Comment by apple4ever
1 year ago
>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?
> 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!"?
Now if Congress passes a law that say "tobacco is banned", the president can say "This law means that tobacco isn't banned and has to be sold in schools, and I will direct my agencies to follow this new law". Before, the president had the option to refuse to enforce the laws as written (and risk getting thrown out on his ass) and now the president has the option to rewrite laws according to his whim and enforce that instead. He also has immunity too so he can't even get into trouble for just doing whatever he wants.
Every citizen in a democracy has a duty to understand, respect, and uphold the law and the constitution. Congress defines what the law is, the judiciary adjudicates disputes on how the law should be interpreted, and the president can only execute that law. But all federal employees have their own duty to understand and uphold the law. The president has no special power to interpret the law: the law is what it is, and perhaps what the courts clarify.
An agency head that is disobeying the law can be fired by the president. An agency head who is not disobeying the law can't be fired (assuming there is no other cause, such as poor management, of course). If there is disagreement on whether the agency head was upholding the law or not, that's not up to the president, it's up to the courts to decide.
Having the president be the ultimate authority on the interpretation of every law and regulation, even within the executive branch, is not only unconstitutional, but also unworkable. A single man can't physically review every single aspect of the American government, they have neither the time nor the mental capacity to be the ultimate authority on every single aspect of the federal government.
So not only is it normal that the president defers to agency heads on the interpretation of the applicable law that they are experts in, it is the only way the system can function. The president has plenty of control over the agency by naming the head, they don't need and can't have more control than that.
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> The EO isn't saying "ignore Constitutional violations".
What if the President says "I interpret [irrefutably unconstitutional action x] to not be in violation of the constitution"? Then anyone in the executive branch has to behave as though that action were constitutional, no matter what it is, don't they?
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> 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 all executive actors must bend for the president’s orders, regardless of previous orders, laws and precedent, then nobody’s views in the executive branch matter, any time the President chooses.
They are now effectively sworn to a particular human, not the Constitution.
The President is now the “Constitution” for the executive branch.
(You might counter with the argument that they are sworn to the President’s Office first, but who actually gets to decide what that means? The human in that role.)
It is madness because a president whose will is unassailable within their own branch is also unassailable across all three branches.
The President has all the levers of practical coercive power.
Neither Congress can put any law into effect, or the Judiciary put any ruling into effect, without the cooperation of the executive branch. Without that, their existence is decorative.
> 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
That is inaccurate. Almost all federal departments and agencies derive their authority from acts of Congress. The President has very limited authority to create and empower agencies.
The strongest argument against the CFPB is that is was not created by an act of Congress. Trump could not create a DOGE so he renamed the USDS. He cannot shut down USAID, but he can mismanage it.
The president is required by law to execute the laws passed by Congress even if he strongly disagrees. The mass firings and funding holds have the legal fig leaf that he is managing them to the best of his ability.
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> 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 a very extreme version of unitary executive theory, which is highly controversial even in its weaker forms.
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Say something like "hey, no, that law is unconstititional!".
What is the purpose of having cabinet secretaries swear an oath to defend the Constitution if the President has the sole authority to decide what this means?
Why do you support Trump being an autocrat?
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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.
They can pass new laws which the current president has stated he will interpret according to his desires, sure.
> unless the dems get 2/3 the senate that will never happen.
If the Dems ever got more than 2/3 of the Senate, then precisely the number of Dems necessary to vote against their party would do so. The party would loudly bemoan the result, and then point out that the defectors had to be DINOs so that they could win their district.
In other words, that will never happen, and was never gonna happen; even if Dems could win a 70% majority without war breaking out over perceived election theft.
Personally, I can't have any faith in a party which armed and supported genocide to defend either democracy or checks and balances. They 'accidentally' dropped the ball many times on this exact issue [0] over the last four years, when heading all this off at the pass would have been far simpler.
0 - https://sarahkendzior.substack.com/p/servants-of-the-mafia-s...
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/...
Executive power is derived from the President.
Congress can design an agency, set it's processes and procedures, and give it money to run.
But the President is in charge of it within those bounds. The President can't decided DOJ doesn't need an Attorney General (Congress already decided that), but the President gets to pick the AG and the AG reports to the President.
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I’m sad that you’re being downvoted. It’s clear that you’re correct. However, HN does tend to take extending the courtesy of assuming good faith to the breaking point, whether we like it or not.
It’s blindingly obvious that they are here merely to gum up discussion in endless loops that go nowhere under the guise of politesse and question marks, as if they’re just confused and asking clarifying questions.
The thing about assuming good faith, which I agree with in principle, is that you have to be willing to accept your own judgment of when someone is arguing in bad faith and disengage.