Comment by refurb
1 year ago
This EO eliminates the concept of an illegal order since the law would be whatever the executive interprets it to be.
How do you come to that to conclusion, especially in the context of the EO?
This EO doesn't change the Constitution's requirement that the President "take Care that the Laws be faithfully executed".
I'm not a lawyer but I would interpret this EO to say "it is the job of the President to execute the laws passed by Congress" and "the President may employ subordinates in that execution", however "these subordinates must still execute based on the President's interpretation, not their own".
The EO has a long section on "independent agencies which operate without Presidential supervision". This is what the EO clarifies.
> This EO eliminates the concept of an illegal order since the law would be whatever the executive interprets it to be.
This isn't true at all. This EO doesn't change the fact that President is held accountable by the judicial branch for following the law.
> "these subordinates must still execute based on the President's interpretation, not their own".
Yes, this is a problem, because it would mean that if the President (for simplicity, the order also specified the AG, but it doesn't really change the issue) had an opinion on the law, and the courts issued an order to an executive officer such as a department head in a lawsuit contrary to that interpretation, the department head would remain bound by the Presidential interpretation until the President relented, since the meaning and effect of a court order is no less a matter of interpreting the law than the meaning and effect of a regulation, statute, or Constitutional provision.
Sec. 7 is so ridiculous on its face that, while I am sure the Administration seriously does want to impose as much of this control as it can get away with, I think it was largely included as a lightning rod to distract from the rest of the order moving control of all independent agencies internal spending allocations into OMB and the Executive Office of the President and otherwise purporting to transfer effective control of the functions assigned by law to the independent agencies to be exercised by their boards into the White House.
> the department head would remain bound by the Presidential interpretation until the President relented
I don't know what you mean by "bound"?
The President, EOs and the exective branch are not immune from court decisions.
If a court rules again an EO, the President would need to abide by that court decision. As per this EO, the department head would do what the President wanted (align to the court order), and would thus be in compliance with the court order.
In the case the President decides to ignore the court order, the department head has an option - do what the President says or do what the court says. If they decided to do what the President says they would also be in violation of the court order. If they did what the court said, they would likely be fired.
It's not like this EO really changes the situation? Before this EO a department head would have the same choices and face the same risk of being fired.
> Sec. 7 is so ridiculous on its face that, while I am sure the Administration seriously does want to impose as much of this control as it can get away with
I'm not sure what you mean? Why is it ridiculous that an agency which derives it's authority from the executive be able to ignore the head of the executive's interpretation of the law? Who would they be accountable to if not the US President? Nobody?
There are no "independent agencies" under the US Constitution. All agencies exist under the purview of the President. What Section 7 says is "no executive agency employee may make an independent interpretation of a law outside that determined by the head of the executive".
This is entirely aligned with prior US Supreme Court decisions that the US President has sole authority over the Executive Branch.
I'm not sure we'd want to have an unelected executive agencies that is unaccountable to head of the executive branch. That just wouldn't even make sense.
The constitutional argument is ridiculous; we've really been frog boiled into a wildly different understanding of executive power than even the most monarchical Founders imagined. Article II sections 2 and 3 are short and grant almost no powers. Practically all executive power outside stuff like appointments and pardons derives from this clause: "he shall take Care that the Laws be faithfully executed". Nearly all governmental power resides in Congress, on purpose, as it's the most democratically responsive yet least efficient of the branches. For example, a lot of people probably think either Commerce or Treasury mint coins. Nope, constitution says that's Congress. People think State, or maybe Commerce negotiates trade treaties; nope Congress again. Post Office? Congress.
What this means is that the President executes Congress' will. Reading the Constitution, there's just no argument for anything else. You have to dig into subsequent history, acts of Congress, and Supreme Court decisions to reach the justifications for the wild increase of presidential power. I'm not saying this is bad per se, just that the Constitution argument is absolutely bankrupt and ahistorical: there was zero appetite for a powerful executive in the Continental Congress.
That's what's so radical about this EO: it's antithetical to the very founding of the US where we rebelled against a king and ultimately adopted a constitution with a very weak executive. It supplants the will of Congress with the will of the executive, undermining the separation of powers, plenary powers, and the very underpinnings of our government.
> It's not like this EO really changes the situation? Before this EO a department head would have the same choices and face the same risk of being fired.
No, this is completely false. The President doesn't have the authority to fire a department head for following a court order, and if they tried they would get sued and clearly lose, and be forced to reinstate the fired person, and other employees would follow this pattern.
With this EO, the President does get this exact authority, and the courts would be forced to side with the president in the matter of the firing, if the EO is allowed to stand by the SC.
> Who would they be accountable to if not the US President?
Accountability does not require absolute control. A subordinate official can be permitted (even mandated) to exercise independent judgement and still be accountable for mis-, mal-, and nonfeasance to a higher authority.
And this has, with different precise parameters, long been the statutory model governing the President’s relations with much of the executive branch, with different specific rules applicable to civil service employees generally, Inspectors-General and a few other specially-designated employees in regular departments, and independent agencies.
> I'm not sure we'd want to have an unelected executive agencies that is unaccountable to head of the executive branch. That just wouldn't even make sense.
Independent agencies, that execute their mission rather than the whims of one man (and are accountable to the law) don't make sense to you?
15 replies →
> The President, EOs and the exective branch are not immune from court decisions.
Sure they are, if they want to be. Federal courts don't have their own enforcement arm. Even if they find specific officials in contempt of court, and order them arrested, Trump can simply order the US Marshals service to just... not arrest them.
2 replies →
> Yes, this is a problem, because it would mean that if the President (for simplicity, the order also specified the AG, but it doesn't really change the issue) had an opinion on the law, and the courts issued an order to an executive officer such as a department head in a lawsuit contrary to that interpretation, the department head would remain bound by the Presidential interpretation until the President relented, since the meaning and effect of a court order is no less a matter of interpreting the law than the meaning and effect of a regulation, statute, or Constitutional provision.
I don't think that's true? Court orders are orders, not laws, and the two are very different.
But who will enforce a court order if the executive branch decided to ignore it?
9 replies →
> 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.