Comment by bobongo
1 year ago
“ Sec. 7. Rules of Conduct Guiding Federal Employees’ Interpretation of the Law. The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. 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.”
This does not bode well for that country’s democracy.
I think a lot of people that are freaking out are missing that this applies to the executive branch, over whom the President has already perfectly well established. Literally the first statement of article 2 of the US Constitution (which lays out the power/rules for the executive branch) is "The executive Power shall be vested in a President of the United States of America."
The main point of this executive order is likely part of the ongoing issues related to the chevron deference. [1] Chevron deference [1] was a (IMO very weird) legal standard that was overturned in 2024. It required the judicial to completely defer to the executive branch in cases where the laws around executive departments (generally relating to the the limits of their regulatory power/authority) were ambiguous. When this was overturned, the judiciary regained their independence and were once again able to hear and independently judge cases around these executive departments.
This order is now stating that the executive branch departments themselves will no longer be independently interpreting the law at all, but instead defer to the legal opinions of the head of the executive. The order itself also makes it clear that it does not allow rejecting or unreasonably redefining the laws applying to the various departments - instead the main issue is where potential ambiguities and related limits/allowances will be determined. And of course those determinations could then be challenged by either the judiciary or the legislative (by passing overriding laws).
The short version of this is "Executive departments will now be directly accountable to all three branches of government - executive, legislative, and judicial."
[1] - https://www.law.cornell.edu/wex/chevron_deference
This is just a statement of the unitary executive theory. Unitary executive theory is controversial, and the controversy there did not (until, oh about last month) align with party lines.
We’re not “missing” anything, your interpretation of the Constitution is incorrect. You may want to scroll up and read Article I, which constrains Article II (that’s why it comes first).
Your understanding of Chevron deference is also incorrect, for what it’s worth.
> You may want to scroll up and read Article I, which constrains Article II (that’s why it comes first)
What in Article I imposes constraints on the presidency? It's almost all about the legislature itself, and hardly mentions the executive. Specifically, I don't see anything that lends credence to the idea that Congress can control the workings of executive departments.
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> this applies to the executive branch
So he gets to tell police what the law is and who to arrest within the "law" that he proclaimed.
> It required the judicial to completely defer to the executive branch in cases where the laws around executive departments (generally relating to the the limits of their regulatory power/authority) were ambiguous.
Why doesn’t congress do its job and write laws that do things?
Because the republicans punish their own when they reach out to support bipartisan efforts.
Even right now, congressmen have been threatened with being primaries if they don’t toe the line.
There has been multiple decades of very public efforts to degrade and break the American system. Ever since watergate.
Congress was broken.
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The way regulatory authority works is that Congress writes laws that offer general guidance, and then regulatory body creates rules around that guidance. It can enable them to quickly react to changing scenarios, and also offer greater expertise or more detail than may be reasonable to expect of Congress. The issues arises when it's unclear if actions and guidance are aligned.
For a contemporary example, part of the CDC's power comes from Section 361 of the Public Health Services Act [1], which grants them the power to execute orders to prevent the spread of disease into the country or in between states. Examples included inspection, pest extermination, fumigation, and so on. The CDC invoked this power to prevent landlords from evicting delinquent tenants during the COVID stuff.
That was a gross enough (and also, critically, harmful enough) violation of their mandate that it was able to be challenged in the courts and eventually tossed even in the Chevon Deference era, but a lot of scenarios are much more ambiguous. So now their actions will be fully subject to oversight from all branches of government. The end result is that executive departments will have a much harder time overstepping the bounds of authority granted to them by Congress.
[1] - https://www.govinfo.gov/content/pkg/COMPS-8773/pdf/COMPS-877... (page 405)
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The solution is to fix congress, rather than further consolidate executive branch. Later leads to very predictable outcomes, and they aren’t exactly democratic.
I’ll choose stale democracy over striving autocracy each day every day.
It'll take some time, but I would highly recommend reading the oral argument transcript for the Chevron decision. You'll see some good history and opinions on why Congress now does what it does.
It wasn't always so. In 1979, when Chrysler wanted federal loan guarantees, Congress passed a specific act to do so. Contrast that with what's now a blanket check to agencies thru an Omnibus
https://www.supremecourt.gov/oral_arguments/argument_transcr...
Where do you think all these powerful agencies came from?
You're misunderstanding the EO. It has nothing to do with the Chevron deference (and you are also misunderstanding the impact of the Chevron deference)
No - it’s a statement that the executive branch will (as a matter of policy) ignore Judicial and Congressional oversight. Unless it wants it, anyway.
This has nothing to do with "democracy" in any way. This is the equivalent of a CEO publishing a memo telling employees how to interpret things that happen outside of the company (e.g., new laws, social trends, etc.) It's the CEO's job to align their workforce to have the same interpretation of information. Federal judges can still rule on issues brought before them but the judges have to provide Constitutional- or precedent-related rulings.
Why are Americans acting so surprised that the President has this authority? That is his job, as it was for all presidents before him. This executive order is saying that the "employees under the CEO" do not have the authority to usurp the "CEO's" interpretations of law. Checks and balances still apply, of course; Congress can intervene if the President is acting in ways that Congress doesn't like. That's what impeachment is for--and impeachment is a process regardless of whether the President is issuing "illegal" executive orders or doing something else like what Nixon did.
The process works; blame Congress for not holding the President accountable in the ways outlined by the Constitution.
I have a puzzle for you:
Let's say we have a democracy where the only rule is highest vote wins. Let's say 51% of the people vote to enslave/oppress the other 49%.
Maybe they vote for literal chattel slavery. Maybe they vote for healthcare for themselves but not the others. Maybe they vote to tax the others at the maximum possible or implement tax policies that dis-proportionally affect the 49%. Maybe they vote the 49% cannot own homes and therefore must pay rent to a landlord. Maybe they vote that the 49% must register for the draft, but not them. Maybe they vote that the 49% aren't eligible for public school while they are. Maybe they vote that the 49% is not able to own stock or register for a company. Let's pretend those are legal, it is definitely possible. Slavery at one point was constitutionally allowed.
Is that a Democracy? A Liberal Democracy? A Democratic Republic? A Constitutional Democratic Republic if the law were enshrined on paper?
Would you want to live in that country? Would you want to live in that country if you were in the 49%?
What is the key ingredient that makes something a "Democracy" rather than tyranny of the majority, "mob rule," or "might makes right"?
Well, it is a democracy, the key being that the majority of people voted for some law. Whether you'd want to live in the country is a different story. Sometimes, democracies are not always the best form of government, they are as susceptible to systemic issues as any other form of government.
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That sounds like Ancient Greek democracy except the gap was much larger than 51-49.
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If you ignore all context, their support of the unitary executive (anti-american) theory, and the recent comments that "if a president does it, it isn't breaking the law" and "going against the will of the president is going against the will of the people"...
If you ignore ALL of that then you have a talking point worth debating.
Because people in independent agencies are by act protected from exactly these things. Think for a bit, why were they not just called "agencies"?
And for all the stupidity of congress, if the fail to protect against a self-coup, that doesn't make it any less likely.
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I've been seeing posts like this all over hacker news. They appear to be structured like rational arguments but really make no logical sense.
I have no doubt that these people know exactly what they are doing, and are intentionally lying and spreading these "very reasonable" arguments as a blueprint for others to copy.
Their goal is to fluster and confuse the situation.
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