Ken wrote: ↑Fri Feb 03, 2023 3:56 pm
To elaborate more on why many of Trump's executive branch orders were illegal and tossed out by the incoming Biden Administration, I'll provide an example from NOAA with which I am familiar because I worked there.
First of all it should be understood that most executive branch power actually flows through Congress which authorizes the executive branch to implement all the various laws that it passes. More specifically it works like this:
1. The Constitution grants Congress the power to pass laws in a wide variety of areas such as interstate commerce.
2. Congress passes specific laws and orders specific agencies to implement such laws, often through regulations and sometimes through direct enforcement. Virtually every such law authorizes the Cabinet Secretary of each relevant agency to pass such regulations and conduct enforcement actions.
3. All Cabinet Secretaries must be confirmed by Congress so that Congress actually knows and approves of the Secretaries to which it is granting the power to make regulations.
4. Congress has further set out detailed chains of succession for each agency such that there is no current Secretary because one has resigned, died in office, been fired, etc. Every agency has an actual written chain of succession just like for the presidency so that there is always someone who can act with "secretarial authority" at all times. In 1998 Congress tightened up this process through the Federal Vacancies Reform Act:
https://www.gao.gov/legal/federal-vacancies-reform-act Basically each agency has to have a written and approved chain of command and order of succession and any time a cabinet secretary leaves office the next in command is automatically elevated to the position of Acting Secretary until a new nominee can be put before Congress for confirmation. And there are also deadlines so that an acting secretary can't serve forever. It is 90 days I think unless Congress is not in session then it is extended.
What Trump did in many cases was just toss out this whole process and appoint his own people as acting secretaries even though they were not within the established chain of command. And then let them stay indefinitely. He tried to do this with the Department of Homeland Security and the GAO told him that was not permissible. He did it anyway and then when Biden came in, he tossed out all the actions of the former acting secretaries during the last year of Trump because they were legally invalid:
https://www.gao.gov/products/b-332451
Let me give you a specific example. I worked in commercial fisheries management in Alaska. The law that authorizes the Federal government to manage commercial fisheries all around the Country is called the Magnuson-Stevens Act. And it specifically authorizes the Secretary of Commerce to issue fishing regulations (NOAA is part of Department of Commerce). The law specifically says:
(d) RESPONSIBILITY OF THE SECRETARY.—The Secretary shall have general responsibility to carry out any fishery management plan or amendment approved or prepared by him, in accordance with the provisions of this Act. The Secretary may promulgate such regulations, in accordance with section 553 of title 5, United States Code, as may be necessary to discharge such responsibility or to carry out any other provision of this Act.
So while different lower level staff people in different NOAA offices around the country actually draft fishing regulations (something I did), for them to be legally implemented and enforceable they have to be signed by the Secretary of Commerce (or his designee) and then published in the Federal Register and Code of Federal Regulations.
What Trump did in many cases was appoint acting secretaries and acting assistant secretaries to various different agencies who were people who were not legally entitled to hold those positions because they were coming in from the outside and were not part of the official chain of succession or chain of command for that agency, and were not confirmed by Congress. And these Trump people would come in and issue all kinds of orders and order their staff to write new regulations that they would sign. Things like setting aside environmental rules for mining in Alaska, or approving new dams in California that had not gone through all the required environmental review. And these new regulations would get published and appear as if they were new law. However because the person who actually signed them was NOT the Secretary of Commerce or EPA Administrator or whatever person Congress authorized to actually make such regulations, the courts were able to just toss them out. No need to go threw the whole long process of actually repealing them, they were just found to be invalid and torn up. They were no more valid than if you are I had just made up our own Federal regulations and signed them.
Now let's talk about the Department of Defense. Trump did the same thing in the Department of Defense. During his last year of office there was a whole musical chairs thing happening with various Trump loyalists being placed into various high level positions within the Department of Defense despite not being confirmed and not being part of the official chain of command or chain of succession. Trump did this on purpose in order to get his lackeys into positions of power for which they would almost certainly have been rejected for had they been submitted to Congress for confirmation because they were unqualified. So during the last months of the Trump Administration. After the election, Trump fired his confirmed Secretary of Defense Mark Esper and appointed Chris Miller as acting secretary.
https://en.wikipedia.org/wiki/Christopher_C._Miller and Chris Miller appointed various other Trump Loyalists like Kash Patel (former aid to Devin Nunes) into top assistant secretary positions along with some others despite the fact that none of them were legally entitled to hold those jobs. Trump just ignored the law to put them into place. And there was really no one around to tell him he couldn't.
So the real question during the last two months of the Trump Administration was this: If the Joint Chiefs of Staff receives an order through one of these acting secretaries of defense who are not legally seated in their positions, is that a legal order? It might actually be Trump's "will" that the order be carried out. But Trump doesn't actually write out and sign orders, he picks up the phone and tells one of his loyalists in the DOD to make it happen. Yes, Trump is the Commander in Chief. But he is not actually the one issuing the direct order. One of his people is. Someone who has no constitutional authority to even be in that position and give such an order.
The point being, when you go completely off the rails as Trump did, especially during his last months. It becomes increasingly difficult to sort out what authority he actually has and what process he must use to implement it. And whether a legal order some unconfirmed acting DOD assistant secretary hands to the Chairman of the Joint Chiefs is actually a legal constitutional order. When it is some environmental regulation that is easy enough for the courts do deal with. They just tear it up. But when it is a time-critical military order that is a completely different thing.
