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PaperclipPerfector  5d ago (text post)   26344 thread views

Culture War Roundup for the week of February 17, 2025

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The most recent executive order is little c conservative regarding the law, in that it takes Loper Bright a step further in curtailing unelected legislating by bureaucrats.

It does not put the executive over the legislative or judicial branch, despite fear mongering. Instead, it puts the White House/AG over "independent" agencies. All regulations must be reviewed by the White House/AG's office, and agencies must defer to their interpretation of vague laws.

The judicial branch still has the ability to overturn those interpretations (they actually have more power to overturn those interpretations after the death of Chevron).

The legislative branch can avoid the issue by making more specific laws. This will never happen, because Congress has been fine with passing the buck to the executive branch to avoid reelection fights for a long time now. The legislative branch can also move certain agencies (or agency functions) into the legislative branch. Congress can make ALJs specialty Article III courts, to increase their independence from the President. Congress can move regulation-making functions underneath relevant subcommittees in the legislature, but that would increase their workload in reviewing what agencies are up to. Congress has delegated a lot of power to the executive, and the most recent EO is an example of how that can go sideways. If they didn't want the executive to have the power to interpret vague laws, they should've made less vague laws. The three branches were always supposed to be at war with each other, not casually handing over powers such as the tariff power.

It doesn't really impact what a Democratic president would or would not do - it's logical to think that Democrats, who are a fan of letting "experts" use their expertise, will return decision-making to independent agencies instead of wading through regulations at the Presidential level.

But the hyperbole around all of this is... Weird. If things are so bad, why do people/legacy media feel the need to exaggerate the impact? Idk. The language part of the culture war has always gotten to me.

Congress set up the federal bureacracy with an intended balance of power. This is important because, fundamentally, congress is just 435 dudes. They have no magical power to oppose the president-- only the practical power of what they can threaten him with if he won't comply with their demands. Removing the independence of independent agencies removes one of the things they can threaten the president with, making it permanently easier for the president to flout the law. It doesn't matter how precisely a law is defined, or what congress does in their subcommittees. If the president has the actual raw power to do whatever they want, it's trivial for them to say, “John Marshall has made his decision; now let him enforce it.”

fundamentally, congress is just 435 dudes.

https://www.theatlantic.com/ideas/archive/2020/05/congress-needs-be-way-way-bigger/611068/

EDIT: sorry. I posted this because I thought it was a pretty good article about why congress is too small and how we might imagine a much, much larger congress. Every time I see "435" now I snort in derision. The number is too low to be representative and too high to be functional. Representatives should be regular shlubs from around the block not life-time politicians. It should move fast--voting with a phone app or something--none of this mugging for the camera and grandstanding. Anyway, thought you might enjoy the read. didn't mean to drive-by post.

I've read this article before and agree with it.

Congress set up the federal bureacracy with an intended balance of power. This is important because, fundamentally, congress is just 435 dudes. They have no magical power to oppose the president-- only the practical power of what they can threaten him with if he won't comply with their demands.

Congress can say to the president "you are no longer president, we have impeached you". That is not just a threat, that is a very real power. They can also overrule his veto.

What does it mean to have balance of power? The president is supposed to be the boss. Congress is to be the purse. If congress sets up a system such that:

  • the president can't fire or discipline his own subordinates
  • the president can't direct his own subordinates to do things that he is allowed to do
  • the president has to do exactly what congress tells him to do with agencies

that to me seems that congress has a lot of power and the president does not have much power. Which is a balance of power, but not a very balanced balance of power.

Congress can say to the president "you are no longer president, we have impeached you"

That requires 60% of the senate. In the modern political context that's just not going to happen. That gives a president effectively total latitude for at least 4 years, even if midterms cut down their majority to 41%.

I do think the democrats are extremely lucky that trump is so old and already on his second term. That reduces his incentives to rig the election for a successor, and means the democrats still have a chance of controlling the first (and last) post-trump president.

removal through impeachment requires 2/3rds of senators present to vote for removal which for all practical purposes means it requires 67 senators in the modern context

famously, the 36th senator refused to vote yes on each of the articles of impeachment to remove President Johnson ending each round of voting 35-19 which was 64.8% of the Senate

That reduces his incentives to rig the election for a successor

Each state runs its own elections.

Before I say anything else, what was your opinion on the election fraud allegations between 2020 and election day?

They were correct in two ways:

  1. There is likely large scale election fraud in most elections;
  2. Covid "reforms" made said fraud easier, and also created large swathes of illegal, but not necessarily fraudulent, votes that were counted anyways.

Then if you believe in election fraud anyways there's no point making the defense of "each state runs their own elections." In fact, you should probably accept that all elections are totally rigged, and take the sequence of events from 2016-2024 as evidence that the deep state was secretly on your side as part of a long-term plan to get trump in office.

Just because there is fraud, it doesn't mean they can produce enough to always win. Evidence from the Chicago indictments shows a metro can falsify about 5-10% of its votes reliably without detection from outsiders.

Congress not wanting to use its magical powers does not mean that congress does not have magical powers. It has these magical powers regardless of the political context. At any time it could use these magical powers, for any reason it chooses to.

Do you see any dissonance with your two positions? I do.

It would be reasonable to complain about bureacrats having to much power relative to politicians... except for the fact that the politicians have held all the power the entire time, except distributed in such a way that they refused to use it.

That requires 60% of the senate. In the modern political context that's just not going to happen. That gives a president effectively total latitude for at least 4 years, even if midterms cut down their majority to 41%.

In the first you argue that power distribution is inconsequential to a body actually having that power. In the second you argue that power distribution is consequential, consequential to the point of negation, of a body having power. Which is it?

Previously, a congressional party with 51% majorities in the senate and house could refuse to confirm presidential appointments, and therefore limit the ability of the president to interfere with independent agencies. Previously, a president faced the threat of legal action after their term if they violated the law.

These were powers that congress and the judicial system had-- even if they rarely chose to exercise them.

Now, presidents can do what they want w.r.t independent agencies, and to interfere congress needs a 51% majority in the house and a 60% majority in the senate to impeach and remove. Now, presidents have permanent immunity against prosecution.

Conrgess has lost a portion of its power over the president, dramatically and permanently.

Conrgess has lost a portion of its power over the president, dramatically and permanently.

They have lost power over the president. But none of that has to do with Trump, Trump's most recent EO, and it is not either dramatic or permanent. Congress can always repeal a law and remove an agency from existence if they don't like how the President is managing the agency. The reason Congress has lost some of its power is that they did so intentionally by creating rulemaking agencies within the executive branch, which was a delegation of Congressional power to make laws. That they tried having some sort of end around this reality by falsely labeling some of them "independent" didn't actually make them so.

Independent wasn’t about trying to get around non delegation; it was a silly progressive idea of making it non political.

The legislative power is vested in congress. Congress cannot delegate that authority even if the court doesn’t want to go that far (eg congress can’t say “Zeke now gets to write all of the laws”. Independence is largely orthogonal to non delegation concerns.

Previously, a congressional party with 51% majorities in the senate and house could refuse to confirm presidential appointments, and therefore limit the ability of the president to interfere with independent agencies.

Congress still has the power to refuse confirmation with 51% majorities. They still have that ability, in that specific context you yourself have denoted, to limit the president from interfering with independent agencies.

Previously, a president faced the threat of legal action after their term if they violated the law.

The president still faces the threat of legal action after their term if they violated the law. Quoting Trump v. United States:

Held: Under our constitutional structure of separated powers, the nature of Presidential power entitles a former President to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority. And he is entitled to at least presumptive immunity from prosecution for all his official acts. There is no immunity for unofficial acts. Pp. 5–43.

Now, presidents can do what they want w.r.t independent agencies, and to interfere congress needs a 51% majority in the house and a 60% majority in the senate to impeach and remove. Now, presidents have permanent immunity against prosecution.

No, this is not true. Congress still controls the purse. Congress can still interfere by cutting funding to the executive branch, and it only needs 51% in both houses. And per above, congress can still interfere by not approving appointments.

The senate needs 2/3rds to remove, not 60%.

No the president does not have permanent immunity against prosecution, see above.

Conrgess has lost a portion of its power over the president, dramatically and permanently.

I do agree that congress has lost some power. I don't think its as drastic as you think it is. I think they have a good change of clawing a lot of that power back by writing bills better. Right now it seems that all congressional funding is passed in omnibus bills, that are very general. They say things like "USAID is an agency that does X, its under control of the president" and "fund USAID with $X money". They give a lot of leeway. If they write the bills with less leeway, then I think they can claw a lot of that power back. Something more like "fund 100 positions to do XYZ at USAID". But we will see.

Congress still has the power to refuse confirmation with 51% majorities.

Nah, "interim" appointments just last forever now.

The president still faces the threat of legal action after their term if they violated the law.

Everything is an official act if the president wants it to be. Everything else gets done by underlings and receives pardons. The idea that presidents were liable to state law provided a check on that-- but now it's gone. I won't pretend like republicans are fully to blame for that-- I'm not a fan of biden's blanket pardons. But this is one more, massive, crack in the dam.

Everything is an official act if the president wants it to be. Everything else gets done by underlings and receives pardons.

This is not true, reference the SCOTUS case above.

Also nothing about pardon power has changed from Trump, the president could always pardon people. The only change to pardon was arguably Biden giving blanket pardons for future acts.

No. This is ahistoric and not how agencies acted.

Independent agencies were set up to be free of political oversight because the FDR progressives believed in rule by expert. Note that this isn’t a check on the political power under how separation of powers is thought of (where competing branches can check the excess of the other branch), but instead a power base with very little accountability (ie no one to check it).

By eliminating the independent nature of these bureaucrats, we are actually returning power to the three separate branches horizontally and the two separate powers vertically. So instead of limiting separation of powers this actually strengthens it.

Congress set up the federal bureacracy with an intended balance of power.

Where was it said that the balance of power was intended to be at heavily ideologically progressive skew of the pre-Trump level? Why should anyone care after all the abuses of the executive from FDR to Obama?

Where was it said that the balance of power was intended to be at heavily ideologically progressive skew of the pre-Trump level?

Congress said it, right now, by not passing a law to do it themselves. I wouldn't exactly be happy about congress passing a law to reduce the independence of independent agencies, but it would at least be government operating in its proper course. Alternatively, the president filing suit to get the legal framework of independent agencies before the supreme court would still be respecting constitutional norms in a way that at the very least can't be symmetrically copied by a later democratic president (since republicans are likely to control the supreme court for the rest of my life, barring court-packing.)

Doing this with an executive order is a naked grab for power from both the courts and congress, with no recourse for either.

Why should anyone care after all the abuses of the executive from FDR to Obama?

Two wrongs doesn't make a right, buddy. Especially when this latest wrong enables dramatically more impactful wrongs in later presidents.

Doing this with an executive order is a naked grab for power from both the courts and congress, with no recourse for either.

Not so, executive orders are themselves reviewable by the Supreme Court.

"John Marshall has made his decision; now let him enforce it!"

And this cuts both ways, as Bruen and Heller have demonstrated.

You replied to a filtered post.

thanks, filter's cleared.

Two wrongs doesn't make a right, buddy.

Actually they do; tit-for-tat-with-forgiveness is a pretty great strategy for incentivizing everyone to behave.

Morality is not subject to game theory. "Two wrongs don't make a right" is a moral judgement, not a statement of what will be effective.

One would think it's been more than 400 years since political philosophy moved on from naive idealism.

Ineffective principles are not moral in any useful sense. Not as applied to politics anyways. Even Natural Law is a form of instrumentalism at the end of the day.

Congress said it, right now, by not passing a law to do it themselves.

Where is it said that only Congress can do it, and only by passing a law?

Two wrongs doesn't make a right, buddy.

If literally no one who is bothered by this voiced their protest about the past abuses, how am I supposed to believe they consider it to be two wrongs?

Especially when this latest wrong enables dramatically more impactful wrongs in later presidents.

That doesn't make it different from past abuses.

Where is it said that only Congress can do it, and only by passing a law?

In the part where the constitution gives the branches particular enumerated powers and "the power to regulate" isn't assigned to the president.

If literally no one who is bothered by this voiced their protest about the past abuses, how am I supposed to believe they consider it to be two wrongs?

This is a bullshit argument and you know it. People complain incessantly about the abuses of their own side-- particuarly with the technocrat and left-populist factions of the democrats having been at odds since 2016.

That doesn't make it different from past abuses.

There's a difference between killing one person and killing ten people, even if they're both murder. I'm still struggling to understand why you think the best remedy to presidential abuses of power is to cheer them on when they abrogate to themselves even more powers to abuse.

In the part where the constitution gives the branches particular enumerated powers and "the power to regulate" isn't assigned to the president.

So this all rests on the Constitution not giving specific powers to a particular branch of the federal government? Do you have any idea how many ships have sailed from that port?

This is a bullshit argument and you know it. People complain incessantly about the abuses of their own side-- particuarly with the technocrat and left-populist factions of the democrats having been at odds since 2016.

No, I don't know it. First, unless by "populist left" you mean people like Glenn Greenwald, this doesn't even seem all that true to me, and secondly, we're not just talking about what the left would consider abuse in the context of an intra-left battle, we're talking about things not allowed by the constitution.

There's a difference between killing one person and killing ten people, even if they're both murder.

I'm yet to hear the argument for why what's happening now is comparable to the guy killing ten people rather than one.

I'm still struggling to understand why you think the best remedy to presidential abuses of power is to cheer them on when they abrogate to themselves even more powers to abuse.

For the same reason I wouldn't feel bad about flirting with a colleague, after I found my wife cheated on me.

Okay you say the president doesn’t have the power to regulate. Can you show me where in the constitution the SEC has the power to regulate? What branch of the government? Who delegated those powers and are those powers delegable?

Congress delegating the power to regulate under specific constrained conditions (that the regulation take place in an independent agency) does not mean the president irrevocably has total power to write regulation.

Or, well, I guess now it does. Let's see how sanguine you are about all this the next time a non-republican president is in office.

Or, well, I guess now it does. Let's see how sanguine you are about all this the next time a non-republican president is in office.

It will be the same as ever under non-Republican presidents: Full compliance with the whims of the Democrat. The only change is that, potentially, some whims of the Republican president might get followed now.

You fire off a lot of responses but aren’t reading what I wrote.

You said the president cannot make regulations. That would be a curious claim constitutional but let’s put that to the side because that isn’t what I asked.

I asked “where is the constitutional scheme whereby an independent agency can write regulations.” It doesn’t really exist. So before you complain about the president having illegitimate constitutional power (without making the argument) why not argue why independent agencies have that right.

And I’ve been very anti administrative state for years and years. It wasn’t just a happenstance of “oh Trump is doing something yeah.” So get that bullshit out of here.

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but that would increase their workload in reviewing what agencies are up to.

One of the many reasons we should expand the House.

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