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Comment by snickerbockers | Hacker News Reader

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In most rule of law democracies the law is above the president. The civil servants are beholden to the law as passed by the representatives of the people, the chief executive can only give orders as allowed by the law. Granted there will be times of murkiness that require interpretation. But "fuck it I'm the president and everything I say is legal" is not a valid interpretation in any democracy I know of.

Generally when you reach that point it ceases to be a democracy.

This is (merely) an argument to roll back the power of the executive branch. It is what it is.

Important to note that USA is a republic, typically in Europe parliamentarianism.

Is that meant to support some position, what do you even mean? In republics the executive has all the powers?

US president has a lot of powers, I’m not aware of any elected official in Europe with the same amount of powers (ignore Russia).

President of France is probably the most comparable, but in France you also have the prime minister, selected by the president but supported by the parliament.

In Sweden we have a separation of powers within the executive branch. Government agencies are independent of the cabinet.

DOGE’s audit wouldn’t be possible in Sweden, that would have required legislation or even constitutional changes.

Sweden has already an independent government agency that audits the rest of the government, but it has support in the constitution for that and it is technically administered by the parliament and not the cabinet.

https://en.m.wikipedia.org/wiki/Swedish_National_Audit_Offic...

My personal opinion is that the US system of government is vastly inferior to Sweden’s.

The so called "audit" is not "possible" in the US either, except nobody intervenes when the laws are broken. Where is the security clearance?

If they have security clearance then the audit would be legal?

You've hammered away on this question in multiple comments. Are you under the impression you're consulting with experts in US federal law?

It seems that many objects to the audit on technicalities and use that as an argument that the audit itself is illegal or unconstitutional. It is a flawed argument.

> audit itself is illegal or unconstitutional

The audit might be unconstitutional because it's coming from a department which is wielding a great deal of Article II power even though it's not led by a cabinet official who was confirmed by congress. In other words, unconstitutional for organizational reasons that are unlikely to land any one person in criminal trouble. I wouldn't want to argue that point either way, but I bet the question of DOGE's constitutionality will be considered by a federal court in the coming years.

The notion that the audit is illegal because of "technicalities" is a lot more sympathetic. The handling of secure information in the government in unorthodox ways can be deemed to violate the law, or not, in some surprising (or maybe even arbitrary) ways. The last really big time this played out politically in the US was probably Clinton's email server.

As I hinted at above, I don't think anyone here is really conversant with that area of the law. On the other hand, I'm fairly certain even if DOGE has broken the law, the current DoJ will not find that DOGE has done anything requiring legal action, for the obvious political reasons.

I find your answer most interesting yet, especially about Article II.

Apparently the president can appoint temporary advisors that does not need approval from congress. If Mr Musk qualifies for such appointment I guess is that something for the courts to decide. I guess that implies that the audit itself is time framed.

In the Appointments Clause case challenging Musk’s role, the Administration has said Musk is officially an non-decision-making adviser (not a temporary one, just a generic White House staffer not requiring confirmation), and completely unconnected from US DOGE Service.

Oddly, they failed at the time, on direct questioning by the judge, to identify who the Administrator of US DOGE Service currently is.

I don't know. I know if they don't, it's illegal.

In the USA, both are true. Civil servants can (and should) refuse to follow an order they think is unconstitutional, illegal, or simply unwise. But this won't stop them from being fired for insubordination. I don't think the courts will attempt to force the president to retain subordinates that are actively opposing him on the job.

If they can still be fired, then what does it even mean to say that they can refuse to follow an unconstitutional order? Refusal to follow any order is not illegal. If the consequences for refusing to follow an illegal order are the same as the consequences for refusing to follow a legal order, then there is no sense in saying civil servants can refuse illegal orders.

The consequences for following an illegal order include being sued, being held in contempt of court, or being criminally prosecuted by a subsequent administration. They don't have the same immunity that presidents do because they don't have a direct vesting of authority under Article II.

Ok? The question is, in what sense are they allowed to refuse an illegal order, given that the consequences are the same as refusing to follow a legal order?

So, if the president orders a public employee to execute a random person on the street, they have no legal basis to refuse?

Probably not.

https://en.m.wikipedia.org/wiki/Disposition_Matrix

This was the specific argument raised in the SC verdict - but this is a question of whether the President is immune.

The question here is just BS. The President created organizations to enact the executives will.

The executive is now saying they want the power to come back to them. Which it always was - they had to work through the structures they created.

Apparently they dont want the institutions.

That’s simply not true. Congress has the power to organize the executive branch, not the president. Congress created the agencies and departments and they cannot be closed by the president.

Edit:

Constitutional explanation: https://www.law.cornell.edu/constitution-conan/article-2/sec...

report on Congress control of executive branch agencies https://crsreports.congress.gov/product/pdf/R/R45442/2#:~:te...

I am talking about this EO https://www.whitehouse.gov/presidential-actions/2025/02/ensu...

> the Constitution also provides for subordinate officers to assist the President in his executive duties.

> Therefore, in order to improve the administration of the executive branch and to increase regulatory officials’ accountability to the American people, it shall be the policy of the executive branch to ensure Presidential supervision and control of the entire executive branch.

And of course: > 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.

I am referring to your assertion that the president created organizations or can get rid of them, which is false.

Got it. I’m talking about this President’s EO and the implications it makes about independent agencies. Which are effectively his officers, so they are exercising his powers.

My understanding is that everyone takes the same oath of office to the constitution, not their boss:

> The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution …

That is the unproven unitary executive concept.

It's true only insofar as Congress won't impeach and remove from office.

Yes, like the 7 DoJ prosecutors who chose to resign last week rather than sign a dismissal of the charges against Eric Adams, because it was an obvious quid pro quo, and the case against Adams is very strong. There's absolutely no legitimate justification for not prosecuting Adams.

The dismissal was eventually signed and filed by Emil Bove, a very recent Trump appointee, whose former job was as one of Trump's criminal defense lawyers.

The stink of corruption is heavy around Trump and Musk.

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