Even with a highly sympathetic Supreme Court it is hard to imagine this EO standing.

It goes against the foundation of not only US law, but couple of hundred years of international democratic tradition in which allegiance is not to a person, but to the nation itself.

US civil servants and military alike swear an oath to support and defend the Constitution not the president or their commander. Illegal orders are not only expected, but required to be disobeyed.

This EO eliminates the concept of an illegal order since the law would be whatever the executive interprets it to be.

Ostensibly, this EO is meant to remove power from bureaucratically controlled agencies in the government. The right have been complaining that real power has been usurped from the institutions mentioned in the constitution, and centered in a professional managerial class, that works below the surface, and has no culpability or exposure to voters.

That's all massively up for debate obviously, but this EO seems to be aimed square at that "problem".

>setting up the president as the sole power center is an inherently unstable system.

But that is what the Constitution specifies (Article II Section 1):

> The executive Power shall be vested in a President of the United States of America.

I find it funny people either don't know this or are intentionally ignoring it. The entire power is vested in one person, who can delegate the enforcement of it to lower officers.

> Nothing prevents the next president from having a radically different opinion. There is a very good reason why the founding fathers built in an elaborate system of checks and balances.

Right, thats why they included a legislative branch and a judicial branch. The problem is the legislative branch delegated much of what it does to the executive, and the judicial said it was okay.

> setting up the president as the sole power center is an inherently unstable system.

Autocracies can be very stable... for a while depending on how much people are able to protest (or not). You could argue that N Korea has been "stable" (from the standpoint of the ruling family) for over 60 years.

> There is a very good reason why the founding fathers built in an elaborate system of checks and balances.

Sure that's what we were all taught in school. But it turns out that the whole system is heavily dependent on the executive branch "doing the right thing". But what good is it for the Judicial or Legislative branches to rule against the executive when the executive is in charge of enforcement? Even Nixon was eventually able to be shamed into doing the right thing, but if we have a president who can't be shamed into doing the right thing... well, I suspect we're about to find out, but my guess is that the checks and balances aren't going to be effective.

I took it to mean that agencies no longer have the final say in interpretations of law when it comes to exercising executive power. So for instance if ATF says a banana is a machine gun and the president says "yes", then barring an act of Congress clarifying, it is. I don't see how you go from there to the end of judicial review?

> setting up the president as the sole power center is an inherently unstable system

Only if there is a transition of power. If power stays in the same hands, the system can be very stable - and not in a good way.

That sounds pretty obviously unconstitutional. I don't see how a reasonable person could disagree actually. The whole point of the checks and balances is to prevent this.

> Nothing prevents the next president from having a radically different opinion.

Of course, this is only relevant if they are interested in having a 'next' president, something which it seems a segment of society is less than open to.

'The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch'

That's basically what EOs are already.

Before this EO, what happened if a lower level official in the executive branch had an interpretation of the law that was different from the President and Attorney General?

Was junior staff attorney in the Tulsa field office previously able to override the President?

They're trying to leverage the immunity the Supreme Court gave him to extend to people following his orders.

> In general, people are going to interpret this EO with their own lens.

IMO if you could look at this executive order in a blind test somehow not knowing who signed it and can ask yourself "would this be incredibly concerning even if it were passed by the political side I agree with?" and the answer is no then you're not looking through a lens, you are drinking kool-aid.

> Given that the executive branch implements the law, this would imply that the president's interpretation is all that matters. The other two branches have no real role left to play.

What role did the other two branches of government ever have in the executive branch? You're describing the normal state of affairs as if it were a shocking escalation. Actually, it's any deviation from this that is a constitutional problem. The elected president is the head of the executive branch. If he is not the head, then the executive branch has no connection to any democratic process at all. Who is a bureaucrat serving if not the president? An inner sense of fairness or fashion?

My lens is that the military is a federal agency, and our soldiers are federal employees.

This EO combined with the "he who saves his country breaks no law" quote points towards an eventual attempt at a coupe or similar use of force to retain power. Thankfully there are currently no partisan militias in the DOD, but I could see an attempt at a Saddam-style seizing of Congress

In the second quote, the phrases "in their official capacity" and "as the position of the United States" are doing a lot of heavy lifting.

The EO is going out of its way to broadcast that its purpose is to establish a unitary policy position of the executive branch that stems from the President, rather than having "independent" agencies providing contrary position from within "in their official capacity" "as the position of the United States." The logical leap from there to "the President's (unrestricted) opinion is the law (without reference to Congress or the Courts)" is vast.

The EO does not bear on the balance of powers between branches of government, but on the ability for the executive branch to function as a single entity within that balance, rather than a multiplicity of quasi-"independent" agencies.

The disincentives that have always prevented the executive from blatantly violating the law are still in force and unchanged. They have been functional through 250 years of Presidents testing the limits of their authority.

If they were able to follow through on this absolute power would California succession be on the cards?

> This can potentially enable an end run around congress and the courts in that the President can easily choose to interpret laws in a manner inconsistent with the intent of congress and courts.

How does it potentially enable that? The executive branch has always served under the delegated authority of the president. The executive branch has always been able to operate outside the laws as written and ruled on by the other branches, because they have practically no hard power.

Presumably the citizen militia are supposed to be the check and balance for that. The people have always been the ultimate deciders of the government's power.

>This can potentially enable an end run around congress and the courts in that the President can easily choose to interpret laws in a manner inconsistent with the intent of congress and courts

Good.

I hope they do so. Because if trump and friends do it it'll get struck down and precedent will be established. It will likely be too late to stop them, but it will stop the next guy. And the next guy may very well be some establishment swamp creature that would never have encountered any resistance from the other branches doing the same and worse.

Given that in all cases interpretation is required, are you trying to make the claim that the President (who is elected and can be voted out) should not make the interpretation, and that some employee who is not elected and works for them should?

I still don’t see how this changes anything.

I think trumps legal strategy is basically, putting the quiet part into writing. It’s as you already said, what has been the norm

If trump doesn’t like how the departments are executing his policy he has the power to steer it. It makes sense he is the ultimate authority for the executive branch.

Blame congress for ceding their oversight duties to departments. Which IMO is the root of the issue.

I don't read it like that.

I see it as notice to the members of the executive branch that insubordination will not be tolerated. The Chief Executive and the Attorneys General set the final executive branch decision on all matters, and all other members of the executive branch are expected to toe that line.

who could have seen this coming

>However this part of the EO is pretty concerning >> 'The President and the Attorney General, subject to the President’s supervision and control, shall provide authoritative interpretations of law for the executive branch' and later >> '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'

In the corporate world, when you’re unsure about something legal, you go to your in-house counsel and ask how to interpret the law, you don’t decide for you or the whole company. Same thing is happening here: if in doubt, speak to the AG.

A self-coup.

https://en.m.wikipedia.org/wiki/Self-coup

Ultimately, I expect this to be taken to the Supreme Court and reigned in.

The president is the executive branch.

Lawyer here.

So i think this is all insane, and a power grab, to start out. But not because of these parts of this EO

I think people are trying to assume this says "the president gets to ignore the courts and congress", but it, uh, doesn't actually say that anywhere. I would very conservatively guesstimate at least 50% of people assume trump will go that route, and so they assume this is the method by which he will do it. But unless i missed something, he's actually said the opposite consistently - he wants absolute power over the executive agencies, but will follow court orders.

If he was going to start not following court orders, i don't think he would have any trouble saying it. I don't think he would issue an EO, either, since those can be challenged. I think he would just continue to fire anyone who doesn't do what he says, or he otherwise disagrees with, and let each individual decision spawn a new court case, rather than give a really large EO that can be challenged and give him a much broader setback.

As for this order itself, I really hate taking a side I hate here, but there is almost nothing interesting in the parts you quote:

To start - AG opinions (and OLC opinions) were already binding on the executive branch. So they already provided authoritative interpretations of law.

Heck, the entire FBI is guided only by AG opinions and guidelines on how to conduct investigations, and has been since it's creation. There are no separate rules - it's just the AG guidelines and opinions. (There is also a secret set of AG guidelines for classified investigations, and they release a heavily redacted version of it)

I don't point this out to say it's awesome, i point it out to show that this state has existed roughly forever. It's just not commonly known i guess.

The part about the president was also already true in exactly the way it is described here. This is what caused things like the saturday night massacre - in the end, the president does get to say what they want to happen, and what they think is legal and people can either resign, or do it. That was always the choice.

This is all secondary to whether courts can say the president/AG's authoritative interpretation is wrong - they can and do already.

Nothing in this EO says otherwise.

>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'

This is also well within their power to request and enforce. It was also already true in practice in the vast majority of cases, and most importantly, before the highest courts of the land.

At the highest court level (SCOTUS), the US is represented by the solicitor general's office, which is part of the DOJ and controlled by the AG. They also look at appeals court decisions and get involved where needed to direct positions.

In lower level civil matters, the US is generally represented by the civil division of the DOJ, and therefore controlled by the AG.

The only thing this order theoretically changes is to say that the agency counsel who would represent the US at lower levels for various agencies can't take positions that contravene the AG or president.

That is, the counsel for the EPA can't decide they think the president is an idiot and that they are going to take a position that is the opposite of what the president wants.

There is actually little to nothing controversial about that - they shouldn't be doing so in the first place, regardless of who is president or AG[1]. The president always had the power (though rarely exercised) to tell the EPA in the case above to change their position, and fire every single person who refused. It has even happened that they have forced agencies to change positions at the district court level, fired people who refused to follow their interpretations, etc. All upheld since the days of the founding fathers. There is and never was a 4th branch consisting of independent agencies.

The issuance of regulations and their interpretation to flesh out the law is something congress is delegating to the executive branch when they set up executive agencies. The executive only has the power delegated to it here, and congress isn't even allowed to delegate significant power here.

To see why it's not controversial at all, if they moved all the agency counsel to the DOJ, you would have the same effect as this order. This would not be illegal for most agencies, though some have interesting appropriation and other restrictions that require consulting with congress prior to reorging them and whatever.

Put simply:

Congress has the power to restrict or direct agencies through legislation (and the EO even mentions this), and the Judiciary has the power to say everyone else's legal interpretations are wrong.

In between, the executive has always had the remaining power to direct the agencies and how they operate, and have done so, just not as clearly as you see here.

What this order explicitly forbids actually has also been a practical problem before, and the AG's and solicitors end up having to explain to a judge why they changed their position from the lower level one, and get made to look stupid. Not that i believe they are doing it to fix that, but it has abeen a real problem.

So like I said, while I think there is a huge power grab going on, this part of the EO isn't it.

[1] The office of the inspector general is basically the one agency that exists in part to audit and investigate the other parts of the executive branch, and so would normally take contrary positions. But those positions are not taken in court, they just issue reports and inform congress. The agencydoesn't, and has never had, any rulemaking power (except to the degree necessary to carry out it's own function), any disciplining power, and any authority. That is why it is legal for it to be independent and why it was illegal for the president to fire the head of the agency.

It's really sad no one just looks up the legal principles conservatives are pushing forward together with Trump.

Here, it's the unified executive theory, which is based on how the US system had worked for its first century.

Same with the birthright citizenship. The conservative argument is actually to a degree fairly reasonable. If I say this, then the current SC will surely rule in favor.

Just read the Wiki for an intro on the details.

Ironically, this is reminiscent of Bush-Cheney justifications for a host of programs such as NSA warrantless domestic surveillance, CIA black site rendition flights, Iraqi and Afghan Reconstruction, etc.

Method-wise, GW Bush used signing statements on more than 100 laws in collaboration with his AG to express executive control over interpretation of laws. The language of some of these is interesting, eg Dec 17 2004 on an intelligence reform bill:

> "The executive branch shall construe the Act in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch, which encompass the authority to conduct intelligence operations."

(Which was a long-winded way of saything were doing warrantless surveillance of US citizens, also circumventing the courts)

The other method was Office of Legal Counsel memos, eg Yoo's torture-is-OK letter for the CIA, etc.

Curiously, Cheney, the main advocate of unilateral executive power, was campaigning for Harris - but Trump can now use the Bush era as precedent, which is equally odd as Trump ran directly against some of those Bush-Cheney policies in 2016...

As to why this is a bad idea, look at King Lear and Macbeth, both being examples of unitary executive power gone wrong.