The constitutional argument is ridiculous; we've really been frog boiled into a wildly different understanding of executive power than even the most monarchical Founders imagined. Article II sections 2 and 3 are short and grant almost no powers. Practically all executive power outside stuff like appointments and pardons derives from this clause: "he shall take Care that the Laws be faithfully executed". Nearly all governmental power resides in Congress, on purpose, as it's the most democratically responsive yet least efficient of the branches. For example, a lot of people probably think either Commerce or Treasury mint coins. Nope, constitution says that's Congress. People think State, or maybe Commerce negotiates trade treaties; nope Congress again. Post Office? Congress.

What this means is that the President executes Congress' will. Reading the Constitution, there's just no argument for anything else. You have to dig into subsequent history, acts of Congress, and Supreme Court decisions to reach the justifications for the wild increase of presidential power. I'm not saying this is bad per se, just that the Constitution argument is absolutely bankrupt and ahistorical: there was zero appetite for a powerful executive in the Continental Congress.

That's what's so radical about this EO: it's antithetical to the very founding of the US where we rebelled against a king and ultimately adopted a constitution with a very weak executive. It supplants the will of Congress with the will of the executive, undermining the separation of powers, plenary powers, and the very underpinnings of our government.

> It's not like this EO really changes the situation? Before this EO a department head would have the same choices and face the same risk of being fired.

No, this is completely false. The President doesn't have the authority to fire a department head for following a court order, and if they tried they would get sued and clearly lose, and be forced to reinstate the fired person, and other employees would follow this pattern.

With this EO, the President does get this exact authority, and the courts would be forced to side with the president in the matter of the firing, if the EO is allowed to stand by the SC.

> Who would they be accountable to if not the US President?

Accountability does not require absolute control. A subordinate official can be permitted (even mandated) to exercise independent judgement and still be accountable for mis-, mal-, and nonfeasance to a higher authority.

And this has, with different precise parameters, long been the statutory model governing the President’s relations with much of the executive branch, with different specific rules applicable to civil service employees generally, Inspectors-General and a few other specially-designated employees in regular departments, and independent agencies.

> I'm not sure we'd want to have an unelected executive agencies that is unaccountable to head of the executive branch. That just wouldn't even make sense.

Independent agencies, that execute their mission rather than the whims of one man (and are accountable to the law) don't make sense to you?

No, not at all. Who are they accountable to? Nobody?

Anyone who knows even US Civics 101 would recoil at such an idea.

Have you heard of the courts?

The president can settle any issues between their view, the agency head’s view, and the agency’s guiding laws, in the courts.

The courts are their specifically to settle disagreements.

That’s how the law works for agencies. That’s how the law works for all laws.

Three branches checking each other.

They are accountable to the courts, whose job it is to decide if they are faithfully fulfilling the laws laid out by Congress.

Sure, but that's true before and after this EO.

What I'm talking about is accountability for interpretation of the law.

Let's say the head of an agency decides their interpretation of the law is X, but the President thinks it's Y. You can't bring them to court because X and Y fall within the interpretation of law.

If agencies were not accountable to the President, you basically have an unelected/unaccountable (when it comes to policy within interpretation of the law) bureaucrat that the voters are unable to hold accountable.

With this EO, the voters can elect a President who can then direct the agency head to execute interpretation Y.

That seems like the more idea scenario?

The president names the agency heads, and their mandates expire roughly or exactly at the same time as the president's. That's more than enough control. The president can't and shouldn't then go and get into the weeds of specific policies that those agency heads then coordinate.

Also, settling the ultimate interpretation of the law is indeed the prerogative of the courts. This has actually changed quite recently in some ways - the SC has recently struck down the Chevron Doctrine, which held that the courts would defer to the executive when a law could be interpreted in different ways. So right now if Congress passes a law that says "the EPA shall insure that American citizens have potable drinking water", it is ultimately up to the courts to decide if the level of lead in water set by the EPA makes the water potable or not.

But however you slice it, the president shouldn't be the one to decide if the level of lead in water being enforced by the EPA is too little or too much. If the head of the EPA and the courts believe that a certain level is good enough, than that's that. After all, the president chose this head of the EPA. The next president can choose another head.

It's to be seen how "interpretation" is interpreted, if the president can declare it doesn't mean what it clearly does.

If a law is too much subject to interpretation, anyhow, the congress, which is the branch deputed at making the law, can change it at any time.

And most of all, I'm not sure in the US case, but when there are interpretation disputes you typically can have courts declare what's the correct interpretation.

> Let's say the head of an agency decides their interpretation of the law is X, but the President thinks it's Y. You can't bring them to court because X and Y fall within the interpretation of law.

Uh, who is “you” in this scenario? Because for most reasonable values, yes, you can.

Differing interpretations of the law by different executive branch officers have never stopped outside parties from suing those executive officers over their execution of the law, with the courts ultimately deciding the correct interpretation (sometimes with some degree of deference, but never absolute, to executive interpretations.)

Again, they're accountable to the laws that regulate them and the judicial system, in their every action.

It's something extremely common in normal democracies, and if it's really antithetical to US civics, that's just another proof that the US were only a pretence of a democratic system.

Also, they're run by people appointed by elected officials, just like any other government agency. They serve according to laws passed by the people's representatives and signed by the president, and they can be removed from their positions according to the law, as well. The theory that all executive authority must stem from the president's will and be subject to his whim is novel, monarchical, and highly dangerous.

And those laws make them accountable in explicitly specified manner to the President, who is empowered to remove them, but only for enumerated causes.

If it's so they're hardly independent agencies, and the point of this executive order is indeed to eliminate the independence.

No because "independent agency" just mean the agency was established by law, with a specific mandate and regulations that the President can't independently change.

It doesn't mean the agency isn't a part of the Executive branch with the President at it's head and it doesn't mean the President can't fire them for specific reasons.

Again, if the president can have a strong influence on them, they're not independent, however they might get called

Congress

> The President, EOs and the exective branch are not immune from court decisions.

Sure they are, if they want to be. Federal courts don't have their own enforcement arm. Even if they find specific officials in contempt of court, and order them arrested, Trump can simply order the US Marshals service to just... not arrest them.

Under this EO he could even choose to “interpret the law” such that it was illegal for the Marshal’s service to arrest executive branch officials without explicit Presidential permission (and this flows naturally from the same version of unitary executive theory as this EOs rule on legal interpration itself relies on), and it would not only be a violation of this order for them to carry out the arrest, but it would be a violation of the order for anyone in the executive branch to disagree that that was the law.

> Trump can simply order the US Marshals service to just... not arrest them.

Yes. Or even more perniciously, just note the arrests have been put on the long “to do list”, to be studied fully, and carried out with special care, all of which takes time…

Because of course the arrest order is being taken seriously and the courts decisions respected.