Cass R. Sunstein — Separation of Powers: How to Preserve Liberty in Troubled Times

Well, good afternoon, everyone. Welcome to Politics and Pros. I'm Brad Graham, the co-owner of the bookstore, along with my wife, Melissa Muscatine. And we are very delighted to be hosting Professor Cass Sunstein. Once again, Cass and I were just back there trying to calculate how many times he's been here. And we settled on umpteenth. He's been here onteenth time. At this time, he's here for his new book, "Separation of Powers, How to Preserve Liberty in Trouble Times." Over his four and a half decades as a law professor first at the University of Chicago, and since 2008 at Harvard, Cass has gained a reputation as one of the most influential and frequently quoted legal scholars of our time. He's also incredibly prolific, as I was just referring to, having published several dozen books and hundreds of articles. Often he'll have more than one book published a year, a couple years ago in 2024, for instance, he came out with three. First was look again about the advantages of having our routines and habits disrupted, then campus free speech about how far free speech on university campuses should go, and later climate justice about the ethics of climate change. Last year, PNP hosted him twice for algorithmic harm about protecting people in the age of artificial intelligence, and then last September for on liberalism, which explain why liberalism is under threat, and yet needed more than ever. So that gives you some idea not only of how productive Cass remains, but also the range of his interests and scholarship, and he was telling me that coming early next year is going to be a book on animals and animal rights. So you can mark your calendars for that. I should note as well that over the years, Cass has spent time serving in or advising various governmental organizations under President Obama. He was administer the White House Office of Information and regulatory affairs, then served on the President's Review Board on Intelligence and Communications Technologies, and on the Pentagon's Defense Innovation Board, under President Biden, he was senior counselor to the Secretary of Homeland Security. So he's experienced government on the inside, and in his new book, he examines the idea of the practice of the idea and the practice of the separation of powers as stipulated in the American Constitution. He explains why the separation of powers is necessary for both freedom and self-government, elaborating on the many ways federal power can be both used and abused. Among the assertions he makes and argues, why the executive branch is the most dangerous branch? Why the idea of presidential immunity is really a terrible one. And why what he calls the growth of partism or intense political partisanship is causing real harm and undermining the separation of powers. I'm sure it's obvious to everyone here how timely this book is, given the increased blurring of lines between the branches and the current sweeping of powers under the President, as usual, Cass is writing his clear earnest trenchant and provides us with some very helpful lessons and some of the most important ideas in American constitutionalism. So please join me in welcoming Professor Sonson. [APPLAUSE] Well, it's a complete thrill to be here in DC and to be here on the 250th or thereabouts of a very important document for this country is also a thrill. And to be add, it might be the most significant bookstore on the planet. You can make the argument that could well be this one, given the history, the location, the centrality. That's a complete amazing thing. I have three stories for you. So we're going to be doing a little time travel. The first is kind of a short jump to 1986. And yours truly is walking with a philosopher named John Rawls, who was probably the greatest political philosopher of the 20th century. And to be in his presence as a young law professor was an incredible thing to be walking with him was surreal. And then something beyond belief happened. He said, who do you think is the greatest democratic theorist of all time? This is a little like being asked by LeBron James. If you had the ball with 30 seconds left in the title game, are you going to shoot or you're going to pass? Mr. James, you know the answer to that. So instead of fleeing from the scene, where I was being asked that question by the greatest political philosopher, I mumbled something that took the form of what do you think? And Professor Rawls responded one word, Habermas. And he said that, has anyone achieved with respect to democracy what Habermas has? He said, with gravity. And then he said, with uncharacteristic emotion, Habermas is German. And he grew up under the Nazis. He said no more. A few hours ago at the age of 96, you're going to Habermas died. That is something both to grieve and to nod respectfully toward the skies. Habermas was on the side of the angels, and he might now be among them. He was a great devotee of the separation of powers having grown up under the Nazis. And his conception of democracy, which Rawls celebrated, was distinctive. The idea is that ours is a deliberative democracy, which combines accountability. We the people are ultimately in charge. It's ours, with a commitment to reason giving and a deliberative process. So in the debates over the Bill of Rights, it was urged the First Amendment should contain a right to instruct representatives so that people in New York could tell the senator, here's how you're going to vote. And there was a lot of interest in that. A guy named Sherman delivered the decisive argument against the right to instruct. Sherman said that would destroy the point of the meeting. The whole point is from deep people in different parts of the union to get together and deliberate and figure it out. If there's a right to instruct, what's the point of the meeting? Habermas' conception of democracy was built on that question, urging that ours is a process of reason giving and deliberation among different people, showing respect, acknowledging difference, ultimately obeying what Habermas called the forceless force of the better argument. So that's our first little time-bitching visit. The second involves Germany directly. And we're going back to the 1930s in a time when Habermas was either really young or not quite born yet. And the headline in the New York Times said all powers now concentrated in the chancellor. The legislative power has been abdicated. And the chancellor is free to remake national life. You can find it online. That's the headline in the Times. And at the time, in the Times, it was chilling. It was probably more astonishing than scary. And the question is, and was, was there a theory there? And there was a theory there. There was a guy named Carl Schmitt, great theorist of Nazism, who said that you can't split off the powers. That's an idea that's outvoted and terrible. That you can't unhinge the state by having the judiciary become separate from the executive. If you unhinge the state, then the judiciary will be an opposition to the führer. And that's unacceptable in a society that's dedicated to at least a certain form of self-government. Schmitt gave the theory of unsapparated powers, urging that unhinge the state by distinguishing the powers was an atrocity at outvoted. Now let's have our third time travel, shall we? And this is going to be the hardest one for our machine. So it might jump a little and bump as we go. back to the late 18th century. And there's a debate in this country about having a new constitution in which it's urged by the opponents that the document that the founders, the would-be founders, they weren't the founders yet, the aspiring founders, the document didn't respect separation of powers. And a youngish guy kind of short named James, last name Madison, tried to respond in the Federalist papers. And in the greatest two sentences, Mr. Madison ever wrote, he said the following. The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one a few or many, and whether hereditary, self-appointed or elective, he's packing a lot into this half-set and so far, may justly be pronounced the very definition of tyranny. Where the Federal Constitution therefore really chargeable with this accumulation of power or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system. So we have now antagonists, Madison defining accumulation of powers in a single hand as the definition of tyranny and Carl Schmidt urging that that's unhinging the state. What Madison must have known, but didn't say, is that the separation of powers is actually a misnomer. It's a "they," it's not an "it." The separation of powers isn't a single thing, it's six separation of powers. It means the executive may not exercise judicial power. The executive may not exercise legislative power. The legislature may not exercise executive power. The legislature may not exercise the judicial power. The judicial authority may not exercise executive power authority. And the judicial authority may not exercise legislative authority. Estonically, in the founding period and in the centuries since, the sixness and the vanness of the separation of powers has not had a spotlight. It's been something you and we have all lived with, but it has been a little bit like the hidden story of our constitutional order. The founding generation was resistant to the idea of a Bill of Rights. In part, on the theory that the separation of powers was a Bill of Rights, that the structure created a projection of rights. How did it do that? It didn't do that through an abstraction that's an "it." It did that through six concrete practices. So with your indulgence, shall we talk about each of them? The fact that every one of you, much hoping, isn't scared right now of public authorities as everything to do with the separation of powers. And while it was Roosevelt who coined the term "freedom from fear" and made it part of national history, the idea of freedom from fear was front of mind, front and center for the founding generation thinking of separation of powers. Okay, let's talk about the executive first, shall we? This is a little bit the most salient these days. The executive may not exercise legislative authority. If there's gold metal of the six separation of powers in some kind of race in the constitutional Olympics, there's a good argument that this is the one that brings home the gold. The reason the executive can't exercise legislative authority and Justice Gorsuch has been particularly emphatic about that is that the legislature with its various frequently irritating blockages is an immense safeguard of freedom in the phrase of potential threats from public force. Bob Dylan sang, sometimes the president of the United States must have to stand naked, which was words not about kind of unpleasant nudity, but were words about relative powerlessness. And the basic suggestion is that notwithstanding the awesome authority of the president of the United States, because the president lacks legislative authority, he needs essentially always legislative permission to do anything at all. When the president of the United States under previous administration lost the school loan relief case, it was essentially on that ground that Congress didn't give the executive authority to forgive school loans. When the current president lost the tariffs case, it was with Bob Dylan singing in the background, a ruling that Congress hadn't given the president the relevant authority. The president doesn't always need congressional permission. If there is an imminent threat of war from another country, the president is allowed to repel a sudden attack. That was the general agreement in the founding era. But the president can't create a clean air act, cannot create an immigration reform, cannot re-regulate highways and airlines unless Congress has given permission. And that protects first liberty as Justice Gorsuch is emphasized by creating a layer of safeguard against the use of public force. And second, it protects guess which conception of democracy. The deliberative one. The idea is that Congress with its two houses and its multiple representatives from different places who have a duty to meet with one another and discuss has a safeguard against unreasoned, abrupt, reckless, impulsive, insufficiently considered initiatives. The fact that the executive lacks legislative authority wins the gold medal for that reason. It weds the commitment to liberty, with the commitment to the liberty of democracy and makes them more or less the same. If there is a silver medal in the separation of powers Olympics, it might well be the idea that the executive lacks judicial authority. It may be very salient to all of you right now, but it should be salient to all of us always, that if the executive seeks to go after someone and hurt them in some way, which might be justified and profoundly important, there's another lay of government that stands in the way and provides an independent check against unjustified or ill-considered intrusions. The fact that the executive authority needs the judicial authority in order to bring its authority to bear against people is a crucial protection of freedom in circumstances in which the executive for one or another reason might go off have cocked. A friend of mine told me a story a number of years ago. She had a large company and she was in Russia meeting with President Putin on something of great importance to both of them. President Putin, this is before the war, President Putin was nonetheless very busy and he was running late for the meeting. She said to Putin's advisors, "I'm sorry, I'm going to have to leave. I can't meet with the president because I have to make my flight back to the United States." And they looked extremely alarmed and said, "Why don't you come in and see President Putin?" And President Putin said, "What's the problem?" And she said, "I need to fly back and I can't make the flight." And she said, "Why can't you make the flight?" And she said, "It's the traffic, it's Moscow, you'll recall." To get to the airport, it's just not possible in the relevant time. And he said, "Trafx the problem?" She said, "Yes, it's big city." And he said, "You don't have to worry about traffic." She said, "Why?" He said, "There won't be any traffic." She said, "How?" He said, "You'll see." He closed all the roads. He had the meeting with her. She zipped through the carless roads of Moscow and made her flight. In the United States, if any official wants to do something like that, they need judicial approval and that's going to be extremely challenging. It is also the case that if the legislature seeks to do something, it lacks the authority to assess the legality. of its own action. The legislature, and this is the third, is the legislature lacks judicial authority. The founding generation made one, I think, visible error, which is it thought that the most fearful entity that it created was Congress. It missed the acquisition of authority by the executive over the decades. Nonetheless, it was acutely aware that both the executive and the legislative have authorities that courts lack. Courts have neither soared nor shield. The fact that the courts lack the—so, I'm sorry, soared nor shield nor purse. The key ones are soared and purse. Congress controls the purse. The president has a soared. The courts don't have any of that. Nonetheless, if the legislature acts, there's an independent entity, the courts, which gets to decide whether what Congress has done offends the Constitution. That is a severe check against congressional abridgment of constitutional limits. A good friend of mine wrote me a note yesterday, actually, about some bill pending, saying, "This is clearly unlawful," and she's probably right on that, violates the Constitution. How can Congress pass an unconstitutional law? Which is a very smart question. The answer is Congress can and does, but we don't have to worry nearly as much as we otherwise would, because the independent judiciary is there to render it meaningless and void. And that is the separation of legislative and judicial authority. It's a little subtler, the importance of saying the legislature lacks executive authority, but it's also an essential protection of freedom. If the legislature enacts a law and then is very agitated against a person who has apparently violated it, the legislature can't make anything happen on its own. I saw this by the way in the White House in one of my three government stints, where members of Congress would call us up and say, "Go after this person." And that was not a direction. It was a plea. That is, the legislature can't make the executive go after any American citizen. The legislature can make a plea. And the answer to the pleading members of Congress, important and honorable, though they were, was often, "We don't have the evidence." No. The fact that the executive authority typically has a very wide range of potential targets and limited resources means that when things are working well at setting priorities, and it's not politically responsive to a legislative plea for prosecution. That means each one of us benefits. And I bet there's someone in the extended family of everyone in this room, at some point who's benefited from this. Each one of this has the benefit of two layers of protection. There's the lawmaker and there's the executive. The legislature has to authorize the executive action and then the executive has to agree to take the action in order for someone to have their life turned upside down. That's not true in Carl Smith's vision of a state that is hinged rather than unhinged. We need this form of unhinging. Okay. It's also the case, and this is the fifth on our list, that courts lack legislative authority. For many people over the course of the last 40 years, that's been really important and been blaring in the sky. That if courts end up as effective lawmakers, our system of self-government is jeopardized. Maybe that resonates with you along one or another dimension. If you've seen the judiciary do something that looks like lawmaking, it's legitimate to raise that objection because the fifth of this operations of powers says the courts can't make law. They're not democratically accountable. They're not allowed to do that. The sixth on the list, which is maybe not secretariat, the fastest and the strongest of the horses, but nonetheless runs in the Kentucky Derby, pretty important horse, says that the courts lack executive authority. And that means that if the courts are going to rule, it's only after the executive authority has asked them to and initiated a proceeding. That means that the unaccontable judiciary, which has many virtues and is indispensable, is not able to initiate proceedings on its own. It's dependent on executive action. Okay. We now have the six separations of powers, and then I'm going to tell you something about the unitary executive, which is maybe on your mind, and then we're going to wrap up. So the six are the president cannot exercise legislative authority. Probably the most foundational of all, the executive cannot exercise judicial authority. Something which makes these human beings heroic safeguards of freedom and in some ways relatively powerless, just people with maybe black robes, but they are crucial to the action of the executive. The executive is dependent on that. The legislature lacks judicial authority. So if Congress says law X involving, let's say abortion or immigration is constitutional, there is another branch of government, which we'll call the question. The legislature lacks executive authority, two layers of protection of freedom. Courts, the weakest of the munch, no swords and no purses, cannot tax or spend. They can't hurt anybody directly. They need the legislature for lawmaking, and they need the executive for enforcement. They're a tertiary layer, which makes the commitment to self-government real. Okay. Unitary executive time machine. In the early 1980s, there was a group of young lawyers in the Department of Justice. I was one of them. We all had very full heads of hair, and the men in the group maybe not so much anymore. And we agreed on not that many things. These were diverse people, some who came in under President Reagan, some who came in under Carter, some who came in under one or the other because they wanted to be in the Department of Justice, but they didn't necessarily agree with either President. We agreed on one thing, which is that the presidency is unitary. We all thought that. It was almost like a song that we sang every morning. The reason we thought that was twofold. First, we worked for the President of the United States, and whether the last name was Carter or Reagan, he was our boss, and we tended to be inclined to understand the founding document in a way that fit with his preferences. Second, we thought that the Constitution grants executive power to a President of the United States. That's Article 2, Section 1. It doesn't grant executive power to a chair of the Federal Reserve Board or to an Attorney General of the United States or a chair of the Federal Communications Commission. What is ambiguous about Article 2, Section 1? We thought nothing, and therefore the Unitary Executive idea is correct, which meant that Congress lacks authority to grant independent authority to anyone who's engaged in execution of the laws. That view, which I firmly held in the early 1980s, has become not a song sung just by Department of Justice lawyers with full heads of hair, but the loudest song being sung these days by the Supreme Court of the United States. So it's remarkable to see a somewhat esoteric position accepted by some young lawyers become moved from the periphery to the margins to the center of legal debate to the point where it is it is triumphant. I no longer hold with confidence or probably even at all the view I held in the 1980s, and the reason is there's been a stream, a flood of historical work, demonstrating that what we so confident thought to be true, which is the founding settlement was that Congress lacks the authority to create independent agencies. We were probably wrong on that. If we were right on that, it's more a 60-40 right than a 90-10 right, and we were probably 37-D wrong. I'm speaking about with what degree of confidence. Where we are now is that the court is in the grip of a theory, honorable people hold the theory. We have to notice its limits. Those who believe in the unitary-ness of the executive agree with the proposition that the president lacks legislative and judicial authority. So the tariff's decision holding the president's action on lawful because unauthorized by Congress is perfectly consistent with the decision which affirms that the president gets to control the National Labor Relations Board and the Securities and Exchange Commission. That the president's vertical authority over the executive branch doesn't mean he has horizontal authority over the legislative branch. So everyone agrees with that. It's also the case that those who agree with the unitary presidency view are at pains to preserve the independence of the Federal Reserve Board. And I want to make two notes on that. First, the technical reason the court is at pains to preserve the Federal Reserve Board is because it believes there are long-standing historical analogs back into the founding period which suggests that banks can legitimately be taken out of presidential control. So their historical president precedents which are not recklessly invoked in support of the modern Federal Reserve and the court has done that. The second reason the court is preserving the Federal Reserve I think is reflected in a conversation the University of Chicago faculty had with its former colleague Justice Scalia in the 1990s. In the conversation Justice Scalia was put a question by a historically-minded professor which suggested that Justice Scalia's view of part of the Constitution was inconsistent with the historical understanding and inconsistent with the original meaning and he loves the original meaning. So the professor basically said to him, "What are you doing here? You are adopting a conclusion which is inconsistent with your method." And Scalia, who was full of mischief smiled and he said, "I believe in the original meaning. I'm an originalist but I'm not crazy." And then he said, "I sometimes follow precedent." And then he said with great some combination of pleasure and self-parity. He said, "And when I follow precedent in the face of the original meaning, sometimes it pleases me. I think that's what's going on here. That respecting the independence of the Federal Reserve even if the court's method according to the court shouldn't is consistent with precedent and pleases the justices." So where we're about to be in my view is not ideal but maintains a high degree of fidelity with the system of separation of powers, horizontal control of the executive branch with some exceptions of which the Federal Reserve is the most important subject to a vertical control. I mean subject to horizontal restriction that Congress is ultimately in the driver's seat. Okay, time to conclude. It's been a lot of time on this book so should I ever look at it? Would you mind we're going to go between reading and talking? "Return shall wait to 1933." Here's the exact quote from the New York Times. "Chancellor preeminent over cabinet is now practically the German government." That's a great headline isn't it? Because practically is independent, right? It means almost or is a practical matter? It's like a nice pun. "All legislative powers have been transferred to the regime free to refashion national life." Almost a hundred years later, some people aren't so enthusiastic about references to Nazism in Germany on the ground that they're too inflammatory and might load the analytical dice. Some people just turn off when you talk about Nazism. But Hitler did receive legislative powers and he did refashion national life. In the decades since his death a lot of people and of a lot of leaders have been unenthusiastic about the separation of powers. Worldwide enthusiasm about that idea indeed American enthusiasm about that idea might be lower than it was 30 years ago. Every nation including ours faces a lot of serious problems. If we want to address immigration, air pollution, inflation, unemployment or public health, a lot of people will want someone to be unencumbered, free to refashion national life. Some people don't like separation of powers at all. Even so grave threats, the gravest, come from a government that is freed up from the constraints of separation of powers. It's true, an executive that has law-making authority can do a ton of good. But it can also produce horror and it's probably going to. A legislature that exercises executive power is a recipe for tyranny. An independent judiciary really needs to be available and able liberated to hold the executive to account. An independent judiciary needs to be able to control Congress as well. At least by interpreting the laws and let us hope also by striking down those that offend our Constitution. An independent judiciary is crucial because it's an after-the-fact corrective executive and legislative lawlessness and also a before-the-fact deterrent. Separation of powers is a bet. It's the right bet. Thanks. So I'm really eager to hear what's on your mind. Yeah, sorry. Thank you very much. That was enormously insightful. I want to focus on the judiciary for just a second. Two points that I'd likely respond to. One, how independent is a judiciary when the nominating process has produced such partisanship and you can predict outcome based on who appointed what judge? And a related question is when I went to law school I was taught about the common law and the development of the common law which sounds sneakily like judge-made law. So how do you respond to those in the context of the separation you've just described? Yeah, those are great questions. So with the politicized appointments process, a Republican appointee and a Democratic appointee are predictably going to be different. Yeah, I collected some data a number of years ago in on the courts of appeals in politically contested cases involving like civil rights or the environment or labor unions. That kind of thing. The issues which would divide along political lines. Republican appointees voted in the stereotypically liberal direction like four woman complaining of sexual harassment or for a labor union. 37% of the time. And Democratic appointees voted in a stereotypically liberal direction 53% of the time. Now that's a big difference but it's not that big a difference. So it consistent with your point, the 16 percentage point split is really meaningful. At the same time, more often than not, they're in accord. On the Supreme Court itself which have the hardest and sometimes the most politically intense disagreements. It's true that we have more of a confluence between the political party, the appointing president and the votes. So divisions of the sort that you wouldn't be surprised by you actually read about. The note in the tariffs case, the Chief Justice of the United States and Justice Barrett and Justice Gorsuch voted against President Trump. And if you read the Gorsuch, and barred opinions, they're very animated, corsage particularly, saying, you know, he's singing the separation of power song and saying tariffs, Congress didn't give the president authority, can't do it. And so Article 1, Section 1 is probably his favorite of all the constitutional provisions. So your points fare completely. Even so, we observe on the lower courts and the Supreme Courts at least a degree of coalescence. And when there are divisions, it's usually on cases that are reasonably regarded as difficult, which means the president is going to lose a lot. And if he wins, it's probably a hard case. On the common law, that's also a great question. So you could worry that in so far as judges are making the law of contract toward and property, the common law judges make the law of contract and property. That looks like law making and how can that be squared with separation of powers? Supreme Court has worried over that a lot, so there's no general federal common law anymore, partly under the pressure of separation of powers thinking. Insofar as it's done by the common law courts, it's thought the kind of form of words answer is that it's not law making by the common law judges. It's an exercise of judicial authority and it's always subject to state legislative override. So if there's common law in New York that is doing things with respect to property law and the New York legislature doesn't like it, the court has nothing to say except, yes, you're the boss. You're in charge. I'll be interested in your thoughts on how I guess what I would characterize as this sort of incoherently expansive assertions of what is national security or the phenomena of the declaration of a flow emergency. How does that impact, how concerned are you that that upsets the separation of powers and what do you think we could do about it? I don't have a second question, which is a more personal one, which is somebody worked in the Justice Department in the 80s later on after you. You were a legendary during that period when you had a full head of hair of being an exceptional squash player and I hear that you are still an exceptional squash player, even in a period of time we have less hair and I'm wondering how the heck are you able to do that? Thank you. That's like the nicest thing ever. So you could take those in any order. Let's start with, they're both really hard. So if a president might assert emergency authority or national security authority under Article 2 as part of executive power and presidents have occasionally said the Constitution grants this. The Supreme Court has been very reluctant to say yes because of the music of your question. And if the president has an emergency authority under Article 2 executive power, then the number of things the president can do in the face of economic or foreign terribleness is very large and the separation of powers seems to be undone. So the court has never said that the president has an inherent national security or emergency power. I don't think, I don't think we've ever seen that from the Supreme Court. I'm sure that's true on emergency power. The court has bracketed that. It hasn't said no, but it's never said yes. So there's that. Now, if there's a sudden attack on the United States, the founding debates suggest that the president has the authority to repel a sudden attack. So that one, I'm hopeful, would be the judicial ruling and it probably wouldn't even come to court. So on the constitutional side, emergency national security power are probably thin. This is all TBD. So what we're talking about are statutes that give the president the authority act in the face of a national emergency and some of the authorities that are in play now have that. Now, there are a couple of things to say about that. One is what is the natural reading of these terms and the other is what are the factual predicates invoked by the president and there's a third, what's the right judicial posture in the face of same? And it might be that judges would be inclined to say that we're just judges. We're going to be very cautious about second guessing the president if he says there's an emergency. So unless there's no factual predicate at all, we're going to say yes, Mr. President. And a question whether to be concerned about this definitely, but there could be concerns both ways. If the courts were second guessing, they don't know much. They're not accountable. And there are horrors of presidential overreach, which we could imagine or maybe even identify, but there would be horrors of judicial intrusion. So there are risks both ways. Probably it's better for Congress when it's doing this to have some specification, what it means to have a national emergency or national security risk. And maybe in context, all of these terms do have like a natural meaning such that there's some discipline. So that's an inadequate answer to a very good question. On squash, I have a match tomorrow against a very good player and I'll have a better answer. I can say that when I was in college, I played number three for, we won the national title. If I play the number three for the current against number three now, it's not going to be pretty. It's going to go very badly. And that's partly a tribute to the things that accompany hair loss. But I like to think it's more attributable to the fact that every sport, people are just much better now than they were seven years ago when I was playing college squash. So have you adapted your tactics on the court? Just asking for a friend. Yeah. Okay. So this is going to be fascinating to all of you. In squash, there's a constant choice to go for a winner quick or you play a long point. If you're playing someone who's equal to you, you should basically play a long point because you'll beat them that way because you're better. If you're playing people who are better than you, you better shoot quick and hope for randomness. So I shoot quick. Excellent. Thank you. Okay. Especially with the president like the one we have now, isn't this separation of power with somewhat illusory, given that only the executive has an ultimate enforcement mechanism being the military or law enforcement? Yeah. This is a great question. So I can say that I'll tell you a story. Maybe it will be instructive from the Biden administration. I was in a meeting between the Department of Homeland Security and another agency, which for reasons which will emerge, I'm not going to identify where the other part of the government wanted to do something which it thought was very much in the public interest and quite left of center and important. And we at the Department of Homeland Security thought it was illegal. Not like a crime or anything, but it was just not consistent with the authority, Congress granted the executive. And in the meeting, the other department said, you know, probably right on the law, but nobody's going to have standing to sue. It's just there's no one who's going to be able to sue us. So it's completely going to be secure. We're going to be fine. And one of us of the Department of Homeland Security said, I get that, but we took an oath to follow the law. And if we do something that's in violation of the law, we're violating our oath. And the other department said, no court ever struck anything down on the ground that violated the oath of office, which was true, but beside the point. And as the conversation emerged, the Department of Homeland Security prevailed and people thought even though we can completely get away with it, we're not going to do it because it's against the law. And that's consistent with experience in both Democratic and Republican administrations. So as a practice, how much of what's happening in any particular administration I personally wouldn't have visibility into, but countless occasions when the high level officials want to do something. And people say it's against the law and then it doesn't get done. Now are there times when it happens, even though it's against the law, yes. So that's a partial answer that there's an internal kind of morality, a separation of ours morality that may be flourishing great or it might be like in ashes, but it's there. And then there are cases where the executive does the thing that either wrongly believes is unlawful, is lawful, or it knows is unlawful, but it thinks it can get away with it or doesn't care. And it's going to lose in court. So the number of times that the Biden administration and the Trump administration have lost in court is very high. And it may be that the separation of powers isn't as vibrant as it would be if the executive weren't as whatever as it's become, but it's still pretty vibrant. The number one, maybe do initiative, economic initiative of the current administration is the tariffs idea. And that's gone. The number one, maybe at least in a certain year, domestic initiative of the Biden administration with school loans forgiveness. And that went down. So there are a number of cases where the coalescence of legislative power is in Congress, not the executive. And the executive doesn't get to say what the lie is. Those are like pincers. And President loses. What happens when the president just follows the court? It's a great question. Now, if a president says I'm not following the courts publicly and doesn't, then we're in a constitutional crisis. This president has said publicly, I'm going to follow the courts, I have to. And this president's solicitor general has said to the Supreme Court, we're going to follow your orders. And even if that hasn't been how to phrase it, the universal practice, the Rochelle-Co French commentator, smart guy, said hypocrisy is the tribute vice-pays to virtue, which he meant is praise of hypocrisy. And so even if there hasn't been complete fidelity to the commitment, the existence of the commitment is essential. And on the tariffs case, the president's reaction was, that's horrible. It's lawless. It's really awful what you've done. Okay. I got it. I'll do something else. So the president didn't say, I'm not going to bail you. He said the opposite. In the case when he was very agitated about the courts ruling, he said, okay, we'll do something else. Yeah. Hello. So you've been talking about different facets of separations of power. And I was hoping you could talk about a different dimension being federalism, the separation of power between the federal government and then the states. I think it's safe to say that there's been increased conflict between states and the federal government in the last, let's say, 20, 30 years. And I'm just curious what your perspective is. Is this a sign of, does this trouble you? Or is it actually the sign of the health of the separation of powers? Well, the state federal tension was something the founders thought was very important from the standpoint of freedom. So that the fact that the states would be protective of their own progatives would be a check on an overreaching national government. And the fact that the national government would be there in the case of strife between the states would also be a safeguard. So the commerce clause makes sure goods go across territorial borders. The fact that the federal government is one of enumerated powers and most governance occurs at the state or local level, the view was that was very important for freedom. So the fact that there's contestation between the federal government and the states, that's probably on balance something to be very pleased by. There are particular cases where we might be alarmed under the supremacy clause, the federal law is supreme. So if the states are violating federal law, they should stop. If the states are being obstructionists with respect to federal programs and such that are lawful, that's not ideal. And we need the apparatus of the federal government to fix that. If the states are saying, okay, you don't want to do much with respect to, let's say, air pollution, but we have an obligation to our own citizens and we're going to do what you're not doing. That's very consistent with the founding vision. And if Utah wants to have super clean air and the EPA isn't that excited about going strong on that issue because they want economic growth, that could be fine. So various, I might be missing something, but of various things that are alarming right now, the competition between the federal government and the states would be maybe toward the bottom. I wanted to turn back to the legislative branch and ask a broad question and then slightly narrow it. My question is if you think the legislative branch is performing the functions that the framers sort of anticipated and thought that it should. And I ask the question specifically because I'm one of eight organizations, part of one of eight organizations in the Global Health Council versus Trump case, which is arguing that dissolving USAID cannot be done without active Congress, but also Congress passed appropriations for a foreign aid that did not include USAID. Thank you. With respect to USAID, I'm a little family compromise. Thank you. But I agree with Spouse on everything happening with USAID and everything in general. Okay, so the current system would greatly start all the founding generation, the immense authority of the executive branch that it legitimately has would start all the founding generation. And the abdication by the legislature would I think not be fathomable to them. They were very worried about the legislature. And that has turned out not to be the right target of worry. What they missed, I think, was first the collective action problem, just the sheer numbers to get them together to do anything is even more problematic than was anticipated. And worse is that, okay, when I was in the Obama administration, I'll tell you that we discussed whether and every administration will discuss this, whether to bring the, try to bring the independent agencies under some presidential control. But people were alert that members of Congress would be in an opera if we did that. And it would be Democrats as well as the Republicans who would be in an opera as a young lawyer in the Reagan administration. We also discussed bringing the independence under President Reagan and President Reagan personally backed off. Congress is going to insist on its prerogatives. And that's not happening now. So what the founders anticipated would, each branch would be very protective of its own institutional authority. Instead we have each member of Congress is very protective of his party connection. So it's party rather than institution now. So members of Congress are much more thinking, does the president share my party affiliation than can I protect the prerogatives of my branch? And that's the importance of that can't be overstated. It's like a, the ground moving from under the feet. With respect to appropriations, put any particular appropriation to one side, the fact is Congress has the power of the purse. And the view that the president gets to impound funds is extremely adventurous. I'm afraid that's a gentle word. And Congress ought to be insisting on that. And what do we say? Do we say that it ought to be insisting on it because it's constitutionally right? That's probably the thing to say. The kind of thing that's more tempting to say is if you're not insisting on it now under a president you like, it's going to bite you hard under a president you don't like. That's not as high-minded an objection as the constitutional order. But I'm with your question and very concerned about congressional abdication. Justice Gorsuch has been extremely eloquent about that. And he wrote about it in a way that seemed more sonorous and kind of academic than a Supreme Court opinion typically is. So he was trying to speak clearly to the country for Congress to take control. And this is whether you like Biden or Trump. This is about the liberty of democracy. And if Congress has decided that some agency is going to spend some funds, what the heck? Let's say it's USAID. It's not the president's job to say no. That's not his authority. He has a lot of authorities. Not that one. >> Yes, thank you. I'm curious whether you think that the theory of executive power advanced by someone like John U in the Bush administration in the early 2000s represents a similar challenge to the separation of powers going on currently or whether it's more useful to compare differences with those. >> Okay, I want to go back and look at Professor U's arguments. He had a very bold conception of executive authority. It seems a little, I think, quaint compared to what we're now observing, not from the Supreme Court, but from at least some people who were claiming executive authority that went beyond. But I think you're right to draw a line between what we're now observing. And occasionally we observed under Democratic presidents too. And what Professor U was arguing? Yeah. [ Applause ]