The Founders’ design and its inversion
Frank H. Buckley told Bob Zadek that the Founders, lacking any model other than Britain, built a system that replaced a king with a president while ensuring the president would not have the power George III had. What they designed, Buckley said, was something we would today call congressional government; they expected the House of Representatives to appoint the president, and they imagined the president executing the laws roughly the way one assembles an IKEA desk from its instructions, without broad discretion. Buckley added that they did not envision the modern media or a thick federal state in Washington that interferes in state government. Has America Become an “Elective Monarchy”? (2014)
Buckley argued that the separation of powers has come to have the opposite effect from the one intended. Where the idea was to prevent the accumulation of powers, he said, gridlock now produces the argument that the president has to act because nobody else can, so that the separation of powers empowers a president and concentrates power in a single person. He described a president who can make laws by diktat and refuse to enforce laws he does not like. Has America Become an “Elective Monarchy”? (2014)
Structure as the foundation of freedom
Glenn Roper, a litigator with the Pacific Legal Foundation, told Zadek that separation of powers is a fundamental American idea and ideal and really what helps protect us. He invoked Justice Antonin Scalia’s insistence that the foundation of our freedom is not based in the Bill of Rights, and Scalia’s phrase that every tin-pot dictator has a Bill of Rights. Roper said that what ensures our freedom is the structure of government — the checks and balances between the branches that hold each branch accountable. The Mini-Administrative State (2020)
Zadek framed the doctrine as the core structure on which state, local and federal government is built, quoting James Madison’s observation that the accumulation of all power, legislative, executive and judiciary, in the same hands may justly be pronounced the very definition of tyranny. Zadek applied that definition to governors, mayors, county executives and health department officials exercising delegated authority during the pandemic. The Mini-Administrative State (2020)
Zadek argued that the Founders, in conceiving the separation of powers, rejected the notion of a single group of elites who know better than others how life should be organized, and that pitting political groups against one another produces collective wisdom better than the wisdom of any single branch. He drew the corollary that when the separation of powers disappears and power collects in the executive alone, bad decisions follow because the checks and balances are lost. The Mini-Administrative State (2020)
Emergency powers and the pandemic
Roper explained that every state has the same kind of separation of powers as the federal government, with legislative, executive and judicial bodies. He said the Founders were not unfamiliar with emergencies — they had just come out of the war against England — and so there is no general emergency exception to everything in the state and federal constitutions. Instead, state legislatures enact laws giving some measure of emergency powers to the executive, laying out what the governor or other officials are allowed to do and the restrictions and limitations on it. The Mini-Administrative State (2020)
Roper said the executive may be allowed to declare certain types of emergencies, such as a public health emergency, and that these are the powers being seen during the pandemic. The problem, he said, is that the limits are not being respected, which produces erosion of the separation of powers and of the checks and balances that are expected. The Mini-Administrative State (2020)
Congressional abdication and executive power
Zadek described a tension between a muscular executive and Congress, saying that Congress is so dysfunctional it is unable to see the lunacy of the existing system it created, and that presidents — Trump and Obama before him — have found it necessary to do the best they can because their duty is to enforce the laws and see that they are faithfully executed. He called the situation a monumental failure of Congress and attributed congressional inaction to cowardice, stupidity or worse. What Part of Illegal Immigration Are You Against? Alex Nowrasteh Returns (2019)
Alex Nowrasteh responded that Zadek was being too lenient. He said Congress has abdicated its constitutional responsibility to craft laws and create the mechanisms for enforcement, and that since the 1920s it has instead written laws providing that the president can figure this out and issue the orders he wants. He cited the immigration code as full of such provisions, including the president’s actions on the travel ban shortly after taking office, the surging of Border Patrol to different portions of the border, and the reallocating of resources. Nowrasteh called this an unconstitutional abdication of Congress’s power that violates the separation of powers doctrine, and said he had come to realize that the executive branch is really the most dangerous branch of government. What Part of Illegal Immigration Are You Against? Alex Nowrasteh Returns (2019)
Federalism and who decides
Judge Jeffrey Sutton told Zadek that separation of powers happens to be so important because if you do not place some limits on governments, at either the state or federal level, you start to defeat the framers’ insight that separation of powers is the way to protect liberty by avoiding the aggrandizing of too much power in one place. Who Decides? (2022)
Sutton invoked Justice Brandeis’s metaphor of states as laboratories, saying that when no one knows the right answer to a new social problem, a brave state can try an experiment and other states can adopt it or variations on it, and that one does not want to experiment on 330 million Americans and 51 jurisdictions at once. He noted that there is no individual right guaranteed in the federal constitution that did not originate in the state constitutions, which came first after 1776, before the summer of 1787 in Philadelphia. Who Decides? (2022)
Zadek put to Sutton his own observation that California is the California Department of the Federal Government — an agency in charge of a geographic area, funded and ordered by the feds. Sutton replied that if you are going to call the state of California the Department of the Federal Government, that raises the question of when California has authority to initiate its own ideas and when it does not. Who Decides? (2022)
Across episodes: the same question, sharpened
The same question — whether the separation of powers still constrains or now concentrates power — runs across the episodes, and the treatment shifts with the political moment. In 2014 Buckley described a structural inversion in which gridlock empowers the president; in 2019 Nowrasteh located the cause in Congress’s abdication of its own responsibility; in 2020 Roper and Zadek applied the doctrine to pandemic emergency orders; and in 2022 Sutton extended it to the vertical division of power between state and federal governments. The excerpts show development in emphasis rather than a change of doctrine: the later episodes name specific mechanisms — emergency statutes, delegations in the immigration code, state constitutions — where the earlier one described the general drift.
What the sources do not cover
The excerpts do not state what any court held in the cases discussed, nor which constitutional amendment any of them turned on. They do not give the text, name or date of any emergency statute, immigration provision or bill. The episode descriptions for the court-packing and administrative-state episodes list separation of powers among their topics but supply no statements by the speakers on it, so those episodes contribute nothing beyond the fact that the topic was listed.