Precedent holds that Congress has the power to establish executive branch agencies and lay out their jurisdiction and functions. It also holds that, once so established, the president has the power to decide how they’re operated. There’s a constitutional distinction between this power to create/define (legislative) and the power to run (executive).
The article doesn’t seem to be about abolishing the NIH and NSF. Instead it seems to be about NIH and NSF grants to third parties. That seems to fall squarely on the executive side of the line.
> once so established, the president has the power to decide how they’re operated.
This is the third time I've seen someone pushing this line of thinking on HN in as many days and I'd like to know more about where it's coming from. Can you cite any source that supports it and justifies it?
FWIW, the conventional wisdom is that the independent agencies really are independent, and the president's control over them is exactly what is stipulated in the legislation that created them. If the statute of the Dept of XYZ and says the president can fire its governing board but only on weekends, then he has to wait til Saturday, period end of story. The idea that the president can interfere with the independent agencies because they're part of the executive branch was, AFAICT, invented out of whole cloth in the last couple of years, and has no constitutional support at all. So I'm curious to hear more about what this new theory is and how far it extends. In particular, if the president can decide to cancel NIH grants because the NIH is under the executive branch, what keeps him from raising and lowering interest rates?
edit to add: to be clear, the president does have a great deal of power over most of the independent agencies; in most cases he hires and fires their leaders. But he has that power because Congress specifically granted it, not because the executive branch is his personal fiefdom. If he wants to, say, get a pharmaceutical drug approved, he has to direct HHS to direct the FDA to do that in the usual way, not just decree it. This has little to do with thwarting his power and lots to do with effective and efficient governance.
You're hearing the "unitary executive" theory, which posits that the president is essentially a king. It's based on a purposeful misreading of the Constitution, of course. To arrive at this philosophy, you have to essentially ignore the entire point of the Revolutionary War, the writings of the founding fathers, the Declaration of Independence, the Civil War, Article I, Article III, Article IV, the Bill of Rights, and the president's oath of office.
There really is no limit to the power, but they say the check is impeachment -- if the people don't like it they can elect a congress that will impeach the president. But in reality it doesn't work that way when the president's party controls congress.
It's not a "theory," it's simply reading Section 1 of Articles I, II, and III at a 6th grade reading level.
Article I says: "All legislative powers herein granted shall be vested in a Congress of the United States." May Congressional staff exercise legislative powers independently of the Congressmen? Nobody thinks that.
Article III says: "The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish." May judiciary branch staff exercise judicial powers independently of Supreme Court Justices and lower-court judges? Nobody thinks that.
Article I says: "The executive Power shall be vested in a President of the United States of America." May executive branch staff exercise executive powers independently of the President? My sixth grader could understand that the answer is "no."
There is nothing in here about the president being a "king." It's simply that the President controls the executive branch, in the same way the Congressmen control the legislative branch and the Supreme Court justices control the judicial branch.
See, that's what I mean about ignoring all of American history to come to your unitary executive theory.
The Constitution establishes control and checks on that control. "checks and balances". Unitary executive theory is all control, no checks. How does Congress conduct oversight of the executive branch in this scenario?
And you're also trying to do the same thing to me right here. To accept that unitary executive theory isn't about being a king, I'd have to ignore everything the advocates of the theory have said and done. He argued in court that he has absolute immunity to commit crimes, including directing the government to kill his political opponents. You can't argue that in court and then tell me it's not about being a king. That's dictator logic.
Look at the executive right now, he's essentially got the power of a king. He can't be arrested, charged, or investigated. Can commit crimes and hide them. Can direct others to commit crimes and pardon them. Can direct his DOJ to investigate and prosecute anyone he wants. Can control and direct his military without review. Congress can't conduct oversight. Can you explain how the president is now functionally different from a king, and square that with the point of the Revolutionary War?
> This is the third time I've seen someone pushing this line of thinking on HN in as many days and I'd like to know more about where it's coming from. Can you cite any source that supports it and justifies it?
It's Civics 101. You should have learned it in 8th grade. Congress makes the laws. The President executes the laws. It's also right there in Article II, Section 1 of the Constitution: https://constitution.congress.gov/constitution/article-2/ ("The executive Power shall be vested in a President of the United States of America.").
If an independent agency is exercising "The executive Power," then it does so derivatively of the President. Article II doesn't say that "the executive branch" shall execute the law. It says: "he"--the President--"shall take Care that the Laws be faithfully executed."
Note also the parallel structure with Article I ("All legislative Powers herein granted shall be vested in a Congress of the United States") and Article III ("The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish").
The President is the executive branch, in the same way Congress is the legislative branch, and the Supreme Court and the lower courts are the judicial branch. All of these branches have various offices and subdivisions, but they are within the control of one of those three constitutional actors.
Congress cannot create an entity that exercises executive powers but does not answer to the President any more than the President can create an entity that exercises legislative powers but does not answer to Congress.
> FWIW, the conventional wisdom is that the independent agencies really are independent, and the president's control over them is exactly what is stipulated in the legislation that created them.
That has not been the "conventional wisdom" for anyone who went to law school in several decades. The notion of an "independent agency" exercising executive power independently of the President was an absurd idea cooked up by a racist in the early 20th century who hated democracy and had fantasies of "scientific government" (https://fedsoc.org/commentary/fedsoc-blog/woodrow-wilson-s-c...). It peaked in the mid 20th century, but the project of whittling it back to constitutionality has been ongoing my entire lifetime.
> If the statute of the Dept of XYZ and says the president can fire its governing board but only on weekends, then he has to wait til Saturday, period end of story.
The Supreme Court held in 1926 that the President's removal power over executive-branch officials is essentially unconstrained (Myers v. United States). The Court then reversed itself in 1935 (Humphrey's Executor v. United States) but that case has since been limited pretty much to its facts (Seila Law LLC v. CFPB).
Thanks for responding at length, though your derisive tone isn't winning you any converts. Is it your position then that the president can legally wield any power described in any legislation? If not, what can't he do? Can he, for example, raise and lower interest rates over the objection of the Fed? Approve an IPO that the SEC rejected? Lend money to his supporters through the SBA and deny loan applications from his adversaries? Refuse to deliver Hunter Biden's mail? If not, why not? I'm not trying to play gotcha here, but it seems like your position is that he can do these things.
"The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this Court. Wilcox v. Jackson, 13 Peters 498, 38 U. S. 513; United States v. Eliason, 16 Peters 291, 302; Williams v. United States, 1 How. 290, 42 U. S. 297; Cunningham v. Neagle, 135 U. S. 1, 135 U. S. 63; Russell Co. v. United States, 261 U. S. 514, 261 U. S. 523. As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that, as part of his executive power, he should select those who were to act for him under his direction in the execution of the laws."
The Constitution, of course, imposes limits on executive power, and statutes create private rights and obligations and provide procedures and substantive standards. But if the executive power otherwise may be exercised, Congress cannot constitutionally insulate the exercise of that power from the President's influence. Put differently, the procedural framework of a law can't merely be there to insulate the exercise of executive power from the President's influence.
To address your examples:
> Can he, for example, raise and lower interest rates over the objection of the Fed?
Probably.
> Approve an IPO that the SEC rejected?
It depends. The securities laws regulate private conduct--that's important--and impose various standards and procedures. So the president can't alter private rights without following those procedures and standards. But can the president supervise and direct how the SEC does it's job? Yes. The Arthrex case is relevant here: https://www.supremecourt.gov/opinions/20pdf/19-1434_ancf.pdf.
> Lend money to his supporters through the SBA and deny loan applications from his adversaries? Refuse to deliver Hunter Biden's mail?
No to both, because nobody at SBA or USPS could permissibly do those things.
> No to both, because nobody at SBA or USPS could permissibly do those things.
I don't see why. A specific person at the SBA is empowered to approve or deny the loan, and that person works for someone who works for someone who works for the president, right? I assume we both agree that Trump could likely get the loan approved indirectly, by ordering the SBA administrator to get it done and replacing him if he refuses. What's the difference between that, and Trump accomplishing the same thing faster via executive order, "As president I have reviewed this loan and all relevant regulations and determine that it is approved"?
For me and (despite what you say) conventional wisdom, the difference is that the SBA is empowered by statute to loan money and the president isn't. Under your interpretation, I don't think there is a difference and he really could do that. What would stop him? At least in the case of the SEC, someone might plausibly argue that he had broken a law, but I believe the criteria the SBA uses to approve loans are departmental regulations, which by your reasoning ought to be subject to the same presidential whims.
edit- I just realized that I used firing earlier as an example - "If the statute of the Dept of XYZ and says the president can fire its governing board but only on weekends, then he has to wait til Saturday" - which is probably why you brought up Myers. I don't really disagree with Myers (or Seila for that matter), but I also don't think it's very relevant to the larger question of whether creating an agency to do X is tantamount to empowering the president to personally do X.
The SBA stature provides for various procedures for underwriting the loans. The executive must follow those procedures, because they relate to the substantive operation of the program and determination of private rights. So it can’t just be done by EO. But could Trump actually sit down and do all the work and make the loan? I don’t see any reason why not.
Myers happened to be about removal, but it articulated a broader principle:
> As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that, as part of his executive power, he should select those who were to act for him under his direction in the execution of the laws.
It would seem to follow that the executive’s power to run has limits itself. If the legislative has the power to create an entity and the executive runs that entity at such minimal function that the entity effectively doesn’t exist, that usurps the legislative of their creation powers. You could tarpit any agency they establish. The power to run still means you must run the agency in good faith.
I don't disagree with that. But what's discussed in the article--exercising control over grants--is squarely within the domain of running, rather than abolishing.
The article doesn’t seem to be about abolishing the NIH and NSF. Instead it seems to be about NIH and NSF grants to third parties. That seems to fall squarely on the executive side of the line.