Comment by hiatus
1 year ago
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.
> ...heads determining interpretations of law contrary to what the head of the executive desires.
Is the head of the executive an expert in all things? And capable of communicating those expert desires with perfect clarity?
Why have courts if the executive head can sort out all legal nuance themselves?
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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?
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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.
> 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.
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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.
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."
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That answer can be found in the question they asked. Care to take a crack at it?
“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?
“John Marshall has made his decision, now let him enforce it.”
They are openly contesting the authority of the courts in various statements.
https://www.bbc.com/news/articles/c4gx3j5k63xo.amp
> 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.
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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.
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Pre-2016, you’d be correct
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.
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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.
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.
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And the President’s order compels them to ignore that contradictory opinion.
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You keep arguing the same point in this thread. So let’s make it simple.
If Congress or the SCOTUS says do A and the President says do B then the Executive Branch are required to do B.
That’s an unprecedented situation.
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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.