Comment by roenxi | Hacker News Reader

Comment by roenxi | Hacker News Reader

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> Why is this EO being issued?

It explains itself in Section 1; pretty much all the above the fold material is on exactly that topic. Trump & friends are taking the interpretation that the US presidential election is a vote on how the executive government is to be run.

As an extension of that, they're pulling power away from the unelected bureaucracy back towards the office of president - because a vote can't change the direction of the executive if parts of it are on autopilot independently of the president.

> What problem, other than judicial review, does it solve for the executive branch?

It doesn't change anything about judicial review. The thing they're targeting is parts of the executive acting independently of the president; which given the behaviour of the intelligence services is probably targeted at them but might be aimed at any of the bureaucrats.

Whether it is a good idea long term is a complex question though. This looks like an area where the separation of powers gets to murky territory. It is hard to have separation of powers given how much of it has been given to the president over the last century - the small-government strategy was a better approach than what the US has set up here.

> because a vote can't change the direction of the executive if parts of it are on autopilot independently of the president.

That's only mildly true, and the belief of micromanagers everywhere. Ultimately, you need to set an overall direction and then let people execute within that framework, or you're going to get something that's badly run and slow as molasses.

With a nuanced interpretation, this EO even might make some amount of sense (a bit more overview/stricter guidelines). But wherever you stand politically, you can't accuse the current administration to have a sense of nuance.

And, of course, if you want to assume the worst, it's fair to point out that the EO removes all independence without having to spell out any guidelines, which means a world without guidelines and on-a-whim decisions is well possible. That's not a good thing for a regulatory environment. Or a democracy.

And that's the biggest problem - because even if the current administration has only noble goals (and I really don't want to debate this either way, let's skip that comment stream), this XO is massively ripe for abuse for people with non-noble intentions.

You're getting downvoted for basically saying 'you know how command economies don't work? That model also doesn't work as a national governmental system' by the people who claim to hate command economies.

I think this is a really good explanation of the underlying problem.

The example that is top of mind to me, because it hits pretty close to home, is stuff like the Environmental Protection Act or the Marine Mammal Protection Act. The laws direct designated agencies to come up with rules to accomplish whatever the act is meant to do, but it does not get into specifics, because lawmakers rightly recognized that they are neither environmental scientists, nor economists of the industries those acts regulate. So if an administration says "holding hands and singing Kumbaya in the commissary is sufficient to accomplish the goals of our mandating legislation", and neither the legislature nor the courts are unwilling to call the executive on it, that's the ball game.

> lawmakers rightly recognized that they are neither environmental scientists, nor economists of the industries those acts regulate

The problem that this EO may be trying to address is that environmental scientists and economists aren't any more above moral reproach as presidents or legislators. Therefore, the status quo was such that if some unelected career civil servant working at an agency decides to interpret stuff under their expertise in one way or another that may be wrong, there was little possibility of redress on the part of the people.

Vote for a different president? No matter; career civil servants can't be fired because the president isn't king! Vote for a different Congressperson? No matter; they aren't experts so they'll defer to the civil servants! And therein lies the "deep state".

The correct answer, in my opinion, is that lawmakers need to sit down with the domain experts and write specific legislation with that expert input. That way, policy remains accountable to the people, who are the ultimate legitimate source of power.

I disagree categorically with this. Yes, in principle, the court cases would be easier if the law was written with the complete regulations in place to begin with. However, facts on the ground change faster than the legislature is able to move at the best of times.

It has always been the case that you or I could sue to overturn a rule from the EPA or the BATF or the FDA. At which time, you assemble subject matter experts to buttress whatever claim you might have, and the regulatory bodies present their experts and then a judge and jury decides. It’s pretty far from perfect, and it has some of the same flaws as the legislative approach, but the important strength is that national defense spending policy is not held up on where the sustainability of dolphin bycatch for tuna lays: 15 or 16 dolphins killed per 100,000 tons of tuna harvested.

I think the underlying premise to requiring the legislature draft all regulations is “the legislature should not be making rules about things they don’t understand”. But 1) that sure as hell hasn’t slowed them down before, and 2) the fact that e.g. airplanes are very complicated is why we want regulations around their manufacture and operation in the first place. It’s confusing to me that the conclusion folks seem to draw here instead is “it’s too complex for the legislature to engage with in a timely fashion, so I guess we just have to accept all these plane crashes”.

Useful redress for a bureaucracy taking lawful actions within the guidelines specified is never "let's fire the civil servant". They're not out to enact their agenda, they're trying their level best to achieve the goals set.

(Same way firing L3s doesn't help with execs setting a bad direction)

If that work is nowhere close to the perceived will of the people (again, please, let's not debate "what's the actual will though"), it's a failure of executive and legislative to create clarity.

You're right, ultimately this is about legislative and/or executive having conversations with experts to set the right goals and guidelines.

But you'll need it to be a conversation, and you need to leave room for independent decisions within a larger framework. The EO does squash all discussion or feedback down to "president's always right, ask the president". This makes redress harder, not easier.

Centralized command and control looks appealing because it simplifies a lot of things, but it breaks down because it assumes a single person has all the answers.

And this particular EO makes it worse, because it also directs agencies to ignore judicial decisions unless the president says so. Maybe. The writing's very unclear: "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, including but not limited to the issuance of regulations, guidance, and positions advanced in litigation, unless authorized to do so by the President or in writing by the Attorney General."

What's "positions advanced in litigation"? Does it include injunctions/restraining orders? If it does, there is no judicial redress at all. Which means accountability is reduced, not increased.

I don't disagree with you that there need to be limits to regulatory authority of a bureaucracy. But this EO is very much not it.

There was nothing stopping Congress from getting expert input from environmental scientists and economists up front, and then incorporate that input directly into legislation. They didn't have to delegate all of their power to the executive branch.

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