Battle of the Branches

In Trump v. CASA, the Supreme Court decided a technical question of judicial relief that has big implications for the separation of powers, the role of the courts, and executive power. It limited what are called “universal injunctions,” where a federal court invalidates executive action everywhere, not just for the people who brought a case.What is the legal justification for this decision? What are the practical consequences? Why did it happen now? And what are the political implications – and maybe even political causes – of the ruling? What does all of this tell us about future battles between the executive and judicial branch?To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Ethan Bueno de Mesquita, the Dean and Sydney Stein Professor at the Harris School of Public Policy, and Samuel Bray, a Professor of Law. Ethan is an expert in politics and political economy, Sam is the leading scholar of the law of equity.I brought them here to get a handle on this decision, and as you’ll see we approach it from several different angles – technical legal questions, institutional politics, and judicial strategy – that takes us to some interesting places. And if you want more Supreme Court content, check out my other podcast, Divided Argument, an unscheduled, unpredictable Supreme Court podcast that I record regularly with Professor Dan Epps – available wherever you get your podcasts.But now, have a listen.

Do we have a free and robust public forum for ideas in America today? What has the government done to try to influence that public forum, and where does the Constitution’s protection for freedom of speech come in? Can the party in power pressure private companies, social media companies, or universities to favor its views? Do the same problems arise from private pressures to toe the party line? And what about the tensions between elites and institutions and those who feel left out of them? To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Genevieve Lakier, a Professor of Law and the Herbert and Marjorie Fried Teaching Scholar in the law school, and Anthony Fowler, the Sydney A. Stein Jr. Professor in the Harris School of Public Policy. Genevieve is an expert in constitutional law and free speech, Anthony is an expert in American politics.I brought them here to get a handle on these big questions, and as you will see, they disagree from the jump. This is an especially lively and important conversation.Have a listen.

The federal government employs millions of people across a huge range of subjects. Who is in charge of them? Does the President, and the White House, ultimately have total control over the entire executive branch? Or are there aspects of the bureaucracy that are, or should be, outside of presidential control? To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Jennifer Nou, the Ruth Wyatt Rosenson Professor of Law in the law school, and Jon Rogowski, a professor in the department of political science. Jennifer is an expert in administrative law and the separation of powers, as well as a former senior advisor at the Office of Information and Regulatory Affairs in the executive branch. Jon is an expert in American politics, the growth of the beauracy, and the presidency. He is the author of a book, No Blank Check: The Origins and Consequences of Public Antipathy towards Presidential Power (with Andrew Reeves).I brought them here to discuss the legal and political relationships that matter in the executive branch. I will add that this is an area that has recently been before the Supreme Court, in a decision called Trump v. Wilcox that stopped a member of the National Labor Relations Board and a member of the Merit Systems Protection Board from reclaiming office after they will controversially removed by President Trump. And as we discuss, I think these issues will be back in front of the Court soon, so we conclude by talking about what may happen, and it what it will mean.Have a listen. 

Can democracies fall? What does it look like when they start to slide? What are the tipping points? These are some of the big questions I find myself asking as I look at a wave of unsettling changes in government around the world – and wonder whether it has happened here in the past or will happen here in the future. What are the key ingredients in democracy – indeed, what exactly is democracy, anyway? And what are the threats to those ingredients? When we see democratic systems weaken, how and why does it happen? And is it happening here? What differentiates this kind of “democratic backsliding” from ordinary democratic regime change?To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Sue Stokes, the Tiffany and Margaret Blake Distinguished Service Professor in political science, and Aziz Huq, the Frank and Bernice J. Greenberg Professor of Law here in the law school. Sue is the director of the Chicago Center on Democracy, the President-elect of the American Political Science Association, and the author of six books on democratic theory and democratic erosion. The latest one, which is about to come out is The Backsliders: Why Leaders Undermine Their Own Democracy. Aziz is the author of books and articles across a huge range of subjects, including How to Save  Constitutional Democracy (coauthored with Tom Ginsburg) and The Rule of Law: A Very Short Introduction.I’ve brought them here to help me understand what democracy is, what it isn’t, and what can happen to it – not just here but around the world.Have a listen.

When it comes to conflicts and diplomacy abroad: Who holds the reins? That’s one of the big questions I find myself asking as I look at the news about American involvement – whether in Iran, in Ukraine, or throughout American history. What is the scope of the President’s power over war and foreign affairs? Doesn’t the Constitution constrain those powers, or give Congress the ability to constrain those powers? Or have legal constraints proven unworkable or unwise over time? If the President has come to dominate American military and foreign policy, should we have misgivings about that, or accept it? To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Curt Bradley, the Allen M. Singer Distinguished Service Professor of Law, and Austin Carson, an associate professor of political science. Curt is an expert in constitutional law and foreign relations law, the author of casebooks and legal restatements on foreign relations, and has recently published an important book: Historical Gloss and Foreign Affairs: Constitutional Authority in Practice, and is working on a new book on US Sovereignty and federal power in constitutional law. Austin is an expert in secret and intelligence and their relationship to international security and global governance. His first book was Secret Wars, Cover Conflict in International Politics, followed by Secrets in Global Governance: Disclosure Dilemmas and the Challenge of International Cooperation (coauthored with Allison Carnegie), and he’s now working on a third: To Spy on the World: The Infrastructure of Intelligence and America’s Rise to Power.I’ve brought them here to help me understand how the executive projects American power around the world and what we should think about that.Have a listen.

How did we get here? That’s one of the big questions that I find myself asking today as I think about the past decade or so of our government. We’ve seen Presidents from both parties exercising broad powers—sometimes doing things I agree with, sometimes doing things I very much disagree with; sometimes provoking major political or legal controversy, and sometimes not. How much can we learn from our own history? Does the present-day “battle of the branches” have antecedents in the past? What were those past battles about? Who won them? And how did those battles set us on to the path we’re on today? To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Alison LaCroix, the Robert Newton Reid Professor of Law, and Jim Sparrow, an associate professor in history and the college. They both study American history. Alison has published two books – The Ideological Origins of American Federalism and most recently The Interbellum Constitution: Union, Commerce, and Slavery in the Age of Federalisms. Jim’s book is Warfare State, and he is completing a sequel: Sovereign Discipline: The American Extraterritorial State in the Atomic Age as well as a third book project: The New Leviathan: Rethinking Sovereignty and Political Agency after Total War. I’ve brought them here to help me understand the broad sweep of power shifts throughout American history. Let me add that in my experience many expert historians can have something of a narrow focus, because history requires an intense immersion in a lot of details. But Jim and Alison are especially great in their ability to consider the big picture – and therefore to help us understand where we are today and where we’re going.Have a listen.

Who checks the Executive? That’s one of the big questions that I find myself asking as I read the news, thinking about all of the things the executive branch can do, all the real “power on the ground” the President seems to have. And that’s something I’ve been thinking about for over a decade, across Presidents from both parties, as each new President takes bold actions that his supporters cheer on and his detractors decry.Now I teach constitutional law here at the University of Chicago. So I know what the answers are in theory. The separation of powers. Congress. Federalism. The states. But how do those institutions really function? What do their interactions with the executive branch look like, in times of cooperation and times of conflict? Do we even have a “battle of the branches” or does that presuppose a battle that isn’t really happening?To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Ruth Bloch Rubin, an associate professor of political science, and Bridget Fahey, a professor of law. Ruth is an expert in Congress, and political parties. Bridget is an expert in federalism. And I’m hoping to bring them together here to talk about whether Congress and the states still play a role as counterweights to the executive branch today. Have a listen.