> What problem, other than judicial review, does it solve for the executive branch?
It’s fairly obvious on its face the concern of the EO is not judicial review but about agencies that nominally are past of the branch the President heads determining interpretations of law contrary to what the head of the executive desires.
And, it does genuinely seem weird to have an executive branch where the head of that branch doesn’t actually control things.
The negative reaction is entirely because of the current executive head, but no one would bat an eye if this were Barack Obama reigning in some executive agency interpreting, say, immigration law in opposition to DACA.
> Is the head of the executive an expert in all things? And capable of communicating those expert desires with perfect clarity?
It's not their job to be the expert, it's their job to be the decisionmaker. That's why you have a head. If two federal agencies want to interpret the law differently, it's more important to pick one interpretation and apply it consistently than to get it perfectly right.
> Why have courts if the executive head can sort out all legal nuance themselves?
Checks and balances are important but so is the ability to actually do things occasionally. Independence for the court system is good. Independence for every individual federal agency isn't.
Sure, but an executive basically just implements the laws, not decide what they are. Given the US system this is important, as it's quite possible for the President not to have a majority in the legislature.
So you are saying that we are meant to believe the problem is that people (who exactly?) were formulating and acting on their own interpretations of the law, independent of either the executive or judiciary branches of government? Hmm. If the problem is so immediate it requires an EO, there must be some salient examples you can point me to.
I would react the same way to anyone who had announced we would never need to vote again, who had previously pardoned felons convicted in an attempted coup, and who was now centralizing governmental oversight and power. There is no comparison to another president in the last 150 years or more.
> And, it does genuinely seem weird to have an executive branch where the head of that branch doesn’t actually control things.
It's not weird at all, and it's not true that the head of the executive doesn't have control over those agencies. The head of the executive names their leadership - that is a huge amount of control. And it is enough control - the government isn't some top-down system serving at the pleasure of the president. It is a system for implementing the rules set out by Congress and the courts (subject to the President's judicial review powers), that the president coordinates.
The very title of "president" was chosen by the founding fathers to evoke the largely bureaucratic role they had in mind. It's not supposed to be a position of prestige or control like a dictator or ruler, it's similar to the role of a committee president: someone who oversees the functioning of the committee, and steer the general agenda, but who doesn't otherwise get to decide for the committee.
> no one would bat an eye if this were Barack Obama reigning in some executive agency
Obviously a counterfactual we can never truly know but I'd remind you that the right were offended when Obama wore a tan suit and was using Dijon mustard. I'm pretty sure they'd "bat an eye" if he were attempting even 1% of the shenanigans that Trump is pulling.
> Why is this EO being issued? What problem, other than judicial review, does it solve for the executive branch?
It is saying that for all matters where a law is not explicit and prescriptive, the WH shall provide the interpretation for the agency to follow.
The WH is correct that (aside from judicial review, which is not at issue here) they have final authority over how to implement open-ended laws, and not the agencies that function under the WH.
What about the constitutional directive that the President shall ensure that the laws are faithfully executed? Congress has prescribed how agencies may issue regulations and interpretations through statutes shouldn’t these statutes control?
Article II Section 1. The executive Power shall be vested in a President of the United States of America
It doesn't say "some of the executive power", nor does Article I mention anything about being able to create new executive powers vested in other entities. So if the president is the only one who has been vested with the executive power, how can a functionary of the executive promulgate a regulation that disagrees with the president? Ultimately the House can impeach and the Senate convict, possibly disqualifying them from federal office.
Right, but what is “executive power”? It is the power to put laws into effect—to execute them. And Congress writes those laws. Article 2 Section 1 does not confer power beyond what the laws provide.
And “vested” does not mean exclusive. Many U.S. laws grant executive power, including the power to promulgate regulations, to persons in the executive branch other than the president. For example, the Communications Act of 1934 creates the FCC and gives the commission the power to “perform any and all acts, make such rules and regulations, and issue such orders, not inconsistent with this chapter, as may be necessary in the execution of its functions.”[1]
There is no authority in the statute for the President to override these determinations made by the Commission.
The enumerated powers in article 2 along with the implied powers that are necessary to carry out the constitutional responsibilities of the president make up the executive power.
> Article 2 Section 1 does not confer power beyond what the laws provide.
It does not confer power beyond what is enumerated and implied within article 2 which vests those powers into a single president. Laws are subordinate to the constitution and have no way of limiting, modifying, or expanding it unless the amendment process is used.
> And “vested” does not mean exclusive.
Can there be two commander in chiefs?
> Many U.S. laws grant executive power, including the power to promulgate regulations, to persons in the executive branch other than the president.
How are they granting executive power? I see nothing in article 1 to suggest they have such a power. Congress was given explicit powers to create lower courts though, "To constitute Tribunals inferior to the Supreme Court". It seems odd that the framers would forget to mention that congress can also vest executive power into entities of their own creation.
> There is no authority in the statute for the President to override these determinations made by the Commission.
So according to you argument congress can create an enabling act wherein they vest all executive power into the newly created agency head and require the president to nominate a specific person by a specific date and the president would be obliged to execute that law?
It explains itself in Section 1; pretty much all the above the fold material is on exactly that topic. Trump & friends are taking the interpretation that the US presidential election is a vote on how the executive government is to be run.
As an extension of that, they're pulling power away from the unelected bureaucracy back towards the office of president - because a vote can't change the direction of the executive if parts of it are on autopilot independently of the president.
> What problem, other than judicial review, does it solve for the executive branch?
It doesn't change anything about judicial review. The thing they're targeting is parts of the executive acting independently of the president; which given the behaviour of the intelligence services is probably targeted at them but might be aimed at any of the bureaucrats.
Whether it is a good idea long term is a complex question though. This looks like an area where the separation of powers gets to murky territory. It is hard to have separation of powers given how much of it has been given to the president over the last century - the small-government strategy was a better approach than what the US has set up here.
> because a vote can't change the direction of the executive if parts of it are on autopilot independently of the president.
That's only mildly true, and the belief of micromanagers everywhere. Ultimately, you need to set an overall direction and then let people execute within that framework, or you're going to get something that's badly run and slow as molasses.
With a nuanced interpretation, this EO even might make some amount of sense (a bit more overview/stricter guidelines). But wherever you stand politically, you can't accuse the current administration to have a sense of nuance.
And, of course, if you want to assume the worst, it's fair to point out that the EO removes all independence without having to spell out any guidelines, which means a world without guidelines and on-a-whim decisions is well possible. That's not a good thing for a regulatory environment. Or a democracy.
And that's the biggest problem - because even if the current administration has only noble goals (and I really don't want to debate this either way, let's skip that comment stream), this XO is massively ripe for abuse for people with non-noble intentions.
I think this is a really good explanation of the underlying problem.
The example that is top of mind to me, because it hits pretty close to home, is stuff like the Environmental Protection Act or the Marine Mammal Protection Act. The laws direct designated agencies to come up with rules to accomplish whatever the act is meant to do, but it does not get into specifics, because lawmakers rightly recognized that they are neither environmental scientists, nor economists of the industries those acts regulate. So if an administration says "holding hands and singing Kumbaya in the commissary is sufficient to accomplish the goals of our mandating legislation", and neither the legislature nor the courts are unwilling to call the executive on it, that's the ball game.
> lawmakers rightly recognized that they are neither environmental scientists, nor economists of the industries those acts regulate
The problem that this EO may be trying to address is that environmental scientists and economists aren't any more above moral reproach as presidents or legislators. Therefore, the status quo was such that if some unelected career civil servant working at an agency decides to interpret stuff under their expertise in one way or another that may be wrong, there was little possibility of redress on the part of the people.
Vote for a different president? No matter; career civil servants can't be fired because the president isn't king! Vote for a different Congressperson? No matter; they aren't experts so they'll defer to the civil servants! And therein lies the "deep state".
The correct answer, in my opinion, is that lawmakers need to sit down with the domain experts and write specific legislation with that expert input. That way, policy remains accountable to the people, who are the ultimate legitimate source of power.
I disagree categorically with this. Yes, in principle, the court cases would be easier if the law was written with the complete regulations in place to begin with. However, facts on the ground change faster than the legislature is able to move at the best of times.
It has always been the case that you or I could sue to overturn a rule from the EPA or the BATF or the FDA. At which time, you assemble subject matter experts to buttress whatever claim you might have, and the regulatory bodies present their experts and then a judge and jury decides. It’s pretty far from perfect, and it has some of the same flaws as the legislative approach, but the important strength is that national defense spending policy is not held up on where the sustainability of dolphin bycatch for tuna lays: 15 or 16 dolphins killed per 100,000 tons of tuna harvested.
I think the underlying premise to requiring the legislature draft all regulations is “the legislature should not be making rules about things they don’t understand”. But 1) that sure as hell hasn’t slowed them down before, and 2) the fact that e.g. airplanes are very complicated is why we want regulations around their manufacture and operation in the first place. It’s confusing to me that the conclusion folks seem to draw here instead is “it’s too complex for the legislature to engage with in a timely fashion, so I guess we just have to accept all these plane crashes”.
Useful redress for a bureaucracy taking lawful actions within the guidelines specified is never "let's fire the civil servant". They're not out to enact their agenda, they're trying their level best to achieve the goals set.
(Same way firing L3s doesn't help with execs setting a bad direction)
If that work is nowhere close to the perceived will of the people (again, please, let's not debate "what's the actual will though"), it's a failure of executive and legislative to create clarity.
You're right, ultimately this is about legislative and/or executive having conversations with experts to set the right goals and guidelines.
But you'll need it to be a conversation, and you need to leave room for independent decisions within a larger framework. The EO does squash all discussion or feedback down to "president's always right, ask the president". This makes redress harder, not easier.
Centralized command and control looks appealing because it simplifies a lot of things, but it breaks down because it assumes a single person has all the answers.
And this particular EO makes it worse, because it also directs agencies to ignore judicial decisions unless the president says so. Maybe. The writing's very unclear: "No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General."
What's "positions advanced in litigation"? Does it include injunctions/restraining orders? If it does, there is no judicial redress at all. Which means accountability is reduced, not increased.
I don't disagree with you that there need to be limits to regulatory authority of a bureaucracy. But this EO is very much not it.
There was nothing stopping Congress from getting expert input from environmental scientists and economists up front, and then incorporate that input directly into legislation. They didn't have to delegate all of their power to the executive branch.
You're getting downvoted for basically saying 'you know how command economies don't work? That model also doesn't work as a national governmental system' by the people who claim to hate command economies.
Fundamentally, an EO says "we urgently need to course correct and do X", which only makes sense if you agree that X is not already being done.
So this EO is not just declaring "the Executive Branch will obey me", but also saying "the Executive Branch has been so disobedient that I need to take immediate action to quash that"
If you are saying that latter sentence, you should be able to justify it by pointing at the disobedience that caused this issue AND explain why the usual mechanism of "Congress passes a law to address the problem" is insufficient (AND congress is currently aligned with the President politically, so that's a fairly uphill battle to argue)
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As an example, no one should ever need to write an EO declaring "the sky is blue." If you're familiar with history, you might remember that smog used to turn the sky yellow. If someone wrote such an EO back then, you could reasonably conclude the actual purpose of the EO is to declare "it is now illegal to notice that the smog is so bad that it's changing the color of the sky."
>So this EO is not just declaring "the Executive Branch will obey me", but also saying "the Executive Branch has been so disobedient that I need to take immediate action to quash that"
I'm not really clear what that has to do with the IRS, FDA, FAA, etc.? You don't burn down the whole orchard just because there's one bad apple. You certainly don't burn down the neighboring citrus farm.
I'm also not sure why something from 5 years ago is in any way urgent, much less so urgent that he needs to bypass a favorable Congress.
This same assumption of good faith was wholly present in peoples' responses to project 2025 prior to the election.
They are not acting in good faith.
Try restating the problem: Why is this EO being issued? What problem, other than judicial review, does it solve for the executive branch?
EDIT: For those who do not think this contributes anything: can you answer the question?