 Good afternoon, everyone, and welcome to critical conversations exploring the separation of powers in the state of American democracy with the National Archives. My name is Rachel Johnson, and I'm part of the public programs team here at Crystal Bridges Museum of American Art in Bentonville, Arkansas. To begin, I'd like to state our Indigenous Peoples acknowledgement. At Crystal Bridges in the momentary, we recognize our role as settlers and guests in the Northwest Arkansas region. We acknowledge the Cato, Quapa, and Osage, as well as the many Indigenous caretakers of this land and water. We appreciate the enduring influence of the vibrant, diverse, and contemporary cultures of Indigenous peoples. We're conscious of the role colonization that museums have played. As cultural institutions, we have a responsibility to engage in dismaying of historic and systemic invisibility of Indigenous peoples past, present, and future. We choose to intentionally hold ourselves accountable to appropriate conversation, representation, connection, and education to facilitate a space of measurable change. I would also like to extend a thank you to all of our sponsors of Learning and Engagement Programming for our exhibit, We the People, The Radical Notion of Democracy. Thank you to our sponsors. And finally, I'm pleased to greet our panelists and program partners this afternoon, and I would like to now welcome Lee Glazer from the National Archives to say a few words. Thank you, Rachel, and many thanks as well to the Crystal Bridges Museum of American Art for inviting us to partner with you on this important topic today. Greetings from the National Archives flagship building in Washington, D.C., which sits on the ancestral lands of the Anacot tank peoples. I'm Lee Glazer, Director of Museum Programs, and it's my pleasure to welcome all of you to today's discussion, Separation of Powers and the State of American Democracy. The National Archives is home to countless documents that tell the history of our nation through government records, including the Declaration of Independence, the U.S. Constitution, and the Bill of Rights. These three documents from the late 18th century have endured not as historical artifacts only, but as vital articulations of civic ideals. They've been foundational to the structure of our government for nearly 250 years and have survived through many moments of crisis. The framers of the Constitution believe that a separation of powers among the executive, legislative, and judicial branches would ensure accountability and keep anti-democratic tendencies in check. Today's panel of constitutional scholars will discuss how this principle has been tested and what they believe is needed to keep our democracy going. So it's my pleasure now to welcome our distinguished panel. Our moderator is William Howell, Sidney Stein Professor in American Politics at the University of Chicago's Harris School of Public Policy, Chair of the Department of Political Science, and Director of the Center for Effective Government. Joining William as panelists today are Elizabeth B. Widra, President of the Constitutional Accountability Center, Aziz Hope, the Frank and Bernice J. Greenberg Professor of Law at the University of Chicago, and author of How to Save a Constitutional Democracy, and John Michaels, Professor of Law at UCLA, and author of Constitutional Coup, Privatization's Threat to the American Republic. Now just a little bit of housekeeping if you have questions for our speakers and I'm sure you will. Please put them in the chat as they go along and the speakers will address those questions at the end of today's program. And so now it's my pleasure to turn it over to our illustrious panel. Thank you, Lee, and thank you, Rachel, both for the kind introduction and for bringing us together to talk about this important topic. This is clearly a time of heightened anxiety about the health of our democracy and a lot of concern about what might be done to shore up our democracy. And in attending to such concerns, attention naturally shifts towards the design of our political institutions. And in particular, the separation of powers, which to my mind is the defining feature, not just A, but the defining feature of our system of government. It shifts our attention to matters of institutional design. We're going to be talking about institutions, what they are and how they interact with one another. But to kick things off, I think it might be helpful to just kind of level set and get a sense of what do we mean by what is a definition or definitions of separation of powers. And Aziz, can you help us in this regard? When we talk about separation of powers, what exactly are we talking about? I think it's helpful to start by noticing that the separation of powers is a term that doesn't refer just to one particular quite specific arrangement of governance. Rather, it's best to think about the separation of powers as a broad intellectual move in the history of liberalism. Liberalism is a political philosophy that dates back at least to the 17th century. The separation of powers emerges in the late 1600s and early 1700s as an idea about how to respond to the problem of concentrated power in the early modern state. This is a problem that's noticed first and most importantly by the British, the English thinker, excuse me, John Locke and the French theorist, the Baron de Montesquieu. Both Locke and Montesquieu identify a common idea that is the root of what we now call the separation of powers. And that root is the notion that one way of dealing with the threat of centralized power in the form of the state being abused is to fragment that state. Now, Locke and Montesquieu have different ideas about how the state ought to be fragmented. Both of them looked to what was then the English constitutionism model. Locke drew a distinction between executive, legislative and what he called federative power. In contrast, Montesquieu drew a distinction between legislative and executive power and was particularly attentive to the importance of internally dividing legislative power. Both Locke and Montesquieu provide points of reference for the American drafters of the 1787 constitution. And it's important to see that the ways in which those earlier models or ideas can be translated into a new context such as the America of 1787 will turn out to be ambiguous and plural. Today it's worth saying that there are still multiple strands of conversation about the separation of powers. For example, my sense is that when political scientists like Professor Howell talk about the separation of powers, they actually mean something different from what lawyers like Professor Michaels and I mean. The political scientists are often concerned about system level distinctions between parliamentary systems and presidential systems. The lawyers are often concerned at a more micro level and a more granular level about the specific allocation of decisional authority or lawmaking authority between branches of our American government. So there are still today multiple not entirely consistent conversations about the separation of powers going on. And we ought to be careful about the tendency, which is certainly when lawyers talk is prevalent, of consciously or unconsciously switching courses between these different strands of conversation without quite being clear which separation of powers we mean. That's super helpful. So let's try to keep that in mind as we proceed over the next 50 minutes or so. I mean, you've identified a number of things we should be keeping in mind. We talked about separation of powers. We're talking about separation, the fragmentation of authority. You could then immediately think about, well, how far apart, how fragmented? What's the amount of distance between the various units? You've pointed towards the fact that there's been a long standing debates about what those units ought to be and what kind of functionalist role they ought to perform in thinking about legislative versus executive authority. And then ongoing debates. This is about what the purposes of separation of powers are and how we ought to understand them. To bring it home here in the U.S. context, it probably makes sense to think about the constituent elements of our separation of powers, the first three articles of the Constitution, the legislative, executive and judicial. Elizabeth, if you wanted to jump in though, I can see it. Yes, I did. Thank you. Please. I also wanted to point out that I am also a lawyer. Yes. I'm a practicing lawyer. I practice constitutional law. The, you know, one thing that I would just add to what Aziz laid out for us is in the American contribution to separation of powers, you know, adding to, although I think this was a little bit present in Montesquieu, but certainly adding to what Locke laid out, is that most important check and that most important source of power, which is the people. And so while, you know, and Locke, the king was still involved, you know, in our version of separation of powers, all of this ultimately stems from the power of the people on that, I think is the important and at that point in time, relatively unique American contribution to the basic and yes, often vague concept of separation of powers. Right. So where does authority ultimately lie? It may lie in the people, but then there's this vestment of authority in a government. And then how do we ensure that the government doesn't then use that vested authority in order to violate individual liberties and the like separation of powers is part of an answer, an important part of an answer. It's hard to understand the separation of powers without understanding the political incentives of the political actors in their various stations of government. Both in defining, separation of powers, both shapes how they act, but they also play a role in defining what the separation of powers looks like. I mean, the arrows point in both direction. And it might be worth taking some time, I think for us to kind of go through the various branches of government and to start with the first branch, Congress, and to think about, you know, how do separation of powers shape the behavior of legislatures and how in turn do the actions that legislatures take in turn sort of redefine what the separation of powers looks like. And John, could you help us in this regard? This is particularly interesting at a time as we have now, wherein you see huge levels of polarization between two major parties and bare majorities being held by anyone. We've seen this in the most recent election. How those factors figure into the relationship between legislatures and this larger system of separated powers? Yeah, so I'd be happy to. And I just want to pick up on a couple of quick notes that were mentioned. One is kind of marshaling the notion that the Constitution is ours. It's meant for the people it derives from our power. And sometimes that is quite liberating and quite democratizing to think of it that way. But sometimes it's marshaled in ways that are a little bit more complicated, particularly by courts that say we need to allocate power here because that best represents the interest or the proximity to the people. And those are often contested terms. And I think diving into Congress particularly will give us an opportunity to think about that. And then I also hope we can circle back at some point to talk about marshaling history and how important we should think about history, given when that was written and how it resonates or doesn't resonate with us today. So Congress is the first branch. And I think some people give a lot of weight to it being the first branch is the people's branch. And what does that mean? It is the folks who are closest to us, particularly the House of Representatives at the time of the founding. It was understood that many people would know a member of Congress and that they would entrust in their state legislatures the responsibility to pick the United States senators. So there was a sense of closeness and if not familiarity, a localism rooted in the community. And I think we have to consider whether that remains so today. But it certainly was the case that we think of the House in particular that way. And that's why, for instance, spending bills are supposed to originate with the House. But I think it's important to recognize that Congress doesn't necessarily, not that the president does, but Congress doesn't necessarily accurately or fully capture the kind of pulse of the people at any given moment. We are anyone familiar with the kind of debates and arguments over the last many years have been attuned to notions of gerrymandering where districts are misshapen or complicated. There's a complicated design in order to protect certain incumbents to reach a certain demographic design. Campaign finance also distorts the way in which members of Congress are presented and elected. We are currently in a period of active campaigns of voter suppression that makes it harder for folks to vote. And we're kind of chronically dealing with the fact that the Senate accurately represents the equality of states but doesn't accurately represent the equality of the people. So as a Californian, I have two senators, people from Wyoming, which I believe is something to the scale of like 70 or 80 times smaller in population-wise than the Californians has the exact same number of representatives. And then if we want to think about constituent parts that are ignored, the District of Columbia obviously comes to mind and other folks may want to consider places like Puerto Rico as well. Okay, so it is the people's branch and it isn't the people's branch in the ways that I think I've just discussed. Now, Congress has two principal roles if we think about it. One is to do its legislative responsibilities. That's what's designed, supposed to make laws. It's supposed to appropriate funds for the executive branch to use. And then it's supposed to conduct oversight. And in this period of hyperpolarization and hyperpartisanship, both of those become quite complicated. And so I just want to think for a second and I'm going to stop because it'll probably just keep more thinking on other folks' part. But there's not so much cross-partisan cooperation in this moment. Now maybe the really tight elections in the House where we have maybe it's 218, maybe it's 219 Republicans versus 217 or 216 Democrats provide some space for cross-coalition governing. Or maybe things are even more fractured and more, I don't necessarily want to say dysfunctional, but internally paralyzed. That is very hard for the people's branch to really do the people's work in a meaningful way. And I think this is, whether it's a pervasive problem or an intrinsic problem or it's a fleeting problem, it's something we need to grapple with in this particular moment where the country is really in a particularly challenging, I would say, perilous moment. And we could just think about the House, maybe it's 8,000 votes, maybe it's 10,000 votes could have determined whether we had a Democratic House. And with that, with maybe a full 51 members of the Democratic Party in the Senate, there could have been a push for voting rights reform, reform of the courts, maybe even a protection of abortion rights. Or on the other hand, we could get two years of actively investigating this administration, maybe, and also perhaps fishing exhibitions or kind of rabble rousing, we might say, as folks may fear that someone like Jim Jordan, who is known to be more of a, let's say, a bombastic member of Congress, had said that if he gets the gavel for the judiciary committee, he would consider holding impeachment hearings or investigations into the president's family. So that we're a country of 350 million people or maybe more. And if you look around, maybe 8,000 votes, maybe one court decision on whether a particular district was drawn the right way could really shape the trajectory of this nation for a long time. Which has implications then for the representation of people's interest within Congress, changes the internal dynamics of Congress. But as it relates to separation of powers, it also, to the extent that we see greater polarization between the parties, it creates a greater cleavage across the various branches of government. I mean, you identified lawmaking and oversight, both those implicate the second branch of government. And Elizabeth, I'd like to turn to you to talk to, you know, or have us organize our thinking about it. Which is, I think, when we think about threats to democracy, I think more than a few people point towards the presidency is being the potential tip of the spear. And if we think about the unwinding of democracy or the accretion of authority within one branch of government, there was talk at the nation's founding of, you know, demagoguery within the first branch. But boy, our attention has shifted to the second. How are we to think about presidential power, the presidency, presidential politics and separation of powers? Yeah, thank you so much. I think that, you know, if we think just at a fundamental level, you know, the Constitution lays out an article one, two and three, the powers for the legislative branch, which John just went through article two deals with the executive vested in the president. And then of course we'll get to article three, the judiciary. And, you know, I think, which we can talk about more later, I think if you talked to the founders, if they would have, you know, thought which branch would be the most kind of energetic. The most active, perhaps, I wouldn't say the most important, but maybe the primary power of policy, they would have thought that that would be the legislative branch. I think if you ask most Americans now, they think about the president, most Americans know more about the president of the United States than they do about probably even their own member of Congress, much less Congress as a whole. And so I think in our minds, and we can talk about whether it's true in reality, the president's power, the president in that separation of powers is kind of at the top of the, you know, pyramid. In terms of actual powers given in the Constitution, you know, that's not necessary if you just read the document if you knew nothing about how things worked on the ground and just read the document. You know, you might not think that the president would be that person at the top of the pyramid because you look at everything that Congress has listed out. And then of course at the end, the necessary and proper authority to not just enforce Congress's own powers, but all powers vested in the American government, you'd think Congress would be the one that people are focused on. I think for many of us today, it's the president and one reason why I think that is so and it gets to kind of that fundamental threshold question of well, what do we mean by separation of powers and it is a rather vague concept that gets filled up by how we and our elected leaders choose to fill it up. And when you end up with a legislative branch that, you know, as John said, for many reasons, whether it's the way that the Senate now is arguably anti-democratic and at the very least kind of democratically dysfunctional in the way that it represents American people, or it's partisan gridlock, or it's the way that voter suppression works. If you think about, you know, the legislative branches being dysfunctional, then the branches that don't need to cross aisles that don't need to necessarily go through the legislative process and convince other people to vote for you, so the executive can be more energetic. And so I think, you know, that is in some ways why many of us certainly in my lifetime, I think of the president as kind of being more energetic and sort of enacting policies. And I think, you know, would not to get too deep into it, but I think that also comes from the development of the administrative state, you know, with congressional delegation of authority to act on all sorts of questions that a modern American society needs to face. And the way in which the executive branch, not just the president, but the executive headed by the president deals with those problems. It does certainly look to us today like the president is the one in this balance of powers that maybe has much more power. Of course, we're seeing the judicial branch, which I know we're going to talk about next, in some ways, but a stop to that. So I want to come back to the administrative state. It's hugely interesting and hugely important. You've identified, though, something crucial, I think, to our understanding, Elizabeth, which is that when we think about power and where it's vested, as soon as we recognize that the ability of one branch of government depends upon and is crucially defined by the actions of other branches of government, then that gridlock has taken hold in the first branch, opens up opportunities for the second branch, for the president to step in and claim all kinds of authority. And so their fates are linked. They're not aligned, but they're linked in really important ways. For sure. I mean, just to take an issue that was very much and still is very much in the national debate, immigration reform. I think, as President Obama said many, many times, he wanted Congress to go and have comprehensive immigration reform. And that was certainly what he was advocating for on the public stage. And then when Congress wasn't able to do that, then with the authority that he'd already been delegated in the immigration laws, he tried to do as much as he can. But that's exactly your point. If a branch doesn't act, then we can see that vacuum either being willingly filled by another branch, maybe eagerly filled, but maybe sometimes as perhaps in the instance of immigration reform, not so eagerly filled by another branch, in this case, the president. But certainly if someone has to act and one branch isn't, then that is a place where the president can step in. Sometimes for good, sometimes very much for ill. And, you know, part of the design was that you would have these checks and balances. But if one branch is not really capable of being in that balance, then you get out of balance. Yeah. And that's a problem. Yeah. The checks and balances don't work through themselves. They work through the initiative of individuals and parties. And if those individuals and parties can't get their act together, well, then that opens up opportunity for presidents to exercise power and then to push outwards on the boundaries of their power. Presidents or courts, I would add. Or courts. Here we go. Exactly. So the courts are interesting because courts have, I mean, judges and justices, they have politically ambitions of their own. That's for short, true. But they also play a crucial role in adjudicating disputes about what the appropriate boundaries of authority are, the conditions into which one branch of government might be able to claim authority that sits elsewhere, or the willingness of them to approve, say, congressional delegations of broad authority. Aziz, help us think through the courts. What role do courts play in protecting the separation of powers, in defining them? How do you think about them? Sure. So just before I do that, let me apologize to Elizabeth for leaving her off. I realize that that's a particularly pernicious thing to do when there are three guys talking. And one of the three guys, like, refers to the other two and fails to mention the woman who's part of the panel. That's a, I want to recognize that as a particularly obnoxious thing. So what I was, here's my weak excuse is that what I was referring to were tendencies within scholarship. So what I should not have said lawyers, I should have said professors in law schools versus professors and political scientists, science departments, but that's a lame and not not it's not meant as an excuse. So sorry. The role of courts in the separation of powers is, again, not a static thing. Again, we can see this by going back to the progenators of the idea that fragmentation in government was beneficial because it elicited a species of political liberty, Locke and Montesquieu. Locke does not have a role for the courts in the separation of powers. Courts are embedded in the British constitution within the legislative branch until quite recently, the highest court of at least the English polity was embedded within the House of Lords. Montesquieu also, although he did think courts were important, had a very different conception of courts. Montesquieu himself was a judge in a French court called a parlement. But parliaments did not play the role that courts, as we are familiar with that play in the French policy, rather they were akin to many conventions that relayed complaints from localities, far-flung localities, to the king and the court in the side. It's a very, very different model of what it is that a court does that's hovering in the background for Montesquieu, given his professional life, than what we are familiar with today. When we turn to the American context, the role that courts have played has dramatically changed over the last 230 years. We see this by noticing that under the terms of the 1787 constitution, the only national court that has to exist is the Supreme Court. And the Supreme Court, by the text of the constitution, only needs to have one person appointed to it. Other than that, the existence of a judicial system is wholly at the discretion of Congress. Indeed, the federal court system at the beginning of the 19th century is extraordinarily weak. It is not, by any stretch of the imagination, a co-equal actor to Congress or the executive branch. And to pick up on a point that Elizabeth and Will have made, the way that the court becomes powerful, the way that it accrues functional authority through new statutes that expand the court, that add to its power, which is called jurisdiction, that give it new resources in terms of administrative capacity, personnel and powers. The way that all of that happens is through the conscious decision of different political coalitions who gain national power at different points in American history, and decide that there is some policy that can be pursued successfully through the courts, but that is very hard to pursue directly through Congress and the executive branch. Courts over time gain power through legislation. Legislation is not passed because of fidelity to some abstract good, say, legality or judicial independence. Legislation is enacted because it advances the immediate interests of a national political coalition. The best example of this is the Republican coalition in the 1870s, which dramatically expands the number and the reach of federal courts, in part because it advances their vision of a commercial rather than an agricultural republic. So today we have a court system, which is much more powerful than it was in, let's say, 1800, but that has a structure of appointment, a structure of jurisdictional change and recalibration that flows through the national political institutions that are, as we've already discussed, highly partisan and deeply polarized. The pressure to use the political appointment mechanism for the judiciary to appoint judges who are capable of achieving policy goals that cannot be directly achieved through the national elective branches is therefore immense. And while it is true that that pressure has been manifested, particularly at the level of the Supreme Court, more on the Republican side of the aisle than the Democratic side of the aisle, this is largely because it has been Republicans rather than Democrats that have had the lion's share of opportunities to make appointments to the court since the beginning of the 1970s. It is good to remember that our courts, our Supreme Court has had a majority appointed by Republican presidents since 1970. That is 50 years in which one party has exercised the whip hand with respect to Supreme Court appointments. So when we think about the roles that courts play, and I think there are two, there's one in addition to what we'll identify, we need to keep in mind that the role of courts is itself a function of not just our institutional arrangements, our separation of powers, our decisions, the decisions that are embodied in the constitutional text about appointments. They're also a function of the way that that institutional architecture interacts with ambient social and political conditions, conditions like hyperpolarization. All that said, let me tee off maybe the next stage of our discussion by identifying the two ways in which the court plausibly plays a role, at least at a very abstract level with respect to the separation of powers. The first is, as Will said, the court resolves ambiguities. The text is not complete. For example, the text of the Constitution says nothing about who has the power to remove officials within the executive branch below the president, arguably. And the court has stepped into that breach of resolving ambiguities. The second, and I think this is a really important but occasionally overlooked aspect of the separation of powers that gets much more attention in the British constitutional tradition, is the idea that the authority that an actor within the executive branch has, particularly when they are using physical violence, particularly when they are using coercion, is only bound by law if that officer is subject to judicial oversight on the same terms as any other person, whether they are an official or not. This is an idea associated with Alfred Dicey, who's an important constitutional figure in the British tradition, and it's associated with the idea of the rule of law. But the rule of law here means the appropriate relationship between executive action and what the legislative branches authorize. And that I think is a distinct and important function that courts are supposed to play quite apart from their role in resolving ambiguities in the overall structure of the Constitution. Courts are super interesting here. They sit in this constitutional order apart from the adjoining political branches of government, but there are deep dependencies between them. They are not independently elected. They have to be appointed. The Congress plays this role in shaping what the quite directly can intervene and set what kinds of issues can be adjudicated within the judiciary. There's a dependence by the courts on the executive branch for, this isn't something that you brought up, but concerns about enforcement powers that they can issue rulings, but the extent to which they are being enforced, they have to look to the adjoining branches of government. They draw their power from laws, laws enacted by Congress, and yet they also have power to overturn those laws, and to say they don't square with the Constitution, or to effectively rewrite those laws to clarify not just ambiguity about the Constitution, but also what the law itself means. And then they play this different role, wherein they're sort of setting rules about when power can be delegated or not. John, if I could come to you on a follow-up on this. When we think about the players, earlier Elizabeth pointed to the president sort of sitting at the top of the constitutional order today in practice. I mean, you think about who's exerting the most influence. And we pointed towards, you pointed towards earlier Congress struggling mightily. Where do you want to, where do you want to put the courts? Are they major players? Are they to be feared, or are they the least dangerous branch as Hamilton suggested many years ago? So the courts could play conceivably a really important role in maintaining the, so if you were committed to the kind of founding allocation of power, then you might be quite surprised and distressed by this toppling of the presumed pecking order. And if so, the courts could play, which would arguably be a quite small C conservative role and a very traditionalist role in insisting upon the kind of initial allocation of power. You could imagine a court that leans in heavily to the realities of modernity. And I think that's largely what we found in the kind of post-New Deal court up until fairly recently that recognized that Congress is quite compromised by its design, by its internal division, by its disaggregated framework of having 535 members, by the heightened role that partisan politics plays over institutional affiliation. And the court put its thumb on the scale of allowing practical compromises where Congress recognizes there's only so much that can get done. So they're going to delegate responsibilities, hopefully to a responsible president who then has broad discretion about carrying out Congress's big plans that they don't have the wherewithal to actually explicitly implement. And you could imagine the court playing that role because it did play that role, as I said. And now if we get to a moment where the court is no longer abiding by that kind of resolution, that modern compromise, and is going to invoke a founding understanding. But one that also accepts a founding understanding of some powers, but not other powers, is where we get into this really frustrating moment where we continue to have a feeding certain types of presidential power and at the same time greatly limiting legislative power. And I think that's what's causing the problem is when Congress, sorry, when the courts are out of step with the broad strokes of where we are as a country. And I don't know exactly how we put that back together. As Aziz mentioned, partisanship hasn't fully dictated how the court has styled itself in these moments. It has been a kind of a core Republican principle in the post-war era to have smaller government to be fairly skeptical of regulatory power. And yet we've had justices appointed by quite conservative presidents and supported by fairly conservative Senates to essentially abide by this post-World War II New Deal settlement. And now we're not. So I think the pressure is on all of us in some ways, for us as voters, us as citizens, legislators, judges themselves to figure out how we go from here. The members of the court talk a lot about institutional legitimacy and how they need to be kind of not necessarily honored, but they need to be respected in our system. But I think that especially when you're not elected, especially when you are acting in some ways in defiance of the popular will, to the extent we can put our finger on what that is, then that trust and that legitimacy has to be earned and earned time and time again. Yeah, so there's this other body of people who also occupy an increasingly prominent place in the constitutional order. These people are not elected, but they exert all kinds of power. And Elizabeth, you referred to them earlier as members of the administrative state. We had a comment earlier that said, don't confuse the legislative branch with Congress. They're not synonymous. That Congress is a component of the legislative branch. That's true. Boy, when you think about the executive branch, the president is a big part of it. But at mid 20th century, we had the emergence of this massive federal bureaucracy, which is the subject to all increasingly sort of sharp critique. By the courts that whereas 30, 40 years ago, there was a sense that we ought to do is sort of step aside and defer to the expertise in the executive branch in the administrative state. But that appears to be changing. How are we to think about where the administrative state sits in the constitutional order and how it relates to these broader themes about separation of powers? Elizabeth. Yeah, thank you. I mean, that is an incredibly important question, you know, for all of us in our daily lives, because so much of what we often take for granted. Many of us, you know, clean air, safe food, proper workplaces, the enforcement of our civil rights. Most of this in the way that it touches us on a daily basis comes from agencies, comes from part of the administrative state, as you would. You know, this is something that has been part of the structure of government since the founding. You know, the idea that the president would be able to have inferior officers and delegate authority to them was something that was very much part of the founding of how you would have a functional democracy, that you would have a government capable of doing things. And, you know, we often think about the ways in which our constitutional democracy is a break from the British. And certainly that's true. But it's also a break from what came immediately before, which was the Articles of Confederation. And there you had such a, you know, dysfunctional government, you know, that wasn't really able to do things at the United States level, as opposed to the state level that, you know, you had the, you know, if you've seen Hamilton, they talk about, you know, desperately trying to get, you know, money for soldiers to eat to fight the revolution, you know. So the idea of having them be able to do things was, in layman's terms, you know, really important to the framers of the Constitution. So, you know, obviously having people carry out laws that have been passed, carry out executive functions was something that was very, was not obviously in the same form it is now and not as large as it is now, but was not foreign to the framers of the Constitution. It has developed obviously into a much more sophisticated, complex, numerous arm of the government. But, you know, the basic conception is baked into the Constitution. Now, there are certainly people, and I filed a brief that says just that with the Supreme Court many times. There are certainly folks who would disagree with me on that, who would say that this is much more a modern invention. I, of course, think that's wrong. But, you know, the court today is very much focused, or I should say the conservative majority on the court is very much focused on cutting back on the ability of agencies to act, to regulate. And one of the ways that they're doing that is through a theory called the major questions doctrine, which says that there was a case last term of the Supreme Court, West Virginia versus EPA, which said that if the EPA in that instance, but it applies to agencies in every context, wants to exercise delegated authority from deriving from an initial congressional enactment, then that congressional enactment needs to speak on the major question. If it implicates a major economic or social matter to the country. Now, this is really an extraordinary power grab from both Congress and the executive agencies. Because what the court has just said is that, you know, if executive agencies today like the EPA want to act to combat climate change, Congress from decades ago needed to envision this particular problem and have spoken explicitly on it. So when we were talking in this whole conversation about the way in which separation of powers can ebb and flow, what the Supreme Court is doing right now with respect to the administrative state is a very clear example of the court shifting that balance to a very substantial degree. And we'll see, you know, we'll see how that plays out. But it has very big implications for the way in which the government is able to act in the public good to get back to my kind of initial overall theme of this is being able to do something. And if Congress is as I'll use the word dysfunctional, as I think our previous conversation intimated that then their ability not just to act but to speak clearly to issues large and small is going to be compromised. And if the rule that the court is implying is it is deploying is one that says absent a clear and explicit delegation of authority, then the president and the larger bureaucracy cannot step in and write rules and regulations. I think, you know, we've had a very fairly academic conversation. So I just want to like bring it down to like, yeah, please ask tax here. You know, I think that we would be amiss to not recognize that the justice is no as well as all of us watching our system, that right now the ability of Congress to speak on major questions is is very unlikely. And, you know, we saw this in a few instances, the court saying, oh, we're striking down this part of the Voting Rights Act, but Congress you can redo it. You know, but after a while you've got to realize that they know that Congress, and not because of anything they're saying just because of political dysfunction is unlikely to be able to speak on that. So then you are left with a situation where the court is really the one speaking on so many of these major questions of the day, and not arguably the ones who should be which are the branches that are closest to the people. Okay, so if we could let's let's step back and take stock then of the performance of separation of powers we've gone through the various branches of government the administrative state, we have polarized parties and we've got the courts periodically intervening and sometimes not intervening and deploying different kinds of rules. If you are James Madison, and you're looking at contemporary contemporary state of affairs. Are you taking a deep breath and saying how not only did I basically get it right. But my handy work has has lived, or do you look upon the present situation with a good deal of horror let's let's start from their perspective and then we'll and then I'll invite you all subsequently to say, What do you all think about the let's let's first channel our inner James Madison and say how are we doing is ease how are we doing. I think I lost my energy is Madison somewhere on the midway on a snowy day one year and in February, he's still still out there wondering through the bushes of the Chicago Park District so I'm going to just going to try and answer the question on its on its rather than by channeling anyone. One of the things that's come out in our conversation is the way in which when institutions of a national government are designed the way they will behave that the effects that they produce in the world depend upon the interaction between that design and various background facts, facts like the disposition of the people who sit in the institution, the vectors of political compromise or conflict in which the institution is nested and other factors including social and technological change. Madison and the other framers offered a theory or a practice of constitutional design that rested upon certain assumptions about those extra institutional dynamics and one way to think about where we are today is that the assumptions upon which Madison and his peers at Philadelphia acted have been proved false. Often they've been proved false because ironically of the very success of the constitutional project. And so what we have today is a set of institutions that are designed with certain assumptions in mind, but where those assumptions no longer whole, and the institutions move in directions that are unexpected because they're operating in a completely new environment. So let me give you two examples of assumptions that Madison in particular is associated with that are directly salient to the separation of powers, but that no longer hold true. The first assumption is the theory of filtration. This is the idea that framers have designed a system of national elections, partly elective, partly selective. Notice the role, the non elective function role of the Senate and complex design of the Electoral College at the founding, which they thought would yield would filter all possible candidates for national office, selecting for those who would truly public spirited and public minded. I don't think it is controversial now to say that, especially when we're thinking about certain occupants of the Oval Office, the assumption that the Constitution selects for public public mindedness no longer seems to hold. So the first problem is that the theory of representation that the framers had, which assumed that people would be public spirited when they reached national office. And I should add that they would not act in a partisan manner. There wouldn't be national parties. Obviously those assumptions have failed. The second assumption that's failed is Madison's claim that individuals who occupied an institution would merely by dint of occupancy come to identify themselves and their interests with that institution, that they would be loyal to the institution. Now, it seems obvious to us today that a judge who has appointed for life, a person who sits on the bench for decades, is going to have a different relationship to her institution than a representative who must seek re-election through appeal to people far from the Beltway every two years. That seems obvious to us. It was not obvious to the framers. It was assumed that each branch would be characterized by institutional loyalties. So one of the ways of thinking about what the framers would have thought about the separation of power stay, what Madison might have thought about it, is to wonder what he would have thought about an institutional design that he had proposed in large measure. But operating under political conditions of national partisanship, a failure of filtration, and highly divergent degrees of institutional, as opposed to partisan loyalty, what he would think of that institution, what he would think of that set of institutions. One fact that lawyers like to, or law professors like to gloss over about Madison is that he was much more of a political scientist than a lawyer. He comes to Philadelphia after an extensive study of other constitutions in other countries and very much had an experimentalist and an empirical mindset. And so if you cast your mind back to that Madison, then maybe what Madison would say, our contemporary Madison would say is, okay, we build these institutions, we thought they'd work in these ways. They don't. We need to rethink what these institutions do within the bounds of political possibility, given the world we actually have rather than the world we imagine. And therefore the political project, at least when it comes to separation of powers, is not just one of preservation. It's one of evolution and adaptation. And I think with that spirit in mind, if I could turn to John and Elizabeth, if you could each weigh in on your own assessment, put the framers aside, or you could deploy them if you think they got it exactly right. But your own assessment about how well separation of powers is serving us, particularly when we think about a healthy democracy and combating contemporary threats to democracy. John, do you want to go first? And then we'll give Elizabeth you the last word. Sure. And I guess what I would just say on that is that Madison and the framers writ large have a place, but I think the place is that even if even if he were a better predictive analyst of where things would go, I think we need to take some degree of distancing ourselves from the framers because they didn't understand or appreciate and to the extent they would appreciate what the American polity looks like today. It's not clear they would have designed a system remotely similar to the one that they set forth. So I do think it's instructive to look at what they were doing. And it's helpful to think conceptually about what they were going after. But the specifics of the specific design choices, the structures they use may well have been marshaled to engender a caste system that they never thought would ever be replaced or should be replaced. So I think we should take the framers as a starting point to think about what we think about in terms of good governance and accountability. But also be willing to kind of break free from them and recognize their limitations, not just because they didn't envision that parties would become much more prominent, but because they didn't necessarily respect the equality of citizenship that we do today. So where does where does Madison work for me is the is on the conceptual level? Because I think if one of the places where separation of powers continues to resonate most strongly for me is where we've recreated systems of checks and balances where it hasn't been constitutionally required per se, but it's actually worked out extremely well, particularly within the last administration where we had two impeachments but no convictions. We didn't have the courts really stepping in to limit some of the excesses of the Trump administration. But we found the secondary actors who actually put up some some pretty important stop signs. And the two places I'll identify there is to go back to what Elizabeth was saying about administrative governance. So the administrative state is often treated very flatly by the courts and they think about mostly they think about in terms of faceless bureaucrats is usually the the pejorative connotation of it. But if you look inside agencies, it's actually an interplay of career civil servants and political appointees who very much are in constant conversation with and very much subordinate to the powers that be in the White House. And the interplay of those groups actually allows for the politics of the moment to be carried forward with some degree of resistance by those who say that I understand that's what your president wants or our president wants. But but here's the here's the practices that we've always followed. Here are the laws that bind us and here are the precedents that that give us the authority and the credibility to continue to operate six years from now when you're back in, you know, in a law firm or you're back on Wall Street or wherever you're going to go. And the interplay of those two actually help kind of limit some of the excesses, some of the political excesses, some of the arbitrary positions that the president struck out. And that's true. It was particularly true under Trump, but it's true under any administration. And the second place I think it plays out and there are obviously strong indentations in the constitutional text that would note the kind of the the placement of the president as the head of the military as commander in chief. But what we've designed is a very structurally robust system where the military has been depoliticized and that the the the civilian office of the Secretary of Defense is a political position. It does work very closely with the president. But there is the military has removed itself through tradition through laws through customs through looking at other countries, what works and doesn't work have removed themselves from the political sphere. And also, again, serve as a counterbalance in ways that in some places and sometimes might be quite troubling that there might be some friction between the generals or the admirals and the president. But at other times it's been proven to be quite virtuous because the president and the Secretary of Defense have to think, will the generals go along with this half brain scheme or rolling out troops in northwest DC to make a political point, etc. I think the framers structure their structural ideas about separation makes a lot of sense whether the particular devices that made sense in the 1780s make sense today is an open question. So at least two cheers for separation of powers. When we think about maintaining our democracy. Elizabeth, take us out when you think about separation of powers you do. And you particularly as it relates to maintaining a flourishing democracy, do you find solace in it, or do you see it as a potential problem that needs to be overcome. Yeah, so it's a great question and I would just expand our lens on framers from our 18th century framers to include our kind of second founding framers. John Bingham, Senator Jacob Howard, the folks who wrote the post civil war amendments which really revolutionized our American constitutional government in such a significant way that it is often referred to I think appropriately as the second founding. And they added an innovation. They added so many innovations to our written constitution, particularly writing really for the first time the ideals of the declaration of equality and liberty actually into the text of the Constitution, obviously abolishing channel slavery and the 13th amendment, expanding the franchise and the 15th amendment, but they also started something that then was adopted and subsequent amendments to the Constitution but which I think was an important innovation to the separation of powers which they put enforcement clauses. They guarantee equal protection of the laws and they say Congress shall have the power to enforce the provisions of this amendment. They get rid of channel slavery and say Congress shall have the power to enforce and remove vestiges of slavery. And they basically asked Congress to step in to ensure that the fledgling multiracial democracy that they were setting into motion at least trying to set into motion with these changes to the Constitution could be put into place. And you think about that in the aftermath of you know the Dred Scott decision from the Supreme Court which was an abhorrent racist decision from the Supreme Court of course they wouldn't trust the courts to be the ones to enforce equality. So I would look at those framers and think of the way that they thought of how the branches of government would affect the aims of constitutional government they changed significantly the aims of constitutional government to include the equal citizenship that John just mentioned. And then we the people subsequently added more amendments to make our democracy more inclusive more egalitarian. And so I would ultimately look to the foundational framers the preamble starts out with we the people so we are ultimately the continuing framers of the Constitution. And while the Constitution does set up some very clear delineations of power and separateness and checks and balances how we fill those up is very much up to us. So if you you know we talked about the possibility of court reform. The Constitution says that Congress has so much authority with respect to the jurisdiction of the court how many seats are on the court. You know, when we the people are looking at whether our structures of government are actually fulfilling an equal flourishing multiracial democracy where the voices of all of us, no matter who you are are considered equally. I think a lot of us are dissatisfied and dissatisfied is not necessarily bad if it inspires you to act and engage with the purposes of the Constitution and the ideals that you want to see reflected in those who are charged with effectuating the Constitution. And that therefore the work that lies ahead very much takes the form of redesigning and reconceptualizing what those separation of powers are it's not it's not strictly an inheritance the thing that we can alter shape and redefine and this has been a terrific conversation. I want to thank all three of you for for your for your insight and and to our audience members for for for listening in.