The legislative branch appears in The Bob Zadek Show chiefly as one of three co-equal branches whose excesses the others are meant to check. Guests discussed it through the lens of judicial review, the separation of powers, and the emergency powers exercised during the COVID-19 pandemic. The excerpts do not describe Congress’s internal organization, its committees, or the mechanics of legislation; they treat the branch as a party to constitutional argument.
The judiciary and the legislative branch
In the 2016 episode on the Supreme Court, Ilya Shapiro described the judiciary as one of three supposedly co-equal branches supposed to check the excesses of the others, with federal judges holding life tenure once confirmed and reviewing cases brought before them rather than reaching out on their own Ilya Shapiro on the Supreme Court in the Balance (2016). Bob Zadek put the relationship more broadly, asking Shapiro to explain the core issue of evaluating justices on the basis of the relationship between the branches and the checks and balances the Founders gave us.
Shapiro said that evaluating judges involves basic legal theory — how a judge approaches the First Amendment, how broadly the power of Congress under the Commerce Clause reaches, and when courts should limit executive discretion. He argued that a litmus test is hard to apply because a candidate who said in advance how he would rule on a case would have to be recused if that case came up.
Asked what it means to protect against the excesses of the executive or legislative branches, Shapiro gave two examples. One was a lawsuit then at the Supreme Court over President Obama’s executive actions on immigration, where the court was examining whether the executive had gone beyond the immigration laws and, if it had not, whether Congress had delegated too much legislative power. The other was the first Obamacare case, NFIB v. Sebelius, which raised whether Congress’s power under Article I, Section 8 to regulate interstate commerce extends to requiring someone to buy a commercial product such as a health insurance policy. Shapiro said Congress cannot pass a law letting the president set whatever taxes he wants.
Deference, engagement, and the presumption of constitutionality
Zadek introduced the concept of judicial deference and its related idea of an activist or engaged judiciary, describing a school of thought under which the Supreme Court presumes the government is acting constitutionally and gives great deference to the executive and legislative branches, against an alternative under which judges put the government’s feet to the fire and require it to prove its action is constitutional Ilya Shapiro on the Supreme Court in the Balance (2016).
Shapiro traced the shift to the New Deal, saying legal historians date it to 1937. Before then, he said, the court thought its job was to decide cases without applying a thumb to the scale for either challengers or the government, though he noted it did not always get it right, citing Dred Scott v. Sandford and Plessy v. Ferguson. After the late 1930s, he said, the court began allowing the federal government under President Roosevelt to impose regulations and national programs in ways it had not before, and bifurcated rights so that some were treated as more fundamental than others. The result was a presumption of constitutionality: between 1937 and 1995, no piece of federal legislation was struck down by the Supreme Court as exceeding the enumerated powers of the Constitution, while states could legislate in ways that infringed property rights, the right to earn a living, and occupational licensing, so long as speech or race discrimination was not involved.
Shapiro said the conservative response to what it called judicial activism was not to reject the legal theory but to ask why unelected judges were striking down laws passed by the people’s elected representatives, producing what he called a faux battle between activism and restraint. He said nobody on either side says judges should never strike down laws, and that judges should instead be engaged — scrutinizing what the other branches do and striking down what goes beyond the statutory text or constitutional provision. He named Robert Bork, Antonin Scalia, and John Roberts as judges of the school that judges should defer as much as possible to Congress or executive agencies, calling this conservative judicial passivism and saying neither it nor activism is good.
Zadek observed that a nominee who told the Senate Judiciary Committee his job was to make sure the Senate and House do not overstep their bounds would hardly be confirmed, and hardly be nominated if he said part of his mission was to restrain presidential power. Shapiro responded that the real issue is that constitutional law has deviated from the actual Constitution, so that politicians responding to incentives treat confirmation battles as examinations of candidates for political office. He said the first confirmation hearings for a Supreme Court justice were in 1916, because the nominee was Jewish — anti-Semitism against Louis Brandeis — and that the first nominee to testify at his own hearing was Byron White, nominated by President Kennedy in 1962. What he called the poisoned, politicized process began in the 1980s with Robert Bork, when Ted Kennedy attacked Bork on the Senate floor.
Separation of powers and the pandemic
In the 2020 episode on the mini-administrative state, Glenn Roper called separation of powers a fundamental American idea and ideal that helps protect us The Mini-Administrative State (2020). He cited Justice Antonin Scalia’s saying 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, describing himself as a constitutional litigator, said what ensures freedom is the structure of government — the checks and balances between the branches that hold each branch accountable. He described the legislative branch with Congress, the executive branch headed by the President, and the judicial branch, with push and pull and boundaries between them.
Zadek drew out the corollary: when the separation of powers disappears and power ends up collected in the executive alone, as he said happened because of the pandemic, bad decisions are made because the checks and balances are lost. He also framed the Founders’ design as a rejection of the idea that a single group of elites knows better than others how the country should be run, arguing that pitting political groups against one another produces collective wisdom better than that of any single branch.
The 2020 episode on the pandemic’s early months opened with Zadek saying the show would evaluate how well government performed when officials — in the executive or the legislative branch, and perhaps even the judicial branch — were asked to do their job Here comes “the spike…” (2020). The excerpt breaks off at that point.
Across episodes: no development
The legislative branch is touched on in the 2016 episode on the Supreme Court, the 2020 episode on the mini-administrative state, and the 2020 episode on the pandemic’s early months; the excerpts show no development in the treatment across them, since the later episodes do not revisit the deference debate or the confirmation history discussed in 2016.
What the sources do not cover
The excerpts do not describe the legislative branch’s composition, leadership, committees, or procedures, and they name no bill, statute, or legislative vote. They do not state what any cited case held or which constitutional amendment it turned on, beyond Shapiro’s reference to Article I, Section 8 and the Commerce Clause. The pandemic episode’s discussion of government performance ends mid-sentence, so its assessment of the legislative branch is not available. Nothing in the excerpts states a founding date for Congress or describes the branch’s powers beyond those mentioned in passing.