[nickburns]

Just because it has no precedence does not unconstitutional it make. I agree with the majority of the rest of what you've said.

No need for the 'you should carefully reread' snark. Not only am I the OP—but I've also passed a bar exam in my lifetime, which preparation included careful US constitutional law study.

[seattle_spring]

> Not only am I the OP—but I've also passed a bar exam in my lifetime

Was it administered by the same bar association that believes what DOGE is doing is illegal and unconstitutional [1]?

[1] https://www.huffpost.com/entry/american-bar-association-trum...

[nickburns]

That the American Bar Association, a voluntary, for-profit organization which mostly involves itself with issues concerning the American legal education and otherwise lobbys on behalf of its dues paying members, doesn't administer any bar exams—only the state governments do within their respective jurisdictions—aside... If you mean to refer to this statement made by its president:

  "The American Bar Association supports the rule of law. That means holding governments, including our own, accountable under law. We stand for a legal process that is orderly and fair. We have consistently urged the administrations of both parties to adhere to the rule of law. We stand in that familiar place again today. And we do not stand alone. Our courts stand for the rule of law as well."

https://www.americanbar.org/news/abanews/aba-news-archives/2...

I agree 100% that adherence to the rule of law is what separates the United States, Canada, most of Europe, and Oceania from pretty much the rest of the world.

But I don't see anything in the entirety of Mr. Bay's statement that's otherwise relevant to this discussion. Certainly nothing about Elon Musk nor "what DOGE is doing [being] illegal and unconstitutional" like you've claimed.

[sympil]

I said you should reread it becuase you said “this is how the executive branch works” and the link shows that it is indeed not how it works since Elon does not have the consent of the Senate and his position was not established by Congress or the Constitution. It was a polite way of saying you are wrong.

Just because it has no precedence does not unconstitutional it make.

Of course not. I did not say or imply otherwise. I said much of our system relies on following political norms. For example, it would have been perfectly Constitional for the last Congress to have removed the entire Supreme Court and replaced the justices. Such a constitutionally valid move would have had very bad implications.

[nickburns]

    "[The POTUS] shall have Power [ . . ] and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint [ . . . ] 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."[1]

At present Elon's position within the executive branch does not actually nor historically (for obvious reasons) require "Advice and Consent of the Senate", because no one that's part of DOGE, Elon included, is currently constitutionally interpreted to be an "Officer of the United States."[2]

Nor has Congress bestowed upon the POTUS the exclusive authority to nominate and appoint whatever Elon's position is without their advice and conset. That's what the after-the-colon part is all about: whether or not the appointment of any "such inferior Officer"[3] whose position is not otherwise expressly provided for (like Elon's) is vested by an act of Congress in the POTUS not requiring their advice and consent—not whether or not any such position is actually 'established by Congress' as you say. That's exactly the point: Congress derives no appointment power from the Appointments Clause. Their role is limited to providing either constitutionally-required advice and consent, or vesting a direct appointment power not requiring their advice and consent in the POTUS.

That being said, if the executive branch does something novel, like create and appoint thereto a position (or even an entire department) that didn't exist previously, then certainly that act may be ripe for constitutional challenge under the Appointments Clause. That is squarely one of the primary constiutional issues with what Elon and DOGE are doing, and that would be squarely for the SCOTUS to interpret.

Just curious since I don't think I've heard this argument before—from where in the Constitution do you interpret that "it would have been perfectly Constitutional for the last Congress to have removed the entire Supreme Court and replaced the justices"?

[1] https://constitution.congress.gov/constitution/article-2/#ar...

[2] https://en.wikipedia.org/wiki/Officer_of_the_United_States

[3] https://en.wikipedia.org/wiki/Appointments_Clause#Appointmen...

[sympil]

From lawyers I’ve talked to the Supreme Court has give the House wide lattitude on what it considers impeachable behavior.

From Wikipedia:

Defendants challenged the use of these committees, claiming them to be a violation of their fair trial rights as this did not meet the constitutional requirement for their cases to be "tried by the Senate". Several impeached judges, including District Court Judge Walter Nixon, sought court intervention in their impeachment proceedings on these grounds. In Nixon v. United States (1993),[18] the Supreme Court determined that the federal judiciary could not review such proceedings, as matters related to impeachment trials are political questions and could not be resolved in the courts.[19]

https://www.law.cornell.edu/constitution-conan/article-1/sec...

[nickburns]

*Latitude.

[sympil]

Very helpful.

[sympil]

I did link to a lawyer who was an ethics counsel to a former a former President who disagress with you. You can nitpick however you want and construe whatever meaning you want from the language of existing laws and justify in your mind your point of view. There are even legal experts who foolishly think Presidents ought to enjoy a broad amount of immunity from prosecution. Likewise people can provide legal arguments for why you are wrong.

Whatver the case there is no precedent for what is happening right now. The political norms have been upended and what is being done is contrary to how a large majority of people believe things are supposed to work. A new normal is being established and it is not a good thing. This is very unhealthy for the republic. Congressional power is being greatly limited and Presidential power greatly expanded. This is quite bad.

[nickburns]

You're replying 'at' me here, not to me. You've addressed nothing I've said or asked. And I mostly disagree with or don't find relevant just about everything you have replied with.

[sympil]

?

I begin to suspect you are being deliberately obtuse. I gave an example of something that is legal and Constitutional that Congress could do (remove all Supreme Court justices) that would totally upend the political norms of the country. It would cause a crisis.

Whether you can come up with a plausible legal justification for what Musk and Trump are doing is irrelevant. The previously understood balance of power has been upended. The crisis exists now. Congress has authorized spending that a President signed off on and now a new President is taking it upon himself via his designee to change that spending as he sees fit. This is very bad. This is not how things are supposed to work.

[sympil]

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.

Congress has not vested the President to appoint someone the power to do what Musk and his minions are doing.

[nickburns]

That sub-clause does not mean what you suggest through any reasonable statutory interpretation. And I'm not suggesting any kind of legal chessmanship here. I've simply identified for discussion a legistlative branch check on executive branch power that's expressly delineated in the Constitution.

Again... Congress doesn't decide what a so-called inferior officer has the "power to do"—merely whether the POTUS has the power to appoint said person without their advice and consent. The POTUS decides what its subordinates have the power to do. The check to such an exercise of executive power belongs to the judicial branch by way of legal challenge before a federal judge up to and including the SCOTUS.

[sympil]

Of course they do have such power. Each department/agency has legislation that spells out its scope. An underling in Department A doesn’t have the authority to act outside the scope of its Department A’s power/purview.