By “at the moment,” you mean “in the 1930s when the Supreme Court bent over backward to uphold FDD’s administrative state, right?” When they effectively overruled the Supreme Court’s 1926 decision in Myers v. United States, right?

Because the text of the constitution says this: “The executive Power shall be vested in a President of the United States of America.” Show me how you get from that to executive agencies exercising executive power independent of the President.

"[The president] may require the Opinion, in writing, of the principal Officer in each of the executive Departments"

Could you please explain why that clause is there if the president can already threaten to fire anyone who doesn't comply with their orders?

> “The President may require the opinion in writing of the principal officer in each of the executive departments upon any subject relating to the duties of their respective offices.” This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office.

Note that this provision must be redundant even without a unitary executive. Because otherwise, the implication is the only thing the President can do with principal officers is to ask them for an opinion.

Some modern scholars think the provision, though functionally redundant, is there to address a dispute that arose during the debates about executive councils: https://www.yalejreg.com/nc/reconciling-the-unitary-executiv... (“Unsurprisingly, the issue of an executive council arose at the Philadelphia Convention. Several proposals to create a council of state or a privy council were offered. Some of the proposed councils would have provided advice to the President but would not have required that he follow it, whereas others might have required that he secure the consent of the council. But each of the proposals was rejected. Instead, the Convention took language from part of one of the executive council proposals – ‘he may require the written opinions of any one or more members” of the council – as a model for the Opinions Clause.’”).

So the clause is there not to describe what the principal officers must do, but what the President need not do. The President may but does not need to consult his principal officers before taking action.

> otherwise, the implication is the only thing the President can do with principal officers is to ask them for an opinion.

That's not at all the implication... how do you even reach that conclusion? The obvious implication is that the president can only do what he is legally permitted, which means he could do whatever Congress provides for in law, in addition to what's in the constitution. Because, you know, his job is to execute the law. And Congress and the constitution are the ones establishing the legal framework for agencies.

> This I consider as a mere redundancy in the plan; as the right for which it provides would result of itself from the office.

It's nice that Hamilton thought that, but what did those who wrote it think? It seems safe to assume they wrote it for a reason, not as fluff. Which brings us to...

> Some modern scholars think the provision, though functionally redundant, is there to address a dispute that arose during the debates about executive councils [...] the clause is there not to describe what the principal officers must do, but what the President need not do. The President may but does not need to consult his principal officers before taking action.

It's great some modern scholars think this, but this also isn't compelling. If that's what they wanted... they could and should have just said that directly, not left it as a historical puzzle for people to speculate about.

The constitution doesn’t list any other supervisory powers the president has over officers. So if the Opinions Clause isn’t redundant, Congress needs to spell out all other supervisory authority, down to something as little as asking for opinions.

That reading isn’t just inconsistent with the unitary executive view, it’s inconsistent with every other common view of how the executive works. It would not only mean that Congress can create independent agencies, but that all cabinet officers are independent by default. Nobody seriously thinks that’s true, but that’s the implication of the non-redundant reading of the Opinions Clause.

It’s true that the framers probably didn’t put a redundant power in there just for funsies. But it’s also true that drafters don’t hide elephants in molehills. Article II only mentions executive officers in passing. It would be very odd if the drafters meant to invest them with tremendous independent power only by implication.

No. "By default"? That's a really weird way to make this sound crazy when it simply isn't. Congress is the branch that creates the departments and creates the legal framework around them in the first place. The president faithfully executes the law. That's not unserious, that's literally the point of the whole system.

A realistic Congress is, generally, not going to pass an act establishing an entire department and somehow neglect to prescribe how the heads are appointed and removed. (!) If it did that for some reason, then yeah, the heads would "by default" be independent, until/unless Congress prescribed otherwise in the future. And... so what? Either that'd be deliberate -- in which case it's equivalent to explicitly prescribing their independence, so it makes no difference unless your real belief is that Congress can't even prescribe this explicitly -- or it would be the result of hundreds of people simultaneously goofing, in which case they can just... fix it by passing another act. Or they deliberately wanted to sow chaos or play games by leaving this unclear, in which case... what else do you expect. In that case it's up to the voters to vote them out, or for courts to rule something if this silly hypothetical ever happens.

All of which is to say: "by default" basically means nothing here. It feels like a pointless argument with an agenda. The idea that the "by default" scenario somehow means some clause was superfluous and deliberately added for funsies is the unserious take here.

For example, Congress can ban “unfair competition.” But it can leave it to the executive agency charged with enforcing the law to define rules for exactly what constitutes unfair competition. That’s permissible because deciding exactly what’s unfair reasonably falls within the scope of enforcement discretion.

Judicial review of executive actions is stronger and more frequent than its ever been. Congressional power of the purse is secure. And the REINS Act (not yet passed) would require Congress to approve major agency rules before they take effect

Which reality do you live in?

In my reality, POTUS is doing everything he can to grind down Congress's power of the purse.

He's actively pressuring Fed policy, which at its most extreme gives the executive a blank check as it can force the Fed to purchase treasuries, filling the executive's coffers directly.

At the same time, they're arguing that pocket rescissions give them the right to avoid spending any individual dollar they do not wish to spend, even if Congress has allocated it.

Tell me what gives you confidence that the power of the purse is secure?

And it hasn't been working well. DOGE failed, SCOTUS has not yet issued a final determination on pocket rescissions, and the Fed can only buy treasuries on the secondary market, meaning the bond market is in control. There is also the debt ceiling which requires Congress to raise it.

SCOTUS "hasn't issued a final determination" on almost any issue put in front of it in Trump 2. Yet they consistently land on "the administration can do what it wants while we delay actually ruling, even if several lower courts have ruled against this outcome after actually hearing the case at length."

The Fed's prohibition from buying Treasuries directly is only relevant if the FOMC is actually independent. If it's not, nothing prevents POTUS from saying "the Fed will buy $x in treasuries at $y," directing them to do so, and creating a clear arb opportunity for all the intermediary banks to buy and re-sell their slice.

Sure, that'd trigger a financial crisis, but that's kind of the whole problem with idiot demagogues: they trigger such crises as a matter of course.