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Comment by giantg2 | Hacker News Reader

If that were the case, then SCOTUS would just invalidate the EO.

SCOTUS can't just "invalidate" an Executive Order like how they can invalidate an unconstitutional law (judicial review). The court system doesn't work like that. No one would have standing to bring such a case, nor does the judicial branch have authority over executive branch internal communications.

What could happen is that a federal agency follows an EO in a manner contrary to law, and that action causes some sort of harm or loss to a person. That injured party could then bring a legal action against the agency and the Court could order the agency to cease that action. But it still wouldn't invalidate the EO.

EOs are subject to judicial review. Whether it's a law or an EO someone typically needs standing to challenge it. Although, you can even have Congress create a resolution allowing that. Frankly, there's nothing wrong with the wording of the current EO. What is more likely to be challenged are any rules that come from that EO that run counter to the law.

"But it still wouldn't invalidate the EO." Truman and the steel mills would disgree.

And the President’s order compels them to ignore that contradictory opinion.

Where does it say that? What other EOs explicitly say that SCOTUS can override them?

"No employee of the executive branch acting in their official capacity may advance an interpretation of the law as the position of the United States that contravenes the President or the Attorney General’s opinion on a matter of law"

Any employee obeying a SCOTUS ruling is in violation of this EO, unless the President agrees to that ruling.

No EO may say that SCOTUS can override them, but no other EO blocks federal employees from obeying SCOTUS.

"Any employee obeying a SCOTUS ruling is in violation of this EO, unless the President agrees to that ruling."

You forget the entire framework for EOs. No EO has "except when a court says otherwise". The EOs are subject to checks and balances, such as judicial review. If the EO exceeds its authority (not based on congressional or constitutional means) then it won't be valid. Meaning you can't grant yourself powers that you don't have the authority to grant under the framework. There's case law you can go look at for a history on it.

You should still be very alarmed by the President trying to claim that authority.

Sure, EOs have been a scourge for decades, not just this one. They are commonly used to contradict what is written in law or extending their powers, such as choosing not to enforce. This is nothing new.

You forget the VPOTUS is openly doubting the courts’ authority to rule on these things.

https://www.bbc.com/news/articles/c4gx3j5k63xo.amp

A court can't issue an order to an army to surrender. A court can't force the president to nominate someone to be a federal judge.

There are some powers the executive has that can't be overruled by the courts. Now the question is - what?

In the case of OEs, there's a long history that they are subject to judicial powers if they are not based in law or constitutional powers. In the case of this specific EO, it's likely to stand but the rules coming out of it are likely to be challenged if they overstep the authority in law.

The examples in that article are legitimate examples. The more concerning part in that article is the suggestion of not following court rulings such as the myth of Andrew Jackson's SCOTUS quote.

With enough gumption, audacity, charm, ... (or str, dex, int, wis...?) a USA president, say, could do whatever they wanted, with impunity; we all do whatever we choose, caring to various degrees about the potential consequences.

Anyone can do whatever they want regardless of the rules. However, presidents do not have impunity. Presidents and their EOs can be held accountable by Congress and the courts.

You keep arguing the same point in this thread. So let’s make it simple.

If Congress or the SCOTUS says do A and the President says do B then the Executive Branch are required to do B.

That’s an unprecedented situation.

"That’s an unprecedented situation."

It's simply untrue is what it is. EOs are subject to judicial review and are only valid if there's a congressional or constitutional basis. You can't grant yourself extra powers outside of the existing framework, which the EO doesn't even claim to do. Again, other EOs don't have the framework enumerated in them and have been found to be invalid. There's plenty of case law one can look at.

> EOs are subject to judicial review and are only valid if there's a congressional or constitutional basis

This is just nonsense.

Trump, for example, recently signed an EO to end the use of paper straws.

Where is your justification that there is a valid congressional or constitutional basis for this ? Of course there isn’t. Executive Orders allow the President to interpret existing laws as they see fit. Even in ways they were never intended to be interpreted.

Executive Orders were meant to give instructions to the executive branch on how to “faithfully execute the law”. They turned into — through several presidents, a way to bind the executive branch to a particular way of interpreting the law —- or in some cases —- making law out of whole cloth.

Trump is continuing this trend, and while we should all be concerned as to where he takes it, congress and the judiciary share the blame for not reigning in prior presidents.

previous presidents didn't have to worry as much about this before 8 months ago when SCOTUS declared presidential immunity. The only ones able to abuse this power was a few months of Biden (who said he wouldn't) and now, trump 47 after a month stretching it to a thin paste.

Please educate yourself.

https://www.fjc.gov/history/administration/judicial-review-e...

You seem to be confused about the basics of constitutional law and the separation of powers. EOs are not at all subject to judicial review. Those are simply communications within the executive branch, like a memo. There is literally nothing to review and no case law supports your claim. But the judiciary does have the authority to issue orders regarding actions taken by federal employees and agencies if they do something contrary to federal law — regardless of whether those actions were motivated by an EO or anything else.

"You seem to be confused about the basics of constitutional law and the separation of powers. EOs are not at all subject to judicial review."

Funny, I could say the same about you...

https://www.fjc.gov/history/administration/judicial-review-e...

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