8 ms·

The shift is based on the argument that because the Communications Act of 1934 does not contain explicit for-cause removal protections for commissioners (unlike

• calvinmorrison 11mo ago
  The concept that congress could create a body that is NOT executed by the executive is crazier.
  • SilverElfin 11mo ago
    What do you mean? Why isn’t it okay to create agencies that have different models of management? Like by Congress or private third parties or whatever? They can do whatever legislation allows right?
    • CGMthrowaway 11mo ago
      While Congress has broad authority to create and design federal agencies, the Constitution is widely considered to impose strict limits to ensure no branch "gives away" its core powers, vis a vis the Appointments Clause, due process clause and Article I vesting clause[1] [1]https://en.wikipedia.org/wiki/Nondelegation_doctrine https://en.wikipedia.org/wiki/Nondelegation_doctrine
  • estearum 11mo ago
    It is executed by the executive. The question is the degree of power the executive has over the policies they're enacting. Not crazy at all to believe that the policy-making body of our government largely controls that. This is very obviously the design of our government. "[The President] shall take Care that the Laws be faithfully executed"
  • postflopclarity 11mo ago
    why is that crazy? legislative supremacy is an extremely common pillar of many theories of democracy. the executive has only the powers enumerated in the Constitution and explicitly granted by Congress. if Congress wants to set up an agency independent of POTUS, that "should" (scare quotes because who knows what this activist SCOTUS will do) be well within its constitutional purview
    • bigstrat2003 11mo ago
      The legislature also has only the powers enumerated in the Constitution. As "create independent agencies" is not one of those powers, it comes down to a matter of interpretation as to whether one of the powers granted to Congress implies the ability to create independent agencies. But once you enter the land of interpretation, it's, well... open to interpretation, and thus it's not unreasonable for someone to take issue with a certain interpretation.
      • stvltvs 11mo ago
        Proposal: constitutional amendment granting Congress the power to institute independent agencies lead by independently elected officials directly responsible to the voting public and subject to Congressional impeachment. For example, make attorney general an elected, independent position.
        • CGMthrowaway 11mo ago
          https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4190048 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4190048
    • curt15 11mo ago
      The Constitution was, after all, written by people who had just fought a war to throw off an overreaching executive. No goal was more important to them than to prevent another one.
      • 11mo ago
  • dragonwriter 11mo ago
    “Independent” agencies have always been a distinction within the executive branch, not a distinction from thr executive branch, so while arguably true on its face, your statement is also a strawman.
    • JumpCrisscross 11mo ago
      > have always been a distinction within the executive branch “Always” is doing heavy lifting here. Independent agencies were a paradigm shift under FDR. We’re presumably seeing a shift away from that paradigm.
    • CGMthrowaway 11mo ago
      > “Independent” agencies have always been a distinction within the executive branch The common use of the expression "fourth branch of government" to describe independent agencies belies your assertion here.
      • dragonwriter 11mo ago
        The common use of that termis to describe administrative agencies with regulatory power, independent of whether they are independent agencies; its a (hostile and derogatory reference to) bureaucracy distant from elected officials, not a theory of the positioning of independent agencies in contrast to other executive agencies.
        • CGMthrowaway 11mo ago
          Citation needed. My reference goes all the way back to 1937 and is specific to independent agencies. > Almost fifty years of experience has accustomed lawyers and judges to accepting the independent regulatory commissions, in the metaphor, as a headless 'fourth branch' of government. Source: 1984 Columbia Law article, referencing the 1937 Brownlow Committee Report. https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?article=1211&context=faculty_scholarship https://scholarship.law.columbia.edu/cgi/viewcontent.cgi?art... Also Wikipedia: "The independent administrative agencies of the United States government may also be referred to as a ‘fourth branch’." https://en.wikipedia.org/wiki/Fourth_branch_of_government https://en.wikipedia.org/wiki/Fourth_branch_of_government
  • Animats 11mo ago
    That's come up, too. The Copyright Office is a unit of the Library of Congress. Trump tried but failed to fire the head of the Copyright Office.[1] U.S. Marshals used to belong to the judicial branch, and were hired by the district courts. In the 1960s, they were moved to the executive branch, under the Justice Department. This wasn't controversial at the time. The court system wasn't set up to train and manage the marshals. But the effect was that the courts lost their independent muscle. [1] https://apnews.com/article/trump-supreme-court-copyright-official-firing-c5ccca29ff5413815347340ffa300f69 https://apnews.com/article/trump-supreme-court-copyright-off...
    • Animats 11mo ago
      Related to this, there's a bill to move immigration judges from Homeland Security to the judicial branch, making them "Article 3 judges". That's currently considered unlikely to pass this session, but maybe next session.
  • kjksf 11mo ago
    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.
    • jakelazaroff 11mo ago
      > 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.
      • anamax 11mo ago
        > 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.
        • jakelazaroff 11mo ago
          Where are you reading that in my comment?
  • SubiculumCode 11mo ago
    To execute is different than having the royal prerogative, or at least it did to the founders: https://jach.law.wisc.edu/exec-power-royal-prerogative-founders-presidency/ https://jach.law.wisc.edu/exec-power-royal-prerogative-found...
• Forgeties79 11mo ago
  I just don’t know how someone could possibly think this is a good thing unless they are in the executive branch reaping the direct benefits
  • DFHippie 11mo ago
    That's always the question with this unitary executive business. They believe this is the government defined by the Constitution, regardless of precedent. Do they believe it is a good system of government? Do they believe this is the government intended or rather the government allowed by legal loophole, vagueness, or contradiction? Because it seems like they think the president should rule like a monarch because they happen to control the presidency at the current moment, not because it is a wise and effective system of government.
    • CGMthrowaway 11mo ago
      The concept of independent agencies (that is, those overseen by Congress rather than the president) was controversial long before, and for far longer, than it wasn't.
      • hexator 11mo ago
        Yes but let's not pretend this isn't a new interpretation.
        • CGMthrowaway 11mo ago
          It's not, really. In Seila Law v. CFPB (2020) the Supreme Court ruled that even directors seemingly protected by for-cause language (which the FCC charter does not have) can be removed at will unless the agency in question "exercises no part of the executive power" and is "an administrative body ... that performs ... specified duties as a legislative or as a judicial aid." https://en.wikipedia.org/wiki/Seila_Law_LLC_v._Consumer_Financial_Protection_Bureau https://en.wikipedia.org/wiki/Seila_Law_LLC_v._Consumer_Fina...
• Animats 11mo ago
  The constitutional language for appointments is: He (the president) shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments. So the president can appoint various officials, but the Senate must, by majority vote, confirm the ones that Congress hasn't designated as not requiring confirmation. On the removal side, there's this: The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors. Note "all civil Officers of the United States". Any government employee can be impeached. A few judges have been impeached and convicted over the last 200 years. That's all the Constitution says. Cabinet members and some other high officials serve "at the pleasure of the President", and Congress has delegated authority for lower level civil servants to the executive branch and the Merit System Protection Board. So the question for the various semi-independent boards and commissions is whether the president can remove them, or whether they need to be impeached to be removed. This is a real question where the members have a term of office set by law. Federal Trade Commission members have a 7-year term. Security and Exchange Commission members, 5 years. Federal Reserve commissioners, 14 years. Arguably, they should serve out their term unless impeached. The constitutional argument is that the executive branch has only enumerated powers, those listed in the Constitution. Since the constitution specifies both appointment and removal by impeachment, that covers the only ways such officers can enter office or be removed from it unless Congress provides otherwise.
  • CGMthrowaway 11mo ago
    You are making an argument for strict enumeration, in other words that officers can only be removed via impeachment because it is the only removal method explicitly listed in the Constitution. That argument was formally rejected by SCOTUS in 1926[1], and really only in force for lifetime appointment judges today. [1]https://en.wikipedia.org/wiki/Myers_v._United_States https://en.wikipedia.org/wiki/Myers_v._United_States
• anigbrowl 11mo ago
  Ironically enough, the administration is attempting to fire Lisa Cook from the Federal Reserve Board of Governors, despite the very clear existence of a 'for cause' clause, and has taken the matter to the Supreme court where it will be heard next month.
  • CGMthrowaway 11mo ago
    Trump has attempted to fire Cook for cause, not outside of any for cause protections. The claim is she committed mortgage fraud.
    • vkou 11mo ago
      The Russian playbook. Just wait until opposition candidates start getting disqualified for an unpaid parking ticket (while the incumbent had his fingers in a tank assault on the Duma, or three different election fraud conspiracies and one failed coup).
    • matthewdgreen 11mo ago
      It's a little more complicated. The Supreme Court has already ruled that Trump can fire agency heads not for cause even when there is a "for cause" clause in the law. The Court then invented a new "the Federal Reserve is special" clause that prevents Trump from using that exact same power on Fed Governors. So because the Court has made a patchwork quilt out of the law (in an effort to bring about their preferred policy outcomes), Trump is now trying to muster "cause" against Cook. Early signs indicate that the case appears to have serious problems.
      • seanmcdirmid 11mo ago
        Even though The Supreme Court is still trying to keep up appearances, they are not working off of consistency at this point, so anything can still happen.
        • rayiner 11mo ago
          The current body of Supreme Court jurisprudence is extremely consistent in comparison to the mid-20th century when it ginned a 4th branch of government out of thin air and rights out of “emanations and penumbras.”
• rayiner 11mo ago
  That’s a good analysis. But the simpler route is that there is no such thing as an “independent” agency. That’s a 20th century creation. The constitution doesn’t even talk about an “executive branch.” It vests the executive power in a single office—the President. (“The executive Power shall be vested in a President of the United States of America”). Can congress create a law that provides for congressional aides to exercise power “independent” of Congress members? No. Can Congress create a law that provides for judicial law clerks to exercise power “independent” of Article III judges? No. It’s an extremely easy question. Myers v. United States got the right answer almost 100 years ago.
  • curt15 11mo ago
    >Can Congress create a law that provides for judicial law clerks to exercise power “independent” of Article III judges? No. It’s an extremely easy question. Myers v. United States got the right answer almost 100 years ago. Article I courts arguably exercise judicial power independently of the Article III judges. But if you want to go down the separation of powers route, you'll need to break up many federal agencies to separate their legislative and judicial functions from their executive duties. That was the basis of Humphreys Excecutor, which btw was decided by largely the same court as in Myers. Humphreys (and later in Morrison v Olson) recognized that federal agencies can in practice perform "quasi-legislative" and "quasi-judicial" functions, not just law enforcement duties. There is for example a body of law governing rulemaking by agencies. Even CJ Roberts observed during the oral arguments of Trump v Slaughter that an agency's functions might span all three categories of government power -- executive, legislative, judicial -- to various degrees. If separation of powers is to prevent Congress from wielding executive power, it should likewise preclude a president from laying claim to the other categories of power.
    • rayiner 11mo ago
      Article I courts don’t exercise the “judicial power.” https://www.law.cornell.edu/constitution-conan/article-3/section-1/legislative-courts-adjudicating-public-rights https://www.law.cornell.edu/constitution-conan/article-3/sec... They exercise adjudicatory powers that Congress could otherwise provide to be handled directly by the executive or private bills. When a case involves an actual Article III issue, Article I courts need to kick it over to an Article III tribunal: https://supreme.justia.com/cases/federal/us/564/462/ https://supreme.justia.com/cases/federal/us/564/462/ The terms “quasi-judicial” and “quasi-legislative” do not mean “judicial” and “legislative,” they mean “executive.” For example, the legal fiction allowing executive agencies to make rules is that those rules are simply structuring what they could do with executive authority anyway. So separation of powers actually cuts in the opposite direction with respect to quasi-legislative and quasi-judicial powers. So when the SEC prosecutes you in front of an ALJ for violating an SEC rule, it isn’t actually exercising judicial or legislative powers. It’s just laying out those structures for what it could do through some guy making an executive decision. That’s the only reason the SEC is constitutional. Given that, Congress shouldn’t be able to limit the President’s supervision over what’s notionally an exercise of executive power.
• jmward01 11mo ago
  At this point I think we can clearly see that the interpretation of our laws is extremely partisan at the moment, to the point that what exact text says is basically irrelevant. The broader issue here is a massive, completely unchecked, power grab that is -deeply- troubling. Our checks and balances, are failing us and this is another sign of their deterioration.
  • buellerbueller 11mo ago
    Yes, it seems as though a politically-aligned congress is ceding lots of its authority to the executive, while the SCOTUS is restraining the rest of the judiciary from checking the executive. The shame of this is, it is in defiance of the design of the Founders, and will take a LONG time to correct, if we don't descent into authoritarianism before it is corrected.
  • CGMthrowaway 11mo ago
    You may be right, but it may be more accurate to say checks and balances are shifting, not failing wholesale. Judicial review of executive actions is stronger and more frequent than its ever been. Congressional power of the purse is secure. And the REINS Act (not yet passed) would require Congress to approve major agency rules before they take effect
    • estearum 11mo ago
      > Congressional power of the purse is secure Which reality do you live in? In my reality, POTUS is doing everything he can to grind down Congress's power of the purse. He's actively pressuring Fed policy, which at its most extreme gives the executive a blank check as it can force the Fed to purchase treasuries, filling the executive's coffers directly. At the same time, they're arguing that pocket rescissions give them the right to avoid spending any individual dollar they do not wish to spend, even if Congress has allocated it. Tell me what gives you confidence that the power of the purse is secure?
      • CGMthrowaway 11mo ago
• cryptonector 11mo ago
  Andrew Johnson was impeached for removing Senate-approved officers. The trial failed. It's been the precedent since then that the President can terminate any and all presidentially-appointed officers, at any time, and for any reason. Sure, the SCOTUS has vascillated on this, but the courts now are being more clear now that this really is the case.
  • miltonlost 11mo ago
    > the courts now are being more clear now that this really is the case. Which have been packed by Federalist ideologues for years. The "court" (as if its some one whole) isn't some nueatral 3rd party arbiter of the "law".
  • jshier 11mo ago
    Presidential impeachments are political processes and so do not set precedent. At least, not any more than any other political process. So it's as much a precedent as McConnell's "no SCOTUS confirmations within the year before a presidential election" or Johnson's "congress members don't need to be seated in a timely manner" precedents.