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I'm not a Constitutional scholar, and much of this thread goes over my head, but this is one point in particular that I don't understand: how is it possible for the executive, through an executive order, to expand the scope of executive power? Either the executive has the power to declare and enforce whatever this EO declares, in which case he's just practicing power he had by nature of being the executive, or the executive lacks that power, and this EO is just unconstitutional or otherwise invalid, to be struck down by courts or by Congress impeaching him.
I'd always thought EOs were essentially pieces of paper with funny markings on them that the executive likes and his underlings are supposed to pay attention to if they want to please the boss. If the POTUS has the power to bootstrap the executive branch to dominating the other branches of government merely through an executive order, then that seems like a major loophole in the Constitution, which makes me think I'm missing something.
The supreme court could write an opinion that said 'we are kings now'. Now, if that happened, we'd all ignore it, and appoint a new supreme court. But there's something in between that and what they're currently doing that isn't transparently unconstitutional but would simultaneously be concerning if you liked the way the government currently works. Congress could do similar, eg court packing. One might view executive orders in the same way - some are definitely constitutional but still might look like they're heading in a bad direction, others might be unconstitutional by current precedent but who knows what SCOTUS will do, and if SCOTUs rules one way then that would, in practice, expand the power.
Thanks, this explanation in particular makes a lot of sense to me.
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The thing you're missing is that Congress kept delegating rule-making authority to "independent agencies" under the executive, while also creating rules the executive branch had to follow while exercising the delegated authority. The fear from those who are concerned by this move is that Trump will keep the delegated rule-making authority, while ignoring the rules for exercising that delegated authority.
In theory, if Congress wanted to, they could seize power back with unvetoable majorities in the House and Senate, and remove both the delegated authority and the rules for exercising it. But with the split between MAGA and non-MAGA Republicans, and Democrats, that is unlikely to happen. So the end result is a massive power grab for the executive branch because of unwillingness to act on the part of Congress and the Courts.
I see, so the way you're describing it, it seems like it's the chickens coming home to roost. Definitely concerning. I can't say I blame him for doing this, though. It sounds like he just picked up a hundred dollar bill off the floor that all the other POTUSs before him just walked past, out of respect for norms or whatever. I see the OP's point now, though, that he's loading a weapon that his enemies could wield in the future. Perhaps he figures that that long-term downside risk is worth it for the power he'll get to wield in his final 4 years in office (and perhaps his life, given his age). Probably irresponsible for a party leader, but pretty in character for him, by my lights.
No this is all rather nonsensical. First, congress delegates to many agencies including non independent. The grants to both are governed by the same law and cover significant activity. Indeed many of the most relevant are not independent agencies though of course some are.
The only real difference between independent and dependent agencies is whether the president can remove people at the agencies at will. That’s it. There aren’t other special rules that those independent agencies have to abide by that dependent agencies do not. They all must abide by the APA. So if the President smashes independent agencies the only difference is who is making the decision; not the process for decision making.
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Except that clearly the APA would still apply to the president. The believers of the independent executive need to argue what is different about the president having the power and the answer seems to be “there might be more change in regulations”
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If the power was delegated to the executive branch, this is not a power grab for the executive branch. It is perhaps a "power grab" by one part of the executive branch (the President) from another (the independent agencies). The problem with this theory is that the Constitution does not contemplate a part of the executive branch independent of the President.
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The constitution is just a piece of paper (although one that confers quite a bit of legitimacy if you observe the proper forms). Watch rules for rulers or play some Crusader Kings to understand the actual nature of power.
If you have enough loyal warriors, you can do whatever you want. Following democratic norms should be best understood as a method of ritualized warfare-- of both parties gathering and displaying the people under their banners, so that the other party might be intimidated by the size and strength of their army and let them take power without a fight.
I'm familiar with the concepts and metaphor you mention here. Could you outline how that applies to this situation? The Constitution is just a piece of paper, much like Executive Orders by the POTUS are - they only mean things insofar as people behave as if they mean things. The POTUS can ignore the Constitution, and his underlings can ignore the POTUS's EOs, and in either case, they'll face consequences only to the extent that people who have the power to inflict consequences on them choose to exercise this power. Is the contention here that Trump is such a cult of personality that this particular EO wouldn't hold up in court or any Constitutional scrutiny, but Trump's underlings will just follow it anyway? If so, it seems that the danger is in Trump being such a cult of personality, rather than any particular EO he might write.
It's not about having a cult of personality-- it's about being able to reward favored underlings and protect them from retaliation. Basic feudal-contract type stuff. The more power a president has over their bureaucracy, the more loyalty they can engineer their bureaucracy to have.
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Because the executive is not always exercising the full scope of his powers to their fullest extent at all times, and the constitution and laws are not all-encompassing rulesets. If and when the President tries to do something new, we have to figure out whether that's OK or not.
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