Comment by kjksf | Hacker News Reader

Comment by kjksf | Hacker News Reader

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To everyone asking: why is it crazy?

Because the constitution explicitly grants the president absolute executive power over executive branch (government) of which FCC is part of. If government is a company then president is CEO and can do anything he wants to do.

Of course people can argue about the meaning so ultimately the arbiter of what constitution mean is Supreme Court.

And recently there were several lawsuits in the vain "the president can't do THAT" and while federal judges said "indeed, he can't" and issued injunctions, they were pretty much overturned by higher court or Supreme Court, re-affirming that president does in fact has control of executive branch.

And if you want to game this: if this wasn't true, congress could completely defang the powers of the president by making every government agency (IRS, FBI, FTC etc.) "independent" and de facto giving the power to unelected beaurocrats away from elected president.

And why should you care about this?

Because every 4 years you can vote for a different president.

You can't vote for the head of FCC.

> You can't vote for the head of FCC.

FCC commissioners are appointed by the president (who is elected) and confirmed by senators (who are also elected). The chair is then chosen from those commissioners by the president (who, again, is elected).

Saying you can't vote for the head of the FCC is like saying that you can't vote for the Secretary of State. Sure, you don't cast a ballot for them directly, but you do wield influence by electing leaders to represent your interests.

> Saying you can't vote for the head of the FCC is like saying that you can't vote for the Secretary of State.

The Secretary of State serves at the pleasure of the president.

You're arguing that FCC commissioners shouldn't.

Where are you reading that in my comment?

My inference was that you were suggesting that the "independent FCC commissioner" was just as subject to control by elected officials as the Secretary of State because both are appointed by elected officials.

That's why I pointed out that the Secretary of State can be fired at whim by an elected official while the "independent FCC commissioner" can't.

I apologize if my inference was incorrect.

> Because the constitution explicitly grants the president absolute executive power over executive branch

No it doesn't.

The President is obligated to faithfully execute the laws of the United States. It's literally in the very first sentence of the Constitution's definition of the President's power and responsibilities.

Article 2 Section 3

Article 2, Section 1 says: "The executive Power shall be vested in a President of the United States of America."

Compare with Article 1, Section 1: "All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives" and with Article 3, Section 1: "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."

Who holds legislative power? Congress. Who holds judicial power? The Supreme Court (and other courts that Congress establishes). Who holds executive power? The President.

I'm no advocate for the extreme unitary executive theories of folks like John Yoo, but the idea that all executive authority is vested in the president can't be written off as something that some crank came up with in just the last couple of decades.

Right, and the executive power is the power to execute the laws that Congress writes (plus foreign policy, armed forces, and a bunch of procedural stuff — Constitutionally quite weak actually [by design])

That is the power that’s vested in the executive

Well, yes, the office of president was created to be weak relative to the British monarchy. But the substance of executive power (i.e., what actions are authorized) isn't really the issue, but rather whether anyone other than the president has the constitutional authority to do those things.

Take, for instance, the executive power "to grant Reprieves and Pardons for Offences against the United States" (Art. 2, Sec. 2). There is a pardon attorney who advises the president, but it is solely the president who has the executive power to grant the pardon; in that sense the president exercises the pardon power exclusively (or phrased differently "to the absolute exclusion of others").

I mean the structure is clear as day:

Congress writes the laws, the executive (led by the President) executes them.

Not sure what your pardon example is meant to illustrate.

Yes, Congress writes the laws, and the executive executes them. That’s certainly true in the general case. But when we talk about independent agencies like the FCC, the relevant question isn’t just the functional division of labor, but rather who holds the constitutional authority versus who exercises it under statutory constraints. In other words, even if Congress intends for the agency to act independently, the president’s Article II authority still provides the baseline for executive power. The pardon example illustrates the principle that some executive functions are exclusively presidential; independent agencies are essentially a statutory modification of that baseline, not a negation of it.

Of if one prefers to have it from directly from Chief Justice John Marshall, Marbury v. Madison, 5 U.S. 137 (1803):

"By the Constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and, being entrusted to the Executive, the decision of the Executive is conclusive. The application of this remark will be perceived by adverting to the act of Congress for establishing the Department of Foreign Affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the President. He is the mere organ by whom that will is communicated."

So every 4 years we throw out everyone who disagrees with the El Presidente. But yeah, this can be fixed by making the El Presidente be there for life, right?

Independent agencies exist to make policy shifts more gradual. That's their entire purpose.

Suppose, the next election cycle AOC gets elected, then puts in her cronies who require all stations to air 8 hours of pro-socialism ads every day. And there is nobody at the FCC to say "no".

The only entity that can sue is the DOJ, and it's also controlled by the president.

> Suppose, the next election cycle AOC gets elected, then puts in her cronies who require all stations to air 8 hours of pro-socialism ads every day. And there is nobody at the FCC to say "no".

Don't worry--if that came to pass, the Supreme Court would suddenly reverse itself and decide that the president doesn't actually have that much power over the executive branch. He only has that power when he's an (R).

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