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0 pointsrayiner1y ago0 comments

> Is it your position then that the president can legally wield any power described in any legislation?

I think Myers v. United States was correctly decided: https://supreme.justia.com/cases/federal/us/272/52/#tab-opin...

"The vesting of the executive power in the President was essentially a grant of the power to execute the laws. But the President, alone and unaided, could not execute the laws. He must execute them by the assistance of subordinates. This view has since been repeatedly affirmed by this Court. Wilcox v. Jackson, 13 Peters 498, 38 U. S. 513; United States v. Eliason, 16 Peters 291, 302; Williams v. United States, 1 How. 290, 42 U. S. 297; Cunningham v. Neagle, 135 U. S. 1, 135 U. S. 63; Russell Co. v. United States, 261 U. S. 514, 261 U. S. 523. As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that, as part of his executive power, he should select those who were to act for him under his direction in the execution of the laws."

The Constitution, of course, imposes limits on executive power, and statutes create private rights and obligations and provide procedures and substantive standards. But if the executive power otherwise may be exercised, Congress cannot constitutionally insulate the exercise of that power from the President's influence. Put differently, the procedural framework of a law can't merely be there to insulate the exercise of executive power from the President's influence.

To address your examples:

> Can he, for example, raise and lower interest rates over the objection of the Fed?

Probably.

> Approve an IPO that the SEC rejected?

It depends. The securities laws regulate private conduct--that's important--and impose various standards and procedures. So the president can't alter private rights without following those procedures and standards. But can the president supervise and direct how the SEC does it's job? Yes. The Arthrex case is relevant here: https://www.supremecourt.gov/opinions/20pdf/19-1434_ancf.pdf.

> Lend money to his supporters through the SBA and deny loan applications from his adversaries? Refuse to deliver Hunter Biden's mail?

No to both, because nobody at SBA or USPS could permissibly do those things.

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ineptech1y ago

> No to both, because nobody at SBA or USPS could permissibly do those things.

I don't see why. A specific person at the SBA is empowered to approve or deny the loan, and that person works for someone who works for someone who works for the president, right? I assume we both agree that Trump could likely get the loan approved indirectly, by ordering the SBA administrator to get it done and replacing him if he refuses. What's the difference between that, and Trump accomplishing the same thing faster via executive order, "As president I have reviewed this loan and all relevant regulations and determine that it is approved"?

For me and (despite what you say) conventional wisdom, the difference is that the SBA is empowered by statute to loan money and the president isn't. Under your interpretation, I don't think there is a difference and he really could do that. What would stop him? At least in the case of the SEC, someone might plausibly argue that he had broken a law, but I believe the criteria the SBA uses to approve loans are departmental regulations, which by your reasoning ought to be subject to the same presidential whims.

edit- I just realized that I used firing earlier as an example - "If the statute of the Dept of XYZ and says the president can fire its governing board but only on weekends, then he has to wait til Saturday" - which is probably why you brought up Myers. I don't really disagree with Myers (or Seila for that matter), but I also don't think it's very relevant to the larger question of whether creating an agency to do X is tantamount to empowering the president to personally do X.

rayinerOP1y ago

The SBA stature provides for various procedures for underwriting the loans. The executive must follow those procedures, because they relate to the substantive operation of the program and determination of private rights. So it can’t just be done by EO. But could Trump actually sit down and do all the work and make the loan? I don’t see any reason why not.

Myers happened to be about removal, but it articulated a broader principle:

> As he is charged specifically to take care that they be faithfully executed, the reasonable implication, even in the absence of express words, was that, as part of his executive power, he should select those who were to act for him under his direction in the execution of the laws.

ilove1968841y ago

Advocating for political interference in the Fed is a new low.

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