4 ms·

> 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 irrele

by rayiner 11mo ago

> 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 By “at the moment,” you mean “in the 1930s when the Supreme Court bent over backward to uphold FDD’s administrative state, right?” When they effectively overruled the Supreme Court’s 1926 decision in Myers v. United States, right? Because the text of the constitution says this: “The executive Power shall be vested in a President of the United States of America.” Show me how you get from that to executive agencies exercising executive power independent of the President.

adgjlsfhk1 11mo ago
a rule making agency isn't an executive power
- rayiner 11mo ago
  It does exercise executive power, otherwise it wouldn’t be constitutional. Only congress can make laws. When Congress delegates rulemaking authority to an agency, the agency makes rules pursuant to the executive power to execute the laws. For example, Congress can ban “unfair competition.” But it can leave it to the executive agency charged with enforcing the law to define rules for exactly what constitutes unfair competition. That’s permissible because deciding exactly what’s unfair reasonably falls within the scope of enforcement discretion.
dataflow 11mo ago
> Show me how you get from that to executive agencies exercising executive power independent of the President. "[The president] may require the Opinion, in writing, of the principal Officer in each of the executive Departments" Could you please explain why that clause is there if the president can already threaten to fire anyone who doesn't comply with their orders?
- rayiner 11mo ago
  Hamilton thought it was superfluous. Federalist 74 says: > “The President may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices.” This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office. Note that this provision must be redundant even without a unitary executive. Because otherwise, the implication is the only thing the President can do with principal officers is to ask them for an opinion. Some modern scholars think the provision, though functionally redundant, is there to address a dispute that arose during the debates about executive councils: https://www.yalejreg.com/nc/reconciling-the-unitary-executive-and-the-opinions-clause-by-michael-b-rappaport/ https://www.yalejreg.com/nc/reconciling-the-unitary-executiv... (“Unsurprisingly, the issue of an executive council arose at the Philadelphia Convention. Several proposals to create a council of state or a privy council were offered. Some of the proposed councils would have provided advice to the President but would not have required that he follow it, whereas others might have required that he secure the consent of the council. But each of the proposals was rejected. Instead, the Convention took language from part of one of the executive council proposals – ‘he may require the written opinions of any one or more members” of the council – as a model for the Opinions Clause.’”). So the clause is there not to describe what the principal officers must do, but what the President need not do. The President may but does not need to consult his principal officers before taking action.
  - dataflow 11mo ago
    I don't buy this at all: > otherwise, the implication is the only thing the President can do with principal officers is to ask them for an opinion. That's not at all the implication... how do you even reach that conclusion? The obvious implication is that the president can only do what he is legally permitted, which means he could do whatever Congress provides for in law, in addition to what's in the constitution. Because, you know, his job is to execute the law. And Congress and the constitution are the ones establishing the legal framework for agencies. > This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office. It's nice that Hamilton thought that, but what did those who wrote it think? It seems safe to assume they wrote it for a reason, not as fluff. Which brings us to... > Some modern scholars think the provision, though functionally redundant, is there to address a dispute that arose during the debates about executive councils [...] the clause is there not to describe what the principal officers must do, but what the President need not do. The President may but does not need to consult his principal officers before taking action. It's great some modern scholars think this, but this also isn't compelling. If that's what they wanted... they could and should have just said that directly, not left it as a historical puzzle for people to speculate about.

by rayiner 11mo ago

adgjlsfhk1 11mo ago

a rule making agency isn't an executive power

rayiner 11mo ago
It does exercise executive power, otherwise it wouldn’t be constitutional. Only congress can make laws. When Congress delegates rulemaking authority to an agency, the agency makes rules pursuant to the executive power to execute the laws. For example, Congress can ban “unfair competition.” But it can leave it to the executive agency charged with enforcing the law to define rules for exactly what constitutes unfair competition. That’s permissible because deciding exactly what’s unfair reasonably falls within the scope of enforcement discretion.

dataflow 11mo ago

> Show me how you get from that to executive agencies exercising executive power independent of the President. "[The president] may require the Opinion, in writing, of the principal Officer in each of the executive Departments" Could you please explain why that clause is there if the president can already threaten to fire anyone who doesn't comply with their orders?

rayiner 11mo ago
Hamilton thought it was superfluous. Federalist 74 says: > “The President may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices.” This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office. Note that this provision must be redundant even without a unitary executive. Because otherwise, the implication is the only thing the President can do with principal officers is to ask them for an opinion. Some modern scholars think the provision, though functionally redundant, is there to address a dispute that arose during the debates about executive councils: https://www.yalejreg.com/nc/reconciling-the-unitary-executive-and-the-opinions-clause-by-michael-b-rappaport/ https://www.yalejreg.com/nc/reconciling-the-unitary-executiv... (“Unsurprisingly, the issue of an executive council arose at the Philadelphia Convention. Several proposals to create a council of state or a privy council were offered. Some of the proposed councils would have provided advice to the President but would not have required that he follow it, whereas others might have required that he secure the consent of the council. But each of the proposals was rejected. Instead, the Convention took language from part of one of the executive council proposals – ‘he may require the written opinions of any one or more members” of the council – as a model for the Opinions Clause.’”). So the clause is there not to describe what the principal officers must do, but what the President need not do. The President may but does not need to consult his principal officers before taking action.
- dataflow 11mo ago
  I don't buy this at all: > otherwise, the implication is the only thing the President can do with principal officers is to ask them for an opinion. That's not at all the implication... how do you even reach that conclusion? The obvious implication is that the president can only do what he is legally permitted, which means he could do whatever Congress provides for in law, in addition to what's in the constitution. Because, you know, his job is to execute the law. And Congress and the constitution are the ones establishing the legal framework for agencies. > This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office. It's nice that Hamilton thought that, but what did those who wrote it think? It seems safe to assume they wrote it for a reason, not as fluff. Which brings us to... > Some modern scholars think the provision, though functionally redundant, is there to address a dispute that arose during the debates about executive councils [...] the clause is there not to describe what the principal officers must do, but what the President need not do. The President may but does not need to consult his principal officers before taking action. It's great some modern scholars think this, but this also isn't compelling. If that's what they wanted... they could and should have just said that directly, not left it as a historical puzzle for people to speculate about.