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Comment by bobongo | Hacker News Reader

“ Sec. 7. Rules of Conduct Guiding Federal Employees’ Interpretation of the Law. The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch. The President and the Attorney General’s opinions on questions of law are controlling on all employees in the conduct of their official duties. 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.”

This does not bode well for that country’s democracy.

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I think a lot of people that are freaking out are missing that this applies to the executive branch, over whom the President has already perfectly well established. Literally the first statement of article 2 of the US Constitution (which lays out the power/rules for the executive branch) is "The executive Power shall be vested in a President of the United States of America."

The main point of this executive order is likely part of the ongoing issues related to the chevron deference. [1] Chevron deference [1] was a (IMO very weird) legal standard that was overturned in 2024. It required the judicial to completely defer to the executive branch in cases where the laws around executive departments (generally relating to the the limits of their regulatory power/authority) were ambiguous. When this was overturned, the judiciary regained their independence and were once again able to hear and independently judge cases around these executive departments.

This order is now stating that the executive branch departments themselves will no longer be independently interpreting the law at all, but instead defer to the legal opinions of the head of the executive. The order itself also makes it clear that it does not allow rejecting or unreasonably redefining the laws applying to the various departments - instead the main issue is where potential ambiguities and related limits/allowances will be determined. And of course those determinations could then be challenged by either the judiciary or the legislative (by passing overriding laws).

The short version of this is "Executive departments will now be directly accountable to all three branches of government - executive, legislative, and judicial."

[1] - https://www.law.cornell.edu/wex/chevron_deference

This is just a statement of the unitary executive theory. Unitary executive theory is controversial, and the controversy there did not (until, oh about last month) align with party lines.

No - it’s a statement that the executive branch will (as a matter of policy) ignore Judicial and Congressional oversight. Unless it wants it, anyway.

> It required the judicial to completely defer to the executive branch in cases where the laws around executive departments (generally relating to the the limits of their regulatory power/authority) were ambiguous.

Why doesn’t congress do its job and write laws that do things?

Because the republicans punish their own when they reach out to support bipartisan efforts.

Even right now, congressmen have been threatened with being primaries if they don’t toe the line.

There has been multiple decades of very public efforts to degrade and break the American system. Ever since watergate.

Congress was broken.

I don't disagree with you, and neither would the Founding Fathers. In fact they were even opposed to the concept of political parties, but the power/convenience they enable means that lasted all of 5 seconds. But I would say that Congressmen being threatened with being primaried if they do unpopular things is literally the entire point of representative democracy.

I think the question is when that pressure to obey is coming from the people and when it's instead coming from the party. In the ideal scenario the party and the people (at least the constituency) would be in lockstep. In any case term limits would help. If you're going to be out of office in at most two terms, it eliminates any point about sacrificing your values for some sort of long-term favor/benefit with the party.

Why this conversation, where it seems like these things are mysterious?

Post watergate, Conservatives built FOX, they laid out their plan to break the american system, and take over to push their agenda.

No one took it seriously, and now when its happening, people are still unable to look at it.

You have the pantomine of a party. They have debates. They have primaries. They have a media organization which is 'independent'.

The solution is to fix congress, rather than further consolidate executive branch. Later leads to very predictable outcomes, and they aren’t exactly democratic.

I’ll choose stale democracy over striving autocracy each day every day.

The way regulatory authority works is that Congress writes laws that offer general guidance, and then regulatory body creates rules around that guidance. It can enable them to quickly react to changing scenarios, and also offer greater expertise or more detail than may be reasonable to expect of Congress. The issues arises when it's unclear if actions and guidance are aligned.

For a contemporary example, part of the CDC's power comes from Section 361 of the Public Health Services Act [1], which grants them the power to execute orders to prevent the spread of disease into the country or in between states. Examples included inspection, pest extermination, fumigation, and so on. The CDC invoked this power to prevent landlords from evicting delinquent tenants during the COVID stuff.

That was a gross enough (and also, critically, harmful enough) violation of their mandate that it was able to be challenged in the courts and eventually tossed even in the Chevon Deference era, but a lot of scenarios are much more ambiguous. So now their actions will be fully subject to oversight from all branches of government. The end result is that executive departments will have a much harder time overstepping the bounds of authority granted to them by Congress.

[1] - https://www.govinfo.gov/content/pkg/COMPS-8773/pdf/COMPS-877... (page 405)

> The end result is that executive departments will have a much harder time overstepping the bounds of authority granted to them by Congress.

You could’ve fooled me.

Where do you think all these powerful agencies came from?

It'll take some time, but I would highly recommend reading the oral argument transcript for the Chevron decision. You'll see some good history and opinions on why Congress now does what it does.

It wasn't always so. In 1979, when Chrysler wanted federal loan guarantees, Congress passed a specific act to do so. Contrast that with what's now a blanket check to agencies thru an Omnibus

https://www.supremecourt.gov/oral_arguments/argument_transcr...

We’re not “missing” anything, your interpretation of the Constitution is incorrect. You may want to scroll up and read Article I, which constrains Article II (that’s why it comes first).

Your understanding of Chevron deference is also incorrect, for what it’s worth.

> You may want to scroll up and read Article I, which constrains Article II (that’s why it comes first)

What in Article I imposes constraints on the presidency? It's almost all about the legislature itself, and hardly mentions the executive. Specifically, I don't see anything that lends credence to the idea that Congress can control the workings of executive departments.

Article I defines the powers of Congress. Having been assigned to Congress, those powers are not available to the president.

Instead, the president is responsible for faithfully executing the laws. So if the law defines how an agency is staffed and makes policy, the president is bound by that.

If this seems like an imposition upon the president, please remember that the president agrees to these impositions in advance by signing the laws.

> if the law defines how an agency is staffed and makes policy

Strongly contingent upon this, right? Wasn't the whole "administrative state" / "Chevron deference" argument that Congress did the bare minimum in defining what an executive agency is supposed to do, left it up to the executive to direct it as it sees fit? And worse, the supposedly apolitical career civil servants in charge of these agencies may from time to time thwart the will of the democratically elected head of the executive?

Where is the people's recourse then?

The original Chevron ruling was an expansion of executive branch power; it said courts should give “deference” to agencies in matters where Congress was not specific—usually in detailed findings of fact and definition of regulations, the work of the agency. Congress usually is specific about structure and governance.

The recent decision to formally overturn this precedent was a reduction in power for the executive branch, since it greatly expanded the scope of when a judge could overrule agencies. However, judges were mostly already doing this, so the big headline ruling was more like a funeral than a murder.

> I don't see anything that lends credence to the idea that Congress can control the workings of executive departments.

Along with what others have said, you might want to recognize that Congress controls the purse. They dictate how much the executive should spend on each item, though that can be nuanced (as in "up to this much" vs "exactly this much")

Congress created those departments, and specified how they should be staffed and operated, and what powers they were granted.

That's because the executive does not have the power to create those departments (Article II does not grant that power).

It's an undeniably weird setup: the departments are staffed and run by the executive branch, and they report up into the president, but they are still accountable to Congress, which is where their power to do anything is derived from.

> this applies to the executive branch

So he gets to tell police what the law is and who to arrest within the "law" that he proclaimed.

You're misunderstanding the EO. It has nothing to do with the Chevron deference (and you are also misunderstanding the impact of the Chevron deference)

This has nothing to do with "democracy" in any way. This is the equivalent of a CEO publishing a memo telling employees how to interpret things that happen outside of the company (e.g., new laws, social trends, etc.) It's the CEO's job to align their workforce to have the same interpretation of information. Federal judges can still rule on issues brought before them but the judges have to provide Constitutional- or precedent-related rulings.

Why are Americans acting so surprised that the President has this authority? That is his job, as it was for all presidents before him. This executive order is saying that the "employees under the CEO" do not have the authority to usurp the "CEO's" interpretations of law. Checks and balances still apply, of course; Congress can intervene if the President is acting in ways that Congress doesn't like. That's what impeachment is for--and impeachment is a process regardless of whether the President is issuing "illegal" executive orders or doing something else like what Nixon did.

The process works; blame Congress for not holding the President accountable in the ways outlined by the Constitution.

Because people in independent agencies are by act protected from exactly these things. Think for a bit, why were they not just called "agencies"?

And for all the stupidity of congress, if the fail to protect against a self-coup, that doesn't make it any less likely.

If you ignore all context, their support of the unitary executive (anti-american) theory, and the recent comments that "if a president does it, it isn't breaking the law" and "going against the will of the president is going against the will of the people"...

If you ignore ALL of that then you have a talking point worth debating.

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I've been seeing posts like this all over hacker news. They appear to be structured like rational arguments but really make no logical sense.

I have no doubt that these people know exactly what they are doing, and are intentionally lying and spreading these "very reasonable" arguments as a blueprint for others to copy.

Their goal is to fluster and confuse the situation.

It may be the case. I also genuinely think some people are not paying attention and think in a vacuum. They fail to see the malice and the words and writings from these people wanting to destroy the function of the government.

But hey, the president is like a CEO, right?

The problem with the CEO as president metaphor is that the CEO of a company is functionally a dictator. If the company is private, then there are no checks on the CEO at all.

Calling someone a dictator is an accusation, something every American was taught was wrong in school. Calling someone a CEO is a compliment, something our collective media has taught us to aspire to.

CEO is just a softer word that makes submission easier, or even logical, while it hides the truth of that power structure which is functionally the same for both.

"The CEO metaphor re-frames political rule as a business operation, which makes executive overreach appear logical rather than dangerous."

This is a very effective manipulation technique.

https://commonslibrary.org/frame-the-debate-insights-from-do...

A large component of the right-wing media campaign for the last, well, all of my life has also been to normalize their actions by accusing The Other Side of doing it first. "Activist judges" was the most notable one.

Absolutely. So many are okay with Trump being openly corrupt and weaponizing the Justice department because "so did Biden".

I have a puzzle for you:

Let's say we have a democracy where the only rule is highest vote wins. Let's say 51% of the people vote to enslave/oppress the other 49%.

Maybe they vote for literal chattel slavery. Maybe they vote for healthcare for themselves but not the others. Maybe they vote to tax the others at the maximum possible or implement tax policies that dis-proportionally affect the 49%. Maybe they vote the 49% cannot own homes and therefore must pay rent to a landlord. Maybe they vote that the 49% must register for the draft, but not them. Maybe they vote that the 49% aren't eligible for public school while they are. Maybe they vote that the 49% is not able to own stock or register for a company. Let's pretend those are legal, it is definitely possible. Slavery at one point was constitutionally allowed.

Is that a Democracy? A Liberal Democracy? A Democratic Republic? A Constitutional Democratic Republic if the law were enshrined on paper?

Would you want to live in that country? Would you want to live in that country if you were in the 49%?

What is the key ingredient that makes something a "Democracy" rather than tyranny of the majority, "mob rule," or "might makes right"?

Well, it is a democracy, the key being that the majority of people voted for some law. Whether you'd want to live in the country is a different story. Sometimes, democracies are not always the best form of government, they are as susceptible to systemic issues as any other form of government.

So you do not understand what a democracy is and how it works.

Balance of the three branches of government and the rule of law and protection of minorities are the complementary requirements to the majority vote, to qualify for a democracy.

In the simplest sense of the word, none of that is needed. Athens had such a democracy, where a majority of people made a decision so. You are putting more stipulations on the word than are strictly necessary, hence why I said the democracy examples you gave would not be great places to live in.

You referring back to only Athens when we have had several centuries of political history and progress, is embarrassing.

The Constitution of the USA was especially a model of its kind. Until we realized its implementation went lacking from true believers, for what we can witness since January 20th.

Check also the constitutions of modern democracies throughout the world.

Something that depends only on the rule of the majority, without constitutional guarantees of the respect of the law, without a self-defense system against abuse of power is a relic of the past prototype democracies.

You asked whether something is a democracy, not a modern democracy, hence why I gave the examples I did. And even in a modern one, I am unconvinced that just because there are features like you mention for modern democracies does not make them not actual democracies. They very well can be, by the dictionary definition of the word, just not free ones.

Also, no need for the ad hominems, there is no reason to accuse me of not understanding something or it being "embarrassing," that is not helpful to any sort of conversation.

I get your point. But calling your argument embarrassing is not an ad hominem.

I’m not saying you do not understand. I am implying that in a discussion in the XXIth century about the concept of democracy as it has evolved in both the littérature and the history, and has been demonstrably stable and efficient, “democracy” is understood in the modern acception, and especially here, in the context of the USA Constitution - and there it has the requirements I laid out.

Turning any country today into an antique democracy rule would make no sense, unless you accept a peculiar instability. We have experienced, in many nations, how to adjust and balance how a democracy can work and self-sustain. However, we also still experience how fragile they stay.

And the disappointment is abysmal. Hence, perhaps, me being a tad tense in my words, for that I present my apologies.

> You referring back to only Athens when we have had several centuries of political history and progress, is embarrassing.

> The Constitution of the USA was especially a model of its kind.

Then how is it that the US in its inception, like Greece, did not allow neither women nor all men (slaves) to vote? Clearly not much progress had been made by then. Much of the progress was made in the Civil rights movement, for example. That was last century, not "several centuries".

To be clear, summarizing my other replies to your comments, I am 100% with you that all of the things you mention are good things, and that they should be defended. But your redefinition of democracy (and American democracy in particular) doesn't parse and seems to be the product of historical revisionism.

I may have been more fussy than revisionist then, sorry for that.

What I was (unexplicitly enough) implying is that I don’t see how a stable democracy, going forward, could work, without implementing those improvements mechanisms that emerged through time and experience.

A pure Athenian democracy today at the scale of a country, with the complexities of the day, wouldn’t hold for more than a few years, at best.

That would exclude every parliamentary democracy in Europe, so no.

Also, the word 'democracy' does not appear in either the US Constitution or the Declaration of Independence, so it's weird to make the argument you are making. The Founding Fathers never envisioned a party system to begin with. Women and obviously slaves could not vote. The US has only been getting more democratic over time. Your argument looks a bit like historical revisionism to me.

The earliest "democracy" (demokratia) dates back to the Greeks (and for free men, anyway), and Aristotle's Politica will tell you a bit about it.

> That would exclude every parliamentary democracy in Europe, so no.

There are variants (especially executive and legislative work more closely) but please list those where there is no constitutional or customary such a balance between executive, legislative and judiciary?

Thanks for suggesting I don’t know my classics, you seem not so certain about modern European democracies.

You don't need separation of powers to "qualify for democracy", per your statement above. That just simply isn't true. Democracy is, simply put, a form of government where power emanates from the people. That the separation of powers is for the best we obviously agree on, but to say that it is suddenly a necessary requirement for "democracy" is simply just redefining what the word "democracy" means.

That sounds like Ancient Greek democracy except the gap was much larger than 51-49.

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