[rayiner]

> This is the third time I've seen someone pushing this line of thinking on HN in as many days and I'd like to know more about where it's coming from. Can you cite any source that supports it and justifies it?

It's Civics 101. You should have learned it in 8th grade. Congress makes the laws. The President executes the laws. It's also right there in Article II, Section 1 of the Constitution: https://constitution.congress.gov/constitution/article-2/ ("The executive Power shall be vested in a President of the United States of America.").

If an independent agency is exercising "The executive Power," then it does so derivatively of the President. Article II doesn't say that "the executive branch" shall execute the law. It says: "he"--the President--"shall take Care that the Laws be faithfully executed."

Note also the parallel structure with Article I ("All legislative Powers herein granted shall be vested in a Congress of the United States") and Article III ("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").

The President is the executive branch, in the same way Congress is the legislative branch, and the Supreme Court and the lower courts are the judicial branch. All of these branches have various offices and subdivisions, but they are within the control of one of those three constitutional actors.

Congress cannot create an entity that exercises executive powers but does not answer to the President any more than the President can create an entity that exercises legislative powers but does not answer to Congress.

> FWIW, the conventional wisdom is that the independent agencies really are independent, and the president's control over them is exactly what is stipulated in the legislation that created them.

That has not been the "conventional wisdom" for anyone who went to law school in several decades. The notion of an "independent agency" exercising executive power independently of the President was an absurd idea cooked up by a racist in the early 20th century who hated democracy and had fantasies of "scientific government" (https://fedsoc.org/commentary/fedsoc-blog/woodrow-wilson-s-c...). It peaked in the mid 20th century, but the project of whittling it back to constitutionality has been ongoing my entire lifetime.

> 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, period end of story.

The Supreme Court held in 1926 that the President's removal power over executive-branch officials is essentially unconstrained (Myers v. United States). The Court then reversed itself in 1935 (Humphrey's Executor v. United States) but that case has since been limited pretty much to its facts (Seila Law LLC v. CFPB).

[ineptech]

Thanks for responding at length, though your derisive tone isn't winning you any converts. Is it your position then that the president can legally wield any power described in any legislation? If not, what can't he do? Can he, for example, raise and lower interest rates over the objection of the Fed? Approve an IPO that the SEC rejected? Lend money to his supporters through the SBA and deny loan applications from his adversaries? Refuse to deliver Hunter Biden's mail? If not, why not? I'm not trying to play gotcha here, but it seems like your position is that he can do these things.

[rayiner]

> 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.

[ineptech]

> 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.

[rayiner]

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.

[ilove196884]

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