Comment by 827a
1 year ago
It seems to me that the operative line:
> The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch.
conveys respect to the judiciary branch, and states that this only applies to situations where the executive branch is interpreting laws in isolation during their enforcement of them (which happens quite often).
However, following that line:
> 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.
Feels weirder, because it implies that when executive branch employees find themselves between a rock and a hard place on when a law is interpreted differently between the President and Judicial branches they must follow the Presidential interpretation; or they'll presumably be fired.
The way I see it: This isn't a broad departure from the behavior of the system two weeks ago. The office of the President, especially under Trump, has regularly taken the action of replacing employees who are unaligned with the President's agenda. When the rubber hits the road and we get to a material matter that the President and the Judicial branch disagree on, what it might come down to is: the Judicial branch can bring a suit against the employees to follow their interpretation, but the President could fire them if they do, and the President could pardon them if they instead follow the Presidential way. That's, essentially, the same situation the American system has been in for hundreds of years; the only difference right now is that we have a President who might actually do that.
Which draws back to something I've said a few times: Presidents from both parties, over the past 50 years, but especially Bush and Obama, have been relentless in interpreting the law in a direction which centralizes power into the Executive. The "normalcy" of the office until Trump was never enforced through legality; it was only decorum. It was only a matter of time before someone rejected this decorum, born out of congressional deadlock and the dire state of many Americans' wellbeing, to make the government and executive branch actually do something about it.
This isn't the first time America has had to face this question; not even close. Trump isn't exposing new weaknesses in our system; the weaknesses have always been there. Worcester v. Georgia (1832) is a great example. It ended with the President saying F.U. to the Supreme Court, refusing to enforce one of their interpretations, and, well, the Trail of Tears happened.
"Weakness", however, is an interesting term to deploy for this; it implies that the default state of the American system is that you need supermajority alignment for the government to accomplish anything, and if actors in the system find a legal way around that requirement, its a "weakness". Phrased more simply: Strength is inaction, Weakness is action. Of course, many Americans would disagree with any assertion that this is desirable, especially in the unstable geopolitical and economic situation we're in. Trump was elected, by majority electoral and popular vote, to take action; most Americans would not call the cracks he is cleaving open to accomplish his agenda a "weakness" of the system.
The only reason supermajority is required in the current Senate is because a Senator can hold a "pocket filibuster" which in practice gives any single Senator the power to veto any legislation at any time for any reason for as long as they are in the senate. Were they to change their procedure and require Senators to actually speak in order to exercise a filibuster you would see this change pretty quickly. Strom Thurmond spoke for days to filibuster the civil rights laws, and he eventually had to stop because he got tired. He had aides holding buckets under the podium for him to relieve himself at times.
I mean, yes, technically it's "not new" for the President and Judiciary to disagree at this level. But doing so results in events like the Trail of Tears, which is pretty bad.
People are alarmed and concerned because they know it's not new. It's not difficult to find horrors in American history. Decorum and norms exist for the purpose of attempting to smooth over these stress points and make a safer power structure that hopefully prevents tragedies like this. The relative peace and safety we've enjoyed for the half century or so has been largely based on a modern era of good feelings and respectful norms.
When those norms go away and the authoritarian president dares the court to enforce the laws he breaks, people, rightly, get scared. The courts don't control the army, he does. I hope the generals remeber their oath, but oh yeah, he's been replacing them with loyalists too.
We know it isn't new. We've seen the horrors of history. That's why it's scary.
Yeah yeah, America lived on and stuff after all of that. But a lot of oppressed minorities didn’t. And if you're any minority group that the ruling party doesn't like right now, you are totally justified in being deathly afraid.
(For the record, I was against centralization of executive power under Obama and Bush too. But open and blatant disrespect like this is as especially alarming and should be treated as such, not normalized or justified)
I don't disagree; except on the point that this is open and blatant disrespect. I don't have the impression that the purpose of this action is to subvert the judicial branch toward the goal of centralizing power into the executive branch. It could be interpreted that way, but the reality is that constitutional law on this is pretty clear, and Trump hasn't gotten to the point of breaching the constitution (yet).
If you've followed Trump for long enough, one of the things he talks about a lot are the "unelected bureaucrats" in the government making the real laws that end up impacting Americans day-to-day, more than Congress oftentimes. That's who this is targeted at; subordinates within the executive branch. This isn't a law, or even an interpretation of an existing law, or an expansion of executive branch powers, or even an expansion of the powers of the office of the President (because legally, as far as I know, the President has always had this power); its best described as a memo elaborating a process.
One example that might be applicable here is Net Neutrality. FCC enforcement of Net Neutrality goes back and forth; it was about to happen, until Trump in 2017 when the ruling was cancelled, and then in 2023 it came back, and now it probably won't happen again. What you're seeing there is, in the most accurate sense, something this action would expressly cover. There's zero congressional law dealing with net neutrality. Every time the FCC has touched the topic, its been the unelected bureaucratic appointment of the latest elected President making a new rule that can just as quickly be overturned or interpreted differently by the next President. Trump's new action just recognizes a process that's already been happening, basically forever.
What net neutrality really needs is the same thing a ton of these bureaucratic agencies need: a law, passed by congress. Write it in stone.
But, this is a rare thing in modern America, and maybe it always has been. Our legislative branch sucks. Seems like our Founding Fathers may have wanted it that way, but I doubt they fully understood the consequences. Getting it to do anything is like pulling hair, and that's why Executive Actions (read: authoritarian rule) have become so common. Trump, to some degree, through his mass layoffs, the defunding of various parts of the government, and now the codification of the process that the President makes decisions on-behalf-of the executive branch, is trying to scale the bureaucratic state back. Is that a good goal? Will it be successful? I don't know. But that is, under my interpretation, the best description of his aims.
> Trump isn't exposing new weaknesses in our system; the weaknesses have always been there.
exactly there; the system relies on everyone following the rules and doesn't have much in the way of remediation, other than impeachment, if the president just decides to ignore the other two branches. possibly SCOTUS, but they've hamstrung themselves with their recent decisions
And interestingly; its not clear to me that we'd have a better system if many of these weaknesses were patched. As software engineers might say, the quickest way to fix all the bugs in a system is to delete the system; the quickest way to a government perfectly resilient to authoritarian control is a government which simply can't do anything. This services no one.
At the end of the day, you can build safe-guards, and the American system of safeguards is among the best in the world. But, we also need leadership that can and will act to solve emergent problems, lest we cannot adapt to an evolving world. And, honestly, America has struggled for the past 20 years, especially since 2008. Our solution to everything has been "throw money at it", when we don't have the money we abuse our position as global reserve currency to just print more, and no one in charge has had any desire to think critically about how we get out of that hole, or how we solve any of the other problems the country faces smarter not richer.
I don't know if Trump and his team will make the problem better or worse. I feel pretty confident that they'll make it worse for some already-marginalized people, and I wish that wasn't the case, but the world that is likely to happen should we not solve these problems will not be kinder to them than the one they're in right now. Someone like Trump was guaranteed to happen after our insane, elitist, kick-the-can-down-the-road response to the GFC and COVID. There were saner voices in the room at those times. No one listened to them.