[throwme0827349]

Laws are being broken to make the omelet. Will the executive constrain itself to breaking only the laws you don't like, and stop when you want it to? Will the legislative branch cede it's authority and responsibilities only temporarily?

It might hard to unscramble that omelet if we want the rule of law back later.

[rayiner]

The laws were broken in the 1930s when we created the unconstitutional monstrosity that is the modern executive branch. If you want to turn that back then I’m on board.

But if not then it must at least be democratically responsive. When republicans win the presidency—or a progressive or populist democrat—the 90% of the administrative state that’s comprised of Acela liberals should be asking how high to jump. Otherwise you have a system that’s not worth saving.

[dctoedt]

> The laws were broken in the 1930s when we created the unconstitutional monstrosity that is the modern executive branch

That's bibliolatry, directed to a long-obsolete interpretation of the Constitution and the role of the federal government. FDR was analogous to Copernicus and Kepler, rescuing the country from Ptolemaic interpretations of the Constitution that were based on outdated data sets. He pushed successfully for a pragmatic reinterpretation — not inconsistent with the text — that allowed effective federal government action to deal with a global crisis.

No, FDR's New Deal didn't end the Great Depression (that was done by World War II). But the New Deal did help hold off what could easily have turned into authoritarianism of the Huey Long variety.

https://en.wikipedia.org/wiki/Bibliolatry

[rayiner]

The "living constitution" angle doesn't get you anywhere. If we are going to "pragmatically reinterpret" the Constitution to allow the modern administrative state, that just makes it more exigent to "pragmatically reinterpret" the law to ensure effective presidential control over the administrative state. I'd start by reinterpreting the Hatch Act to allow prosecuting anyone in the government who "resists" policies such as DOGE and mass deportations.

[dctoedt]

> The "living constitution" angle doesn't get you anywhere.

Says who? The Constitution is in essence the basic operating manual for American national government. Conditions on the ground have changed — and we've learned more about the world — since 1787. It'd be unpragmatic (read: insane) to insist that the original modus operandi MUST stay the same forever and ever, just because that's how they did things in 1787, as long as the new M.O. can fairly be said not to be inconsistent with the constitutional text.

It doesn't help your case that Article V provides an amendment process: Nothing in the Constitution prohibits reinterpreting the existing language to accommodate new evidence and new insights, at least not as long as the reinterpretation doesn't do violence to the text.

"The executive power" in Article II is just as open to interpretation as anything. Interpreting that power as being subject to Congress's Article I authority is clearly well within the hash marks, to say nothing of the playing field as a whole.

Article I can fairly be read as allowing Congress to expand, and/or to cabin, presidential authority. That includes creating, and delegating power to, administrative agencies under general presidential supervision; that could include delegating expansive powers to agencies and perhaps limiting the president's ability to hire and fire agency personnel.

The "unitary executive" interpretation — with a president asserting the right to unilaterally disregard or revoke congressionally-enacted arrangements — is dangerous in the extreme. We've seen that in other countries, and we could well see the same thing happen here.

Decades ago, the head of the Reactor Department on my ship [the USS Enterprise] had a list on the office wall of Great Naval Quotes that we were forbidden to use. The #1 prohibited quote on that list was, "But we've always done it that way!" followed by #2, "But we've never done it that way!" Both of those are violated by using a bibliolatry-based approach to the Constitution as a purported justification for unilaterally up-ending longstanding practices — especially when, on the whole, those practices have worked passably well.

==========

> that just makes it more exigent to "pragmatically reinterpret" the law to ensure effective presidential control over the administrative state

That's clearly one of your ideological priors, but it wasn't handed down from Mount Sinai on stone tablets.

[rayiner]

> That's clearly one of your ideological priors

But the “living constitution” is nothing more than imposing one’s ideological priors onto the document. I happen to think the crisis of a permanent bureaucracy that is ideologically divergent from the population is far more “dangerous” than anything else the country faces. If we are going to “pragmatically reinterpret” the constitution, that’s the challenge that such interpretation needs to meet.

[dctoedt]

> But the “living constitution” is nothing more than imposing one’s ideological priors onto the document.

That overlooks a key distinction: An "ideological prior" that's proved to be supported by real-world evidence (i.e., experience) is no longer an ideological prior.

Analogously: Special- and general relativity were just theories in 1905 and 1915 (their respective publication dates). Over decades, real-world evidence proved that they were, in the main, correct — but we still don't treat either as a sacred, immutable text.

The unitary-executive view is an untested theory, an ideological prior. In contrast, our existing administrative state is supported by close to a century of real-world experience.

That's not to say that modifications aren't needed in the modern state. We don't want to make a golden calf of the granular details of FDR's or the Warren Court's approaches, any more than we want to enshrine the unitary-executive model or the Alito-Thomas perspective.

But in a country with some 340 million people that's been the source of the reasonably-successful Pax Americana, it's incredibly risky to go unilaterally f*cking around — it's the equivalent of a teenaged driver insisting that he can refuel his car and change the oil while driving 75 mph on a crowded freeway.