Comment by arunabha
1 year ago
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.
> it is hard to imagine this EO standing
There are many things that I thought would not survive the scrutiny of good people within the system of checks and balances.
But here were are. It seems that "good people within the system of checks and balances" were the only obstacle to absolute power.
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.
> The spoils system was still prevalent in many state and city governments until the mid 1900s.
Chicago, NYC, the entire state government of New Jersey....
That stuff still goes on today.
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.
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> 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.
> This EO eliminates the concept of an illegal order since the law would be whatever the executive interprets it to be.
Isn't this exactly how it works? They interpret it and that stands unless challenged in court.
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.
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> 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.
Good luck to you all - Dog bless.
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.
How does this executive order compare to an oath of allegiance?
Seems like a major reach to compare the two unless you are rationalizing backwards.
One can hope…
If the Supreme Court and Congress has no enforcement power, though, what recourse is there?
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.
Democracy is not a passive form of government.
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Protest and revolt. Government for the people and by the people
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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.
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I think this is what the second amendment was about
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> 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?
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sic semper tyrannis
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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.
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This is not up for debate. It is settled law.
Yes, and as a harmless side effect also ensures Trump's word is law.
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.
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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.
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>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?
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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.
If Congress disagrees they have ways to override the president. They can pass new laws or even impeach him.
But unless the dems get 2/3 the senate that will never happen.
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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.
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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.
https://www.justice.gov/sites/default/files/jmd/legacy/2013/...
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> 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.
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> Autocracies can be very stable...
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.
Just to be clear I lived in Russia.
Or if you manage to get most people to not care. There can still be dissent, but it would be too limited to have an effect.
That isn't really what happened in Singapore.
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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?
Naive interpretations like this one, of bad faith actions is how we get there.
This same assumption of good faith was wholly present in peoples' responses to project 2025 prior to the election.
They are not acting in good faith.
Try restating the problem: Why is this EO being issued? What problem, other than judicial review, does it solve for the executive branch?
EDIT: For those who do not think this contributes anything: can you answer the question?
> 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.
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> 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.
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> Why is this EO being issued?
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.
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>Naive interpretations like this one, of bad faith actions is how we get there.
Instead of just dismissing things out of hand like this, maybe you could provide a "less naive" interpretation? Your statement is not helpful either.
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“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.
Does any law or executive order say "unless invalidated by a court"? Isn't that kind of a given?
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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.
It's as simple as that.
A court ruling isn't a matter of law - you can say the ruling was issued wrongly, and you may even be right, but you still have to follow it.
If that were the case, then SCOTUS would just invalidate the EO.
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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.
> setting up the president as the sole power center is an inherently unstable system
Only if there is a transition of power. If power stays in the same hands, the system can be very stable - and not in a good way.
> 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.
Look at Venezuela.
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.
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We also don’t have much data on how the calculus changes when AI transcript analysis makes the Stasi’s wet dreams a reality.
> 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.
The things Trump has put in place may long outlive him. Roe v Wade lasted a long time.
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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?
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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?
If it comes to it, the military.
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> what if the majority of the House sides with the president?
In that case, congress is serving as a check on the court's power.
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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.
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The employees of the executive branch are not intended to be a check on the executive branch's powers. They are the agents of the executive.
The legislative and judicial branches are the checks to executive power.
> 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.
It's about 70 million as of the last count in November.
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There is no next legitimately elected president. They are going to disenfranchise us.
Not if we speak the fuck up.
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.
"He didn't really mean it" isn't really playing out so well.
I'm still betting Trump does not survive his natural term.
(and I'm not even implying anything. He's turning 79 this year and clearly not in top mental nor physical health).
'The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch'
That's basically what EOs are already.
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
No. EOs can be overturned by congress. This EO says that they can't - ie: there's no checks or balances on the President
"This EO says that they can't"
Where does it say that? What existing EOs explicitly say congress needs to overturn it?
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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.
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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?
They're trying to leverage the immunity the Supreme Court gave him to extend to people following his orders.
> 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).
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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".
> The disincentives that have always prevented the executive from blatantly violating the law are still in force and unchanged.
We’re just gonna pretend Trump v. United States, 603 U.S. 593 (2024) doesn’t exist, are we?
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.
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If they were able to follow through on this absolute power would California succession be on the cards?
Realistically, not unless the military fractured and there was a coherent alternative government that some of them aligned with.
There is absolutely no standing up to our military if it is actually deployed against you as a regular citizen without equal military backing.
> 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.
Why would the next guy abide if the current guy won’t?
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 still don’t see how this changes anything.
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.
No concept of constitutional supremacy and an end to legal precedent is what you consider to be the norm in USA?
What's your job?
I don't read it like that.
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.
who could have seen this coming
>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.
Difficulty:
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.
A self-coup.
https://en.m.wikipedia.org/wiki/Self-coup
Ultimately, I expect this to be taken to the Supreme Court and reigned in.
Don't be surprised if the administration says something to the effect of "the court has made its ruling; let us see them enforce it."
That, or they're hoping that someone will sue so that SCOTUS makes this sort of EO precedent.
The president is the executive branch.
Lawyer here.
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.
https://www.cato.org/blog/white-house-independent-agencies-m...
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
What are the real power grabs/most insane things happening now in your opinion?
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.
Just read the Wiki for an intro on the details.
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.