time, you assemble subject matter experts to buttress whatever claim you might have, and the regulatory bodies present their experts and then a judge and jury decides. It’s pretty far from perfect, and it has some of the same flaws as the legislative approach, but the important strength is that national defense spending policy is not held up on where the sustainability of dolphin bycatch for tuna lays: 15 or 16 dolphins killed per 100,000 tons of tuna harvested.
I think the underlying premise to requiring the legislature draft all regulations is “the legislature should not be making rules about things they don’t understand”. But 1) that sure as hell hasn’t slowed them down before, and 2) the fact that e.g. airplanes are very complicated is why we want regulations around their manufacture and operation in the first place. It’s confusing to me that the conclusion folks seem to draw here instead is “it’s too complex for the legislature to engage with in a timely fashion, so I guess we just have to accept all these plane crashes”.
Useful redress for a bureaucracy taking lawful actions within the guidelines specified is never "let's fire the civil servant". They're not out to enact their agenda, they're trying their level best to achieve the goals set.
(Same way firing L3s doesn't help with execs setting a bad direction)
If that work is nowhere close to the perceived will of the people (again, please, let's not debate "what's the actual will though"), it's a failure of executive and legislative to create clarity.
You're right, ultimately this is about legislative and/or executive having conversations with experts to set the right goals and guidelines.
But you'll need it to be a conversation, and you need to leave room for independent decisions within a larger framework. The EO does squash all discussion or feedback down to "president's always right, ask the president". This makes redress harder, not easier.
Centralized command and control looks appealing because it simplifies a lot of things, but it breaks down because it assumes a single person has all the answers.
And this particular EO makes it worse, because it also directs agencies to ignore judicial decisions unless the president says so. Maybe. The writing's very unclear: "No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General."
What's "positions advanced in litigation"? Does it include injunctions/restraining orders? If it does, there is no judicial redress at all. Which means accountability is reduced, not increased.
I don't disagree with you that there need to be limits to regulatory authority of a bureaucracy. But this EO is very much not it.
There was nothing stopping Congress from getting expert input from environmental scientists and economists up front, and then incorporate that input directly into legislation. They didn't have to delegate all of their power to the executive branch.
You're getting downvoted for basically saying 'you know how command economies don't work? That model also doesn't work as a national governmental system' by the people who claim to hate command economies.
Fundamentally, an EO says "we urgently need to course correct and do X", which only makes sense if you agree that X is not already being done.
So this EO is not just declaring "the Executive Branch will obey me", but also saying "the Executive Branch has been so disobedient that I need to take immediate action to quash that"
If you are saying that latter sentence, you should be able to justify it by pointing at the disobedience that caused this issue AND explain why the usual mechanism of "Congress passes a law to address the problem" is insufficient (AND congress is currently aligned with the President politically, so that's a fairly uphill battle to argue)
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As an example, no one should ever need to write an EO declaring "the sky is blue." If you're familiar with history, you might remember that smog used to turn the sky yellow. If someone wrote such an EO back then, you could reasonably conclude the actual purpose of the EO is to declare "it is now illegal to notice that the smog is so bad that it's changing the color of the sky."
>So this EO is not just declaring "the Executive Branch will obey me", but also saying "the Executive Branch has been so disobedient that I need to take immediate action to quash that"
I'm not really clear what that has to do with the IRS, FDA, FAA, etc.? You don't burn down the whole orchard just because there's one bad apple. You certainly don't burn down the neighboring citrus farm.
I'm also not sure why something from 5 years ago is in any way urgent, much less so urgent that he needs to bypass a favorable Congress.
“No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law“ would seem to rule out, say, accepting a SCOTUS ruling against the President, should he insist it was wrongly decided.
> Vice-President JD Vance has suggested judges do not have authority over the Trump administration's executive power, as the White House responds to a flurry of lawsuits that aim to stall its agenda. "Judges aren't allowed to control the executive's legitimate power," he wrote on X.
For those unfamiliar -- the quote is from Andrew Jackson, and his stance on the court's invalidation of the US state of Georgia's policies that led to the Trail of Tears.
Not a positive model to emulate.
AFAIK the only other time this has been done was during the US civil war.
If the court cannot have an opinion more valid than the issuer of the EO, then on what authority can they invalidate it? The issuer can always say: that isn't how the law is meant to be read.
First they marginalize, then they alienate, then they never have to take the extreme action that people like you would recognize as a problem.
> "Well, when the president does it, that means that it is not illegal.”
If the President orders the exec branch to ignore the courts on this argument, he hasn’t ordered the judges to do anything, but he is fucking with their power nonetheless.
Today? It’s no longer a given. Trump, Vance, and Musk have all indicated a willingness to ignore court orders. Whether they will go they far is yet to be seen.
It's not even hypothetical, they've already refused to follow court decisions. For example, when Trump seized funds already allocated by Congress, and ignored a court-order declaring it was unlawful.
They are trying to supercede the oath to the the constitution that people in the executive take, and also to supercede the authority of the other branches.
SCOTUS can't just "invalidate" an Executive Order like how they can invalidate an unconstitutional law (judicial review). The court system doesn't work like that. No one would have standing to bring such a case, nor does the judicial branch have authority over executive branch internal communications.
What could happen is that a federal agency follows an EO in a manner contrary to law, and that action causes some sort of harm or loss to a person. That injured party could then bring a legal action against the agency and the Court could order the agency to cease that action. But it still wouldn't invalidate the EO.
EOs are subject to judicial review. Whether it's a law or an EO someone typically needs standing to challenge it. Although, you can even have Congress create a resolution allowing that. Frankly, there's nothing wrong with the wording of the current EO. What is more likely to be challenged are any rules that come from that EO that run counter to the law.
"But it still wouldn't invalidate the EO." Truman and the steel mills would disgree.
"No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law"
Any employee obeying a SCOTUS ruling is in violation of this EO, unless the President agrees to that ruling.
No EO may say that SCOTUS can override them, but no other EO blocks federal employees from obeying SCOTUS.
"Any employee obeying a SCOTUS ruling is in violation of this EO, unless the President agrees to that ruling."
You forget the entire framework for EOs. No EO has "except when a court says otherwise". The EOs are subject to checks and balances, such as judicial review. If the EO exceeds its authority (not based on congressional or constitutional means) then it won't be valid. Meaning you can't grant yourself powers that you don't have the authority to grant under the framework. There's case law you can go look at for a history on it.
In the case of OEs, there's a long history that they are subject to judicial powers if they are not based in law or constitutional powers. In the case of this specific EO, it's likely to stand but the rules coming out of it are likely to be challenged if they overstep the authority in law.
The examples in that article are legitimate examples. The more concerning part in that article is the suggestion of not following court rulings such as the myth of Andrew Jackson's SCOTUS quote.
With enough gumption, audacity, charm, ... (or str, dex, int, wis...?)
a USA president, say, could do whatever they wanted, with impunity; we all do whatever we choose, caring to various degrees about the potential consequences.
Anyone can do whatever they want regardless of the rules. However, presidents do not have impunity. Presidents and their EOs can be held accountable by Congress and the courts.
Sure, EOs have been a scourge for decades, not just this one. They are commonly used to contradict what is written in law or extending their powers, such as choosing not to enforce. This is nothing new.
It's simply untrue is what it is. EOs are subject to judicial review and are only valid if there's a congressional or constitutional basis. You can't grant yourself extra powers outside of the existing framework, which the EO doesn't even claim to do. Again, other EOs don't have the framework enumerated in them and have been found to be invalid. There's plenty of case law one can look at.
You seem to be confused about the basics of constitutional law and the separation of powers. EOs are not at all subject to judicial review. Those are simply communications within the executive branch, like a memo. There is literally nothing to review and no case law supports your claim. But the judiciary does have the authority to issue orders regarding actions taken by federal employees and agencies if they do something contrary to federal law — regardless of whether those actions were motivated by an EO or anything else.
> EOs are subject to judicial review and are only valid if there's a congressional or constitutional basis
This is just nonsense.
Trump, for example, recently signed an EO to end the use of paper straws.
Where is your justification that there is a valid congressional or constitutional basis for this ? Of course there isn’t. Executive Orders allow the President to interpret existing laws as they see fit. Even in ways they were never intended to be interpreted.
Executive Orders were meant to give instructions to the executive branch on how to “faithfully execute the law”. They turned into — through several presidents, a way to bind the executive branch to a particular way of interpreting the law —- or in some cases —- making law out of whole cloth.
Trump is continuing this trend, and while we should all be concerned as to where he takes it, congress and the judiciary share the blame for not reigning in prior presidents.
previous presidents didn't have to worry as much about this before 8 months ago when SCOTUS declared presidential immunity. The only ones able to abuse this power was a few months of Biden (who said he wouldn't) and now, trump 47 after a month stretching it to a thin paste.
He took it that way because without a charitable interpretation such as yours, the wording leaves power assigned vaguely enough end run judicial review. Given this administration's history with attempts to grab power, I'd say your interpretation is _far_ too charitable.
If the Supreme Court rules against the Executive, they might order an agency to comply with a ruling or - barring that - hold an agency head in contempt. Under this EO, the agency wouldn't comply, since the agency would assume Trump's read of the law is correct - superceding even the Court's. If they tried to enforce a contempt order, the US Marshals would not comply either. Soldiers that swear allegiance to the Constitution would also have to defer to the President, even if the Supreme Court ordered the military not to obey an unconstitutional order.
The problem is the EO commands absolute subservience to the President's view of the Constitution, which makes it impossible for them to comply with Court orders.
Right, court orders are enforced by the executive branch. Conventionally court interpretations of the law are definitive and the executive branch enforces them.
This order tells executive branch employees, including the police and court officers, that they are required to follow POTUS interpretations over all others. Implicitly that includes over court interpretations.
> Under this EO, the agency wouldn't comply, since the agency would assume Trump's read of the law is correct - superceding even the Court's. If they tried to enforce a contempt order, the US Marshals would not comply either.
Why? The Marshals enforce blatantly wrong court judgements all the time. Court judgements are court judgements, contempt orders are contempt orders, both can say almost anything. There's no interpreting the law part of enforcing a judgement or order - the court judgement is just as valid whether it's legally correct or not.
> If power stays in the same hands, the system can be very stable - and not in a good way.
I don't think it actually can be that stable. I think I see what people are getting at when they say this, but it seems to me that authoritarian governments are generally quite unstable, because power never stays in the same hands. Power always changes hands, because we are mortal. Non-authoritarian systems are built to handle this, and ensure that it happens frequently enough that the wheels stay greased. Authoritarian systems are built around ensuring that the concentrated power stays only in the hands of certain people, and this is not possible.
To put it another way, non-authoritarian governments have less variance because they are taking some (very) rough average of all the people. Authoritarian governments are much more subject to the significant variance of individuals.
Of course we don't actually have that much historical data on non-authoritarian governments.
Chavez was kind of a thug, but he was also immensely popular with the commons. The people supported him, in a lot of his goals, and he was able to have a light touch, on a lot of the authoritarian stuff.
When he stepped aside, and Maduro took over, Chavez had established what was basically a dictatorship, and Maduro took the reins.
However, Maduro does not have the base support that Chavez had, and has had to use the stick a lot more. That sort of sets up a negative feedback loop, where more stick, means unhappier people, pushing back, which needs more stick.
Even if the current GOP really does have the best interests of the people in mind, if they dismantle the checks and balances, it's highly likely that a successor will use the power badly.
> Even if the current GOP really does have the best interests of the people in mind
Note that the Chavez/Maduro distinction you drew was not about “best interests of the people in mind” but the former being immensely popular and the latter not. The current Administration, whatever intent may exist in their minds, is very much not “immensely popular”.
> it seems to me that authoritarian governments are generally quite unstable, because power never stays in the same hands.
Well, it depends, the Kims and the Chinese Communist Party have been in power for almost 80 years. We do have a lot of history of pre-democratic regimes tho, and many of those lasted longer than modern the democratic states.
Trump is pretty old at this point. Even if he decided to go full dictator, how long does he have? Maybe 5 to 10 years? I don't think it would be quite as "stable" as Putin's Russia.
Most of HN is probably too young to remember him, but Trump seems closer to Putin's predecessor Boris Yeltsin from 30 years ago. They have flamboyant and unpredictable public personas in common. Yeltsin also loved public performances, media attention, and direct engagement with large crowds. He often made chaotic decisions based on gut feeling and instincts rather than any clear strategy. Over time, alcoholism made Yeltsin increasingly dysfunctional. His health deteriorated and he was frequently absent. His inner circle, which included powerful billionaires, selected a reliable young successor to maintain their grip and negotiated Yeltsin's resignation in exchange for legal immunity for himself and his family. That successor was Vladimir Putin, a relatively unknown and bureaucratic head of Russia's version of the CIA/FBI. Once in power, Putin systematically outmaneuvered those billionaires who had expected him to be loyal, and played them against each other to gain absolute personal control over the country.
Trump is a known quantity. His destructiveness is limited by his inability to maintain focus. I'd be much more worried about who follows him. Will they represent a return to decency, or will it be someone just as destructive but far more disciplined - like Putin?
TBH, I am one of those people that's a little too young to remember Yeltsin. I know him generally, but wasn't aware of the direct through line to Putin. Overall, that's a pretty sobering analysis.
That sounds pretty obviously unconstitutional. I don't see how a reasonable person could disagree actually. The whole point of the checks and balances is to prevent this.
Ok, so how would those checks and balances work if the president refuses to obey the courts? Who's going to enforce those court orders? I suppose you could say that the congress could impeach - but what if the majority of the House sides with the president? And if the House does manage to pass impeachment, it still takes 2/3 of Senators to convict - as we've seen that's a very high bar and very unlikely to happen. But let's continue the thought experiment and say that the Senate votes to convict - who's going to enforce the conviction and kick the President out of office?
Yes, if it keeps escalating. We're going to make bloody monday look like a kid scraped his knee. Depending on the escalation, we may even make the first Civil War look tame in comparison.
That's pretty much the fate of all dictators: a coup.
The president can take over command of state national guards from governors, however they are bound to defend the constitution just like the others and ought to obey unconstitutional attempts to give them orders.
I never said the checks and balances are working well... but the constitutional checks and balances not working well is a lesser problem than the executive branch just deciding that the president is also able to do the judiciary's job
It should be the trigger for country wide protests until the president is overthrown. It won't be of course. But it should.
Lots of things should have happened long before we got to this point. After Jan 6th he should never have been a contender for the nomination, but then he was and won it. And then the electorate at large should have chosen his opponent, but they didn't. And here we are. I'm not sure what would trigger nation wide protests that are large enough to have an effect - I suspect that in our spread-out country you'd need something like at least 20% of the population which would be about 65 million people. Most people are too apathetic to be bothered and by the time some final straw makes them care it'll likely be too late.
I didn't read too much into it, but apparently 11m people is the critical mass needed for a national protest that can't be ignored. So, it's more around 2-3%. Maybe more is needed, but at that point you will get a network effect of others joining in for the sake of joining in.
We're spread, but IIRC the 10 most populous metro contains half the population. It'd more be a matter in making sure each major hub has around 500k-1m people gathered. As a matter of scale, the Montgomery march was 256k.
>Most people are too apathetic to be bothered and by the time some final straw makes them care it'll likely be too late.
I suppose we'll see soon enough at this current rate.
Remember, Trump wants protests. He knows that even in a peaceful protest some fraction of "fuck-shit-up-contingent" will go around attacking people, destroying property, etc. And that gives him a justification to invoke advanced measures (Kelly, his DHS leader, specifically said that Trump had to be told multiple times he couldn't use the military on US citizens while Trump insisted that he did).
I think it's an open question at this point whether the military leadership would deny Trump's request.
Well, this EO just cleared up the confusion. The military will have to obey Trump (because his interpretation of the laws is the only interpretation that matters) and then the military will have to take on US citizens.
I saw somewhere that it often takes "just" 3.5% people taking to the streets to protest to overthrow a government, because for that to happen a much larger number needs to be supportive of the protests.
Even in the worst police state, the dictators power ultimately depends on enough of the people going along with it.
Americans could change this, if enough people cared beyond pressing like on facebook
> The employees of the executive branch are not intended to be a check on the executive branch's powers.
That's not entirely correct. All civil servants and military swear an oath the Constitution and are required to disobey illegal orders. This EO attempts to largely eliminate the concept of illegal orders.
> Nothing prevents the next president from having a radically different opinion.
Of course, this is only relevant if they are interested in having a 'next' president, something which it seems a segment of society is less than open to.
I would like to believe(perhaps naively) that the segment of population which genuinely believes in doing away with democracy is pretty small.
However, in case such an event comes to pass, what is far more important is the segment which actively opposes such a power grab. Authoritarians reply on the passiveness of the majority coupled with a small but very vocal and rabid fan base.
It's quite possible that a slow and gradual slide in that direction is underway, but the minute even a small faction of people actively oppose that, strongmen tend to find the limits of their power pretty quickly and mostly in ways that are pretty detrimental to their health.
The civil rights movement is a pretty good example of the power of a small set of people being enough to have critical mass.
The civil rights movement would not have succeeded without the confluence of growing anti-government sentiment and protests around the Vietnam War, and fears about the spread of communist influence in the US. This forced American leaders to give 15% of their population basic human rights denied to them under Jim Crow laws.
Then combine that with all the election interference we know Elon was doing, and previous years of being concerned about the security of voting machines.
Proving it will be hard now - I'm certain if there was election interference, that evidence is all gone now. For my money though, I find it hard to imagine that something this widespread across so many states was executed without any whistleblowers.
I guess if someone comes up and shows these same discrepancies everywhere where a particular manufacturer had a footprint, I'd probably be more on board with screaming election interference.
> I guess if someone comes up and shows these same discrepancies everywhere where a particular manufacturer had a footprint, I'd probably be more on board with screaming election interference.
The fact this anomaly only happens in swing states under commonly identified conditions for foreign elections with widely accepted interference isn't suspicious enough? You can recreate the Russian tail yourself with the available data. A commenter in the HN thread I linked even posts the code to do so.
I feel like suspicious voting patterns should be investigated, not that I have any belief that will happen. We already have proof of a consistent statistical anomaly.
We definitely should investigate. No argument there. It just won't make a difference. At this point, they have gotten away with it, and the opposition did not put up a fight. They are not all of a sudden going to start putting up a fight, when there's no way they win that fight. (But realistically: they are bad at putting up fights over things in the first place, which is how we ended up here - the party with no moral qualms about much of anything ran roughshod over them)
I agree with you it's likely pointless. I'm not arguing that "this information will change the election." That said, I do care about election integrity and the more evidence we have of fraud the more we can (theoretically) correct for it in the future.
I'm very much of the opinion there's going to be a violent civil war before the decade is over.
I think it depends entirely on what the military does. People seem to think the military will just fall in line with the president. I think a military coup is far more likely than that.
It may be our only hope but I hear they play a lot of fox news on military bases. Everyone I know who are in the services voted for trump and with loyalists installed in top leadership I don't see who would organize any resistance let alone a coup.
Trump has explicitly said it's the last time people will have to vote. I don't know why people are glossing over this. He intends to take full control and never give it up. The time to act is now, not when he announces some emergency that is a thin excuse to cancel elections.
'The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch'
Yes it is trivial for the scope of presidential interpretation to extend over the executive branch. And this excerpt posits nothing about the oversight authority of other branches.
The more interesting phrase is about the AG. While the AG is already constitutionally understood to serve at the president's pleasure, this EO curtails any informal independence that the AG is afforded from past norms.
So I suppose it's declaring that AGs under a Trump administration shall serve as rubber stamps with no independent authority to interpret the law, granted via his claimed constitutional supremacy over the executive branch.
Perhaps it is a edict to AGs who've resisted orders from the President recently, to notice them that job title is the most supreme form of legal analysis in this executive branch. IANAL
“authoritative interpretations of law for the executive branch”
That means that if Congress passes a law with an implicit/explicit interpretation the Executive Branch can simply ignore that.
And there are no existing EOs that say Congress needs to overturn it. It has been the rule since forever that Congress makes the laws. Executive Branch implements it accordingly.
This is basically a tightening of the "major questions doctrine". The idea is that Congressional law must be explicit or leave it up to the executive.
If law isn't clear, this states the executive decides, and it isn't a matter of supposing what congress intended, or would have wanted but didn't define.
But you need to combine it with the fact that a whole bunch of agencies e.g. FCC, SEC are now no longer considered independent from the Executive Branch.
It’s the combination of actions that makes this so concerning.
One thing I'm interested in that they didn't cover in school, if there's 3 branches of government, then what branch were the independent agencies a part of before being moved into the executive?
Yes, the expanse of power is concerning. Historically, all three branches have substantially expanded their powers since inception. People in power always seem to take more of it.
Of course they were and are part of the Executive Branch. But the precedent for many decades was they were independent. Because not everything that happens in this world is governed by an explicit law.
And what is happening is unprecedented and right to be concerned about it.
However, we are several years into a trend of courts curtailing the ability of agencies to write laws themselves without explicit and detailed direction.
West Virginia v. Environmental Protection Agency is a good example of this. Congress didn't vote on the EPA regulating CO2.
Before this EO, what happened if a lower level official in the executive branch had an interpretation of the law that was different from the President and Attorney General?
Was junior staff attorney in the Tulsa field office previously able to override the President?
> In general, people are going to interpret this EO with their own lens.
IMO if you could look at this executive order in a blind test somehow not knowing who signed it and can ask yourself "would this be incredibly concerning even if it were passed by the political side I agree with?" and the answer is no then you're not looking through a lens, you are drinking kool-aid.
> Given that the executive branch implements the law, this would imply that the president's interpretation is all that matters. The other two branches have no real role left to play.
What role did the other two branches of government ever have in the executive branch? You're describing the normal state of affairs as if it were a shocking escalation. Actually, it's any deviation from this that is a constitutional problem. The elected president is the head of the executive branch. If he is not the head, then the executive branch has no connection to any democratic process at all. Who is a bureaucrat serving if not the president? An inner sense of fairness or fashion?
My lens is that the military is a federal agency, and our soldiers are federal employees.
This EO combined with the "he who saves his country breaks no law" quote points towards an eventual attempt at a coupe or similar use of force to retain power. Thankfully there are currently no partisan militias in the DOD, but I could see an attempt at a Saddam-style seizing of Congress
In the second quote, the phrases "in their official capacity" and "as the position of the United States" are doing a lot of heavy lifting.
The EO is going out of its way to broadcast that its purpose is to establish a unitary policy position of the executive branch that stems from the President, rather than having "independent" agencies providing contrary position from within "in their official capacity" "as the position of the United States." The logical leap from there to "the President's (unrestricted) opinion is the law (without reference to Congress or the Courts)" is vast.
The EO does not bear on the balance of powers between branches of government, but on the ability for the executive branch to function as a single entity within that balance, rather than a multiplicity of quasi-"independent" agencies.
The disincentives that have always prevented the executive from blatantly violating the law are still in force and unchanged. They have been functional through 250 years of Presidents testing the limits of their authority.
> The disincentives that have always prevented the executive from blatantly violating the law are still in force and unchanged. They have been functional through 250 years of Presidents testing the limits of their authority.
Can you elaborate on what those disincentives are? I am thinking:
- Impeachment
- Charged with a crime, found guilty, sent to jail. It seems like this one is no longer possible due to Trump v. United States
- Killed by opponents
Without the criminal charges being on the table, those disincentives look a lot weaker to me.
Similar to Roe v Wade and Chevron, they'd need to overturn Trump v. United States and then charge him with crime (or contempt). So there is a ball in the judicial branch if they get pushed too far. Just extra steps.
The 4th one is us getting a retroactive watergate effect where republicans wake up and approval plummets. There's a non-zero chance Trump steps down if he pisses off everyone.
This only happens with some truly heinous actions that can't be spun. Like, bombing american soil or a ulta-blatant conspiracy with China/Russia. Or you know, him killing Medicare/social security (the most likely actions, given the budget proposal).
>> Similar to Roe v Wade and Chevron, they'd need to overturn Trump v. United States and then charge him with crime (or contempt). So there is a ball in the judicial branch if they get pushed too far. Just extra steps.
_Who_ would charge him with a crime? Prosecution is the responsibility of the Executive branch via the Department of Justice. The only option the court would have is Contempt, and I don't see that being particularly effective.
The only legal avenue this order leaves open is impeachment, and because that requires a 2/3rds majority in the Senate, there's all sorts of ways to prevent it. Even if the republican senators started to oppose him, the DoJ could be used to threaten and investigate senators who step out of line. Or a violent mob could be used to interrupt the impeachment vote.
>_Who_ would charge him with a crime? Prosecution is the responsibility of the Executive branch via the Department of Justice.
He only needs to piss off two SCOTUS's to start to have the entire book thrown at him. Unlike Congress, Judges tend to be somewhat resiliant to the political atmosphere. That's a lot more viable than congress. Less people to squabble with and people less concerned about losing their job. I woudn't even count out the entire DoJ on this either.They've been denying some of Trump's craziest EO's.
>Or a violent mob could be used to interrupt the impeachment vote.
Good. I'm tired of being blamed for "rebellion" everytime someone stands in front of a building with a sign. Let Jan 6th repeat while all eyes are on the Capitol looking at Trump.
I'm no legal scholar, but sure, I'll elaborate as a layman.
During the Presidency, impeachment and judicial review are the important checks. During the transition of power, state-controlled (as in, not federally controlled) elections and Congressional certification are the important checks.
While many people are disappointed with Congress' hesitation to impeach, impeachment as an institutional protection still works as a protection against blatant disregard of the law. Congress faces the threat of re-election practically constantly, and obvious disregard of the law without impeachment is not in Congress' best interest.
Judicial review is clearly working. I don't need to recap the large number of cases that have be brought against the Trump administration this term. The administration is abiding by stays/injunctions, and the Courts are issuing opinions independently. The Supreme Court, even Trump-appointed Justices, has ruled against Trump before and will likely do it again.
State-level control of Presidential elections and Congressional accountability to the public during certification protect against the spectre of a third Trump term or end of democracy. This scenario is extremely unpopular even among Trump supporters and would be a disaster for those in Congress.
The recent Supreme Court opinion about Presidential immunity in his official capacity explicitly defers and leaves to the lower Courts to determine the precise limits of that official capacity. It is beyond belief that the entire judicial branch would collectively enable dictatorship "bEcAuSe iMmUnItY".
That opinion specifically defers to lower courts to define the precise limits of the President's immunity. I refuse to believe that the collective effort of the judicial branch would construct those limits in a manner that enables dictatorship.
The lower courts can be appealed to the higher courts, so the opinion of the supreme court was effectively that the president is immune if they say so, on a case by case basis.
It was a clever but blatant way to give their side immunity without giving it to Biden
You're correct that the Supreme Court ultimately has final appellate jurisdiction on matters of immunity, but that's a long way from enabling dictatorship.
To get there, we would need to assume that the Supreme Court, including only 3 Trump-appointed Justices, is both unwaveringly partisan and unwaveringly supportive of dictatorship.
The Supreme Court is unwaveringly partisan and corrupt; its members have taken bribes and invented new rights for Trump to keep him out of jail. I wouldn't assume that they'd reject a dictatorship.
> This can potentially enable an end run around congress and the courts in that the President can easily choose to interpret laws in a manner inconsistent with the intent of congress and courts.
How does it potentially enable that? The executive branch has always served under the delegated authority of the president. The executive branch has always been able to operate outside the laws as written and ruled on by the other branches, because they have practically no hard power.
Presumably the citizen militia are supposed to be the check and balance for that. The people have always been the ultimate deciders of the government's power.
>This can potentially enable an end run around congress and the courts in that the President can easily choose to interpret laws in a manner inconsistent with the intent of congress and courts
Good.
I hope they do so. Because if trump and friends do it it'll get struck down and precedent will be established. It will likely be too late to stop them, but it will stop the next guy. And the next guy may very well be some establishment swamp creature that would never have encountered any resistance from the other branches doing the same and worse.
Given that in all cases interpretation is required, are you trying to make the claim that the President (who is elected and can be voted out) should not make the interpretation, and that some employee who is not elected and works for them should?
I think trumps legal strategy is basically, putting the quiet part into writing. It’s as you already said, what has been the norm
If trump doesn’t like how the departments are executing his policy he has the power to steer it. It makes sense he is the ultimate authority for the executive branch.
Blame congress for ceding their oversight duties to departments. Which IMO is the root of the issue.
I see it as notice to the members of the executive branch that insubordination will not be tolerated. The Chief Executive and the Attorneys General set the final executive branch decision on all matters, and all other members of the executive branch are expected to toe that line.
>However this part of the EO is pretty concerning
>> 'The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch'
and later
>> 'No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law'
In the corporate world, when you’re unsure about something legal, you go to your in-house counsel and ask how to interpret the law, you don’t decide for you or the whole company. Same thing is happening here: if in doubt, speak to the AG.
This isn't the corporate world and the worst-case scenario here isn't being sued or taking a trip to bankruptcy court, it's the potential downfall of a nuclear-armed superpower.
Which is why business leaders, at least ones like Trump, need to be kept far, far away from government. The goal isn't to maximize value, it's to administer a society in a sustainable way.
It doesn’t really matter, unfortunately the whole federal workforce has a single boss: POTUS. And now they have a really moody one.
The US needs to come with some new checks and balances for presidential power. With every new election the president asserts more and more power, and the Congress sits idly by.
So i think this is all insane, and a power grab, to start out.
But not because of these parts of this EO
I think people are trying to assume this says "the president gets to ignore the courts and congress", but it, uh, doesn't actually say that anywhere. I would very conservatively guesstimate at least 50% of people assume trump will go that route, and so they assume this is the method by which he will do it. But unless i missed something, he's actually said the opposite consistently - he wants absolute power over the executive agencies, but will follow court orders.
If he was going to start not following court orders, i don't think he would have any trouble saying it. I don't think he would issue an EO, either, since those can be challenged. I think he would just continue to fire anyone who doesn't do what he says, or he otherwise disagrees with, and let each individual decision spawn a new court case, rather than give a really large EO that can be challenged and give him a much broader setback.
As for this order itself, I really hate taking a side I hate here, but there is almost nothing interesting in the parts you quote:
To start - AG opinions (and OLC opinions) were already binding on the executive branch.
So they already provided authoritative interpretations of law.
Heck, the entire FBI is guided only by AG opinions and guidelines on how to conduct investigations, and has been since it's creation. There are no separate rules - it's just the AG guidelines and opinions.
(There is also a secret set of AG guidelines for classified investigations, and they release a heavily redacted version of it)
I don't point this out to say it's awesome, i point it out to show that this state has existed roughly forever. It's just not commonly known i guess.
The part about the president was also already true in exactly the way it is described here. This is what caused things like the saturday night massacre - in the end, the president does get to say what they want to happen, and what they think is legal and people can either resign, or do it. That was always the choice.
This is all secondary to whether courts can say the president/AG's authoritative interpretation is wrong - they can and do already.
Nothing in this EO says otherwise.
>No employee of the executive branch acting in their official capacity may advance >an interpretation of the law as the position of the United States that >contravenes the President or the Attorney General’s opinion on a matter of law'
This is also well within their power to request and enforce.
It was also already true in practice in the vast majority of cases, and most importantly, before the highest courts of the land.
At the highest court level (SCOTUS), the US is represented by the solicitor general's office, which is part of the DOJ and controlled by the AG. They also look at appeals court decisions and get involved where needed to direct positions.
In lower level civil matters, the US is generally represented by the civil division of the DOJ, and therefore controlled by the AG.
The only thing this order theoretically changes is to say that the agency counsel who would represent the US at lower levels for various agencies can't take positions that contravene the AG or president.
That is, the counsel for the EPA can't decide they think the president is an idiot and that they are going to take a position that is the opposite of what the president wants.
There is actually little to nothing controversial about that - they shouldn't be doing so in the first place, regardless of who is president or AG[1]. The president always had the power (though rarely exercised) to tell the EPA in the case above to change their position, and fire every single person who refused. It has even happened that they have forced agencies to change positions at the district court level, fired people who refused to follow their interpretations, etc.
All upheld since the days of the founding fathers.
There is and never was a 4th branch consisting of independent agencies.
The issuance of regulations and their interpretation to flesh out the law is something congress is delegating to the executive branch when they set up executive agencies.
The executive only has the power delegated to it here, and congress isn't even allowed to delegate significant power here.
To see why it's not controversial at all, if they moved all the agency counsel to the DOJ, you would have the same effect as this order.
This would not be illegal for most agencies, though some have interesting appropriation and other restrictions that require consulting with congress prior to reorging them and whatever.
Put simply:
Congress has the power to restrict or direct agencies through legislation (and the EO even mentions this), and the Judiciary has the power to say everyone else's legal interpretations are wrong.
In between, the executive has always had the remaining power to direct the agencies and how they operate, and have done so, just not as clearly as you see here.
What this order explicitly forbids actually has also been a practical problem before, and the AG's and solicitors end up having to explain to a judge why they changed their position from the lower level one, and get made to look stupid. Not that i believe they are doing it to fix that, but it has abeen a real problem.
So like I said, while I think there is a huge power grab going on, this part of the EO isn't it.
[1] The office of the inspector general is basically the one agency that exists in part to audit and investigate the other parts of the executive branch, and so would normally take contrary positions. But those positions are not taken in court, they just issue reports and inform congress. The agencydoesn't, and has never had, any rulemaking power (except to the degree necessary to carry out it's own function), any disciplining power, and any authority. That is why it is legal for it to be independent and why it was illegal for the president to fire the head of the agency.
Did you see Walter Olson's Cato bit? I had the same take you have (I have associates that worked at FTC until recently, were familiar with the process, and pointed out basically the same thing --- that the independent agencies have so many DOJ touchpoints that the administration already has effective control). But Olson says the prospect of all the independent agencies needing to run their rulemaking processes through OIRA would be a big deal.
I agree that part is the more substantive change, but OTOH it seems reasonable to me: Why would the president have less oversight over the regulatory acts the bodies he nominally (and constitutionally) supervises than he has over the laws passed by congress, by virtue of them passing his desk on the way to becoming law?
It might not be a wise change for him or his party, given that all changes to the practice and structure of government ought to be viewed through the lens of your worst opponent wielding them...
I also (like nullc ) agree with his take that the OIRA part is more important. But I’m sort of not sure I agree with his argument about their independence. Walter is brilliant so I may just be missing something that is in his brain and left unsaid. ;)
He agrees that most were never really independent but points out some and goes into a chat about the UET. The UET seems mostly irrelevant here. There is no 4th branch.
They are either executive agencies or not.
They are further either exercising power delegated from Congress, or exercising power delegated from the executive. If the former, Trump can’t control them, even under most interpretations of UET, but then you have non delegation problems to deal with. This is the OIG case.
If they are exercising power granted to the executive, it’s literally his right to control them.
The constitution doesn’t give a third option where congress can establish agencies that have power from the executive but the executive can’t control them. They can only establish agencies with no real power that the executive can’t control
I can believe after ~250 years we have some weird edge cases, but it seems fine to clean that up
It's really sad no one just looks up the legal principles conservatives are pushing forward together with Trump.
Here, it's the unified executive theory, which is based on how the US system had worked for its first century.
Same with the birthright citizenship. The conservative argument is actually to a degree fairly reasonable. If I say this, then the current SC will surely rule in favor.
Ironically, this is reminiscent of Bush-Cheney justifications for a host of programs such as NSA warrantless domestic surveillance, CIA black site rendition flights, Iraqi and Afghan Reconstruction, etc.
Method-wise, GW Bush used signing statements on more than 100 laws in collaboration with his AG to express executive control over interpretation of laws. The language of some of these is interesting, eg Dec 17 2004 on an intelligence reform bill:
> "The executive branch shall construe the Act in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch, which encompass the authority to conduct intelligence operations."
(Which was a long-winded way of saything were doing warrantless surveillance of US citizens, also circumventing the courts)
The other method was Office of Legal Counsel memos, eg Yoo's torture-is-OK letter for the CIA, etc.
Curiously, Cheney, the main advocate of unilateral executive power, was campaigning for Harris - but Trump can now use the Bush era as precedent, which is equally odd as Trump ran directly against some of those Bush-Cheney policies in 2016...
As to why this is a bad idea, look at King Lear and Macbeth, both being examples of unitary executive power gone wrong.
However this part of the EO is pretty concerning
> 'The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch'
and later
> 'No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law'
This can potentially enable an end run around congress and the courts in that the President can easily choose to interpret laws in a manner inconsistent with the intent of congress and courts. Now, we can argue the point and say that presidents have already done so in the past and that congress/courts should have been more specific. However it quickly gets into the issue of the impossibility of congress or the courts anticipating and specifying every detail to avoid a 'hostile' interpretation.
This part of the EO says the president's opinion is the law as far as the executive branch is concerned. Given that the executive branch implements the law, this would imply that the president's interpretation is all that matters. The other two branches have no real role left to play. Given the supreme court's ruling on presidential immunity, this is a dangerous level of power concentration.
Even if you support the current president's goals and objectives, setting up the president as the sole power center is an inherently unstable system. Nothing prevents the next president from having a radically different opinion. There is a very good reason why the founding fathers built in an elaborate system of checks and balances.