Separation of Powers, Supreme Court, and Constitutional Power with Thomas Bell | BRI Scholar Talks

0:05 In this episode of Scholar Talks, we will be discussing why

0:08 the constitutional principle of the separation of powers

0:12 is part of a dynamic political system.

0:15 Thomas Bell, our guest, is an Associate Professor of Political Science at Knox

0:19 College, where he teaches Constitutional Law and American Political institutions.

0:25 He’s the author of The Constitution of Conflict How the Supreme Court Undermines

0:30 the Separation of Powers, which is today’s topic.

0:34 I am Tony Williams, Senior Fellow at the Bill of Rights Institute,

0:36 and I want to welcome you

0:37 to another episode of Scholar Talks in our America 250 series.

0:42 Thomas, I want to thank you very much for joining us.

0:44 Yeah, I’m really glad to be with you. Thanks for having me on.

0:46 Hey thanks.

0:47 I love your book.

0:48 Another home run by the University of Kansas Press.

0:51 I found another great author to to publish books and,

0:54 you know, what I loved about is this.

0:56 I learned so much from reading your book, and it also challenged a lot of my views.

1:01 You know, I had a it challenged my presuppositions.

1:04 Some of my views about politics and constitutionalism and so forth,

1:08 and I love that. Right.

1:09 I mean, after all, that is the reason why we read books and discuss ideas.

1:14 Wonderful. I’m really glad to hear that.

1:16 I had a good time writing the book and,

1:19 definitely.

1:20 I think, it is kind of a reconsideration

1:23 of the nature of American government.

1:26 It kind of takes us away from our court

1:28 centered view of the way American politics works.

1:32 And so I’m really glad to be here to talk about it

1:34 with you and to kind of explore the, the, the thesis and the different case

1:38 studies that, that, I explore with that framework.

1:43 Great. Well, let’s dive right in. Okay.

1:45 So you argue, generally that the Supreme Court

1:49 should not be the major enforcer of the separation of powers.

1:54 Why not?

1:55 Yeah.

1:56 It really is the central question of the book. Right.

1:58 And the

1:58 and the subtitle that the Supreme Court undermines the separation of powers.

2:02 I think the short answer, which I’ll expand upon, is that,

2:08 the notion that the the

2:09 court should decide the separation of powers, disputes in Congress

2:12 and the president misconceived what the nature of the Constitution is.

2:17 It, the, the court

2:20 and I would venture to say most Americans,

2:24 certainly legal scholars.

2:26 Conceive of the Constitution primarily as a, as a legal document

2:30 and therefore as a legal document.

2:34 Courts in particular, lawyers, jurists,

2:37 have preeminent interpretive status

2:40 in determining what the Constitution means.

2:44 In ways that I think misunderstand

2:46 the project of the American Constitution.

2:50 And so, generally speaking, when the court thinks about separation

2:52 of powers, they fluctuate kind of back and forth between two

2:57 dominant methodologies formalism and functionalism.

3:00 And what I try and show in the book, is that both of those approaches,

3:04 while being considerably different from each other, ultimately

3:08 do the same thing and that they enforce the Supreme.

3:11 They enforce the Constitution’s limits.

3:14 As kind of an end in itself.

3:15 And so in formalism, the court wants to determine, you know,

3:21 what does the text say about

3:24 the powers that the different branches ought to exercise?

3:28 And using historical, textual, and originalist analysis,

3:32 the court tries to settle those meaning, settle

3:35 the meaning of the text in ways that kind of determine, you know,

3:39 when one branch has transgressed the textual limits of the Constitution.

3:44 When the court embraces a functionalist methodology,

3:48 it tends to the court tends to be far more deferential to the political branches,

3:52 so long as there’s balance maintained between the branches

3:57 and the even then, what the court is doing is kind of ensuring balance

4:01 to maintain the separation of powers itself.

4:04 And while the court often says what it’s doing

4:07 with both of these approaches to protecting liberty,

4:10 the court always invokes liberty and separation of powers cases.

4:14 Say, you know, we enforce the separation of powers, so that we protect liberty.

4:19 But liberty protection is always kind of secondary to what

4:22 the court is actually doing, which is largely just enforcing the text

4:27 as it understands the text or the textual separation of powers.

4:31 And any protection of liberty is is really kind of secondary

4:34 and derivative of that of what the court is actually doing.

4:37 And I also argue that, you know, sometimes liberty can be imperiled,

4:43 by enforcing the separation of powers for its own sake and that way.

4:46 And so,

4:48 it misconceived the court, misconceived the project

4:51 of separation of powers by saying it as an end in itself.

4:53 And so I spent a lot of time in the first chapter trying to say the way

4:56 that the Constitution framers, the Federalists in particular, understood,

5:01 the separation of powers as a as a means to end

5:05 there’s a system through which we achieve

5:08 ends that are both politically contingent

5:10 but also at considerable odds with each other.

5:14 And so what the Constitution does is establishes institutions,

5:19 that through their conflict, negotiate

5:23 the political crises that that confront the political community, crises

5:27 that themselves could never be predicted in advance by a constitutional framework.

5:33 And so,

5:34 you know, that we tend to think of the Federalist Papers

5:38 articulation of separation powers as kind of culminating

5:42 and the seminal essay in Federalist 51 to the 47

5:46 251, thinking about,

5:49 committing ambition, counteracting ambition.

5:52 And I want to point out one thing there is that

5:55 there’s no mention of the court and Federalist 51.

5:58 Sure.

5:59 But more importantly,

6:01 the next half of The Federalist

6:04 really thinks about structures of power.

6:07 How do you induce competing perspectives on political questions,

6:11 but also different functional qualities that are all necessary to good government?

6:16 You want a Congress that deliberates?

6:18 You need plurality, but you also need, you know, a House

6:22 in the Senate that deliberate differently with different perspectives

6:25 on public opinion because public opinion isn’t

6:27 some monolithic entity.

6:29 We have short term and long term interests, and they conflict with each other.

6:33 We need

6:34 energy and dispatch, sometimes even secrecy to,

6:37 to accomplish goals, maybe even beyond what the legislature anticipated.

6:42 And there’s not necessarily a legal answer to executive actions

6:46 that extend beyond the confines of law that can be determined

6:50 apart from the circumstances that led to those departures.

6:54 And so I, I take a lot of a I, I take a lot of,

6:59 my thesis from Federalist 37, which says, you know, the goal

7:03 of a constitutional designer separation powers isn’t to legal, vaguely demarcate

7:08 the boundaries between the political branches with with precision.

7:12 And in fact, Madison says, we I about 37 that’s there.

7:15 That’s practically impossible that we could never even begin to do

7:19 to do it, to determine what the boundaries are between Congress and the president.

7:23 The goal of constitutional designers, Madison says, is to mean goal,

7:28 competing qualities of good governments and their due proportions.

7:32 And I always think of it,

7:33 you know, mingling in their due proportions as, as, as a balancing act

7:37 that over time we have to continue to think about,

7:40 you know, how to do that through our institutions.

7:43 And so the court often thinks, who got to settle the separation of powers.

7:48 But I think that misunderstands

7:50 what the separation of powers is as institutions put end to

7:55 cooperation and

7:56 conflict with each other over time to settle political questions.

8:00 Right? Yeah.

8:00 I was just going to say, I see that,

8:02 all your case studies show this very interesting, just dynamic, greater

8:06 relationship of the political branches and both cooperation.

8:10 Right.

8:10 Sort of getting things done, having effective government,

8:13 achieving constitutional ends

8:15 still within the purview of the constitutional powers.

8:19 But also at times conflict when necessary, but to keep each other in check.

8:24 And, and that dynamic relationship propels things forward.

8:28 Right.

8:29 And actually and one thing I would add is, I think one of the things I try

8:32 and show in the book is that the court has some times

8:36 when vindicating the separation of powers or its understanding

8:39 of the separation powers itself, become the source of deep political dysfunction,

8:43 and in fact, the source of some of the controversies

8:46 that we’re having today, where the court has maybe kneecapped

8:50 Congress 50 years ago by depriving it of tools that it says

8:54 violate the separation of powers, which then mean it’s hard for Congress

8:57 to actually exercise any independent political will against the president.

9:01 And in politics today.

9:03 And it’s it can be

9:03 hard to see that larger frame when you’re looking at a particular,

9:09 instance like the tariff case, for example,

9:11 where, you know, people went to court,

9:15 and saw the court

9:16 as the vindicator of, of,

9:18 of congressional prerogatives, not recognizing that actually

9:22 the court 50 years prior had deprived Congress of its most meaningful tool

9:26 over the delegation of tariff authority.

9:30 Right. Excellent.

9:31 Well, let’s dive into some of those case studies, to illustrate the main point.

9:36 And so, so what is a legislative veto maybe.

9:40 And not a lot of yours are familiar with it.

9:41 But but so what is a legislative veto in a nutshell.

9:45 And why was it part of this vibrant

9:47 separation of powers relationship between Congress and the president?

9:51 Yeah, I mean, my chapter on the legislative veto is,

9:53 I think, probably my favorite chapter of the book.

9:55 And I think it’s because it deals with this case that actually I think has had,

10:00 perhaps the most extraordinary impact on the structure and functioning

10:05 of the American government today.

10:09 A legislative

10:09 veto is really a congressional,

10:14 response to the problem of delegation.

10:17 And so you can frame the question this way.

10:19 There’s a lot of talk about delegation today that when Congress gives away

10:23 its authority to the president or to bureaucratic agencies,

10:29 that it’s giving away power to non-democratic

10:33 or less democratically accountable entities,

10:37 and undermining Congress’s deliberative

10:39 and democratic, function and the constitutional order.

10:43 And so, certainly that, you know, you think of the non delegation doctrine,

10:48 and in the sector case, and the major questions, doctor, today,

10:52 that there’s this real concern that if Congress gives away its power,

10:55 then then we don’t really live in a republic anymore.

10:58 And what I want to say is, delegation,

11:02 the non delegation doctrine has a political insight

11:05 that is really important, but in the way I just articulated,

11:08 but maybe not as a, as a, as a judicial doctrine.

11:11 And with the legislative veto was

11:14 was when Congress delegated power

11:17 to the executive branch or administrative agencies, rulemaking power,

11:23 it retained the ability to say yes or no

11:25 to specific exercises of that rulemaking power.

11:29 And so what it basically does is reverse the order of inter branch action.

11:35 You have an authorizing statute that delegates power

11:38 subject to, you know,

11:41 a concurrent resolution of approval or disapproval

11:43 or maybe even a simple resolution of approval or disapproval.

11:49 So that Congress is ultimately in control.

11:52 And you can imagine that, that legislative vetoes,

11:55 even if they’re not used much, just like the president’s veto power,

11:59 means that they have a lot of leverage

12:02 in the formulation of rules and regulations.

12:04 And so this was a really important negotiation between Congress

12:07 and the president to, you know, Congress having a hard time getting things done.

12:13 The scale of, of, of of,

12:16 issues on the governing agenda today is, is massive.

12:20 If we’re going to accomplish goals that we have, it’s likely Congress really can’t,

12:25 just given its, its scope.

12:27 But also it’s, you know, Congress is a body of generalists,

12:31 not necessarily experts.

12:32 And so we delegate authority, but we maintain control.

12:36 I mean, what happened is,

12:39 the court actually invalidated the legislative veto and saw

12:43 it as kind of a congressional usurpation of executive power.

12:47 And this is an example of Congress running roughshod over the president.

12:50 And there were books at the time called The Fettered Presidency,

12:53 for example, that really use the legislative veto as their case.

12:57 And the big question for me is, why is the court viewing

13:00 the legislative veto as Congress running roughshod over the president,

13:03 when what’s really happening is Congress is giving away a lot of its power

13:09 to the president and then retaining

13:12 a much smaller role for itself on the

13:15 on the back side of legislation

13:18 and what the court did and i.n.s.

13:21 versus charter, which is this very important and famous case,

13:26 is say that once Congress delegates legislative power,

13:29 it becomes executive power by the mere fact

13:31 that that power is wielded by an executive branch official

13:34 and so the court has this untargeted presumption that when any branch acts,

13:40 it exercises the power delegated to it by the Constitution.

13:43 There’s an unarguable presumption,

13:45 and it’s just the starting premise for the court that it doesn’t even defend.

13:49 And in fact, in a footnote in the majority opinion, Chief Justice Burger

13:53 responds to justice Byron White’s dissent,

13:57 where white had said, well,

14:00 executive branch officials using rulemaking authority,

14:05 issue those rules without going through by camera, listen and present.

14:08 And the majority opinion says, well, the Constitution doesn’t require executive

14:11 branch officials to do that.

14:12 Was that it just brushed away.

14:15 All right.

14:16 That case is challenging because it actually dealt with an issue

14:20 that I think was unconstitutional, which was actually a deportation proceeding.

14:26 Congress had delegated

14:28 to, the attorney general the ability to

14:32 to suspend deportation proceedings and then subject to a legislative veto.

14:36 And I think that that’s that easily distinguishable, as in logic,

14:40 judicial action, that is, you know, I don’t think Congress

14:43 passing a law and the president signing it could deport an individual.

14:47 And so it’s not even a legislative veto, because even the Constitution

14:50 requirements for lawmaking aren’t supposed to make that constitutional.

14:54 But it’s had major impacts on Congress’s ability to,

14:59 over to, to both accomplish goals while maintaining Democratic oversight.

15:03 And so I mentioned the Tara example earlier.

15:05 It’s a great example of,

15:08 the tariff statute.

15:10 EPA originally had a legislative veto,

15:14 which was invalidated by the court.

15:15 And so when, when the president issued,

15:20 changed tariff rates

15:22 pursuant to that statute, Congress would have to pass

15:26 legislation that would require supermajority supermajorities

15:29 in both houses to, to to avoid the president’s veto.

15:32 And so you can see it just kneecaps Congress’s ability to say no,

15:37 especially given the Partizan incentive structure,

15:39 the Partizan breakdowns today with narrow majorities, and Congress.

15:45 Right.

15:45 So essentially, yeah, undermined, this separation of powers,

15:49 which is your, your argument.

15:51 Yeah. Yeah, yeah.

15:52 And I think that’s the of all my case studies.

15:54 That’s the one that I think,

15:57 really, has had dramatic

15:59 implications for contemporary politics that,

16:03 I would love the court to overturn charter.

16:05 I have a hard time seeing that that happening.

16:08 Okay. All right,

16:09 well, let’s move on to something else that you helped change my mind on.

16:14 So why are executive agreements,

16:17 which I thought, and I will say, some people seem,

16:21 you know, also think that they seem like kind of a runaround

16:23 around the treaty power because they’re, you know, the treaty

16:26 and making involves supermajorities, whereas an executive agreement

16:30 is simple majority.

16:32 So how does an executive agreement still support the separation of powers?

16:37 Yeah, it’s a great question.

16:39 And so the premise of the case study chapter is what the Constitution gives us.

16:44 One textual mechanism for international agreements, a treaty

16:49 which, you know, negotiated by the entered into

16:52 by the president with the advice and consent of two thirds of the Senate.

16:57 I certainly a lot of people think that the two thirds

16:59 requirement basically makes it impossible to enter international agreements.

17:02 There’s been a long time push to kind of,

17:05 have executive agreements that require majorities of both,

17:08 both houses.

17:12 What I show is that what seems controversial

17:16 isn’t really when you think about executive agreements and context.

17:21 And that context is the scope of the,

17:25 the United States involvement in international affairs.

17:32 The president has the treaty making power precisely because the president

17:34 has the ability to, to move an act to, to,

17:39 to engage and, and negotiations,

17:43 sometimes secretly,

17:46 in ways that enable, you know,

17:50 proper functioning and the foreign realm.

17:53 But the reality is that when you think about

17:56 exact agreements in practice,

17:59 the vast majority of executive agreements are pursuant to delegations of power.

18:04 So Congress actually

18:06 delegates power to enter into agreements to do certain things.

18:09 So think of foreign aid, for example, which as far as I can tell, the vast

18:14 majority of executive agreements are, are are things

18:18 related to things like foreign aid,

18:22 and, and insofar as Congress consistently appropriates

18:26 and creates these statutory authorizations, Congress,

18:30 at least in theory, is able to exercise a lot of control

18:33 over, the way the president uses that power.

18:37 In fact, a scholar in the 80s showed that oftentimes

18:41 broad based delegations demonstrated a lot of of of,

18:47 agreement between the two branches and how that power is being negotiated.

18:50 And when there was disagreement, Congress created much narrower delegations.

18:55 This is, at least in theory, and,

18:59 another scholar, Gary Schmidt, who did a lot of work on executive,

19:02 military executive agreements in the in the 80s, showed that, you know,

19:07 executive agreements is really a misnomer given

19:09 how much Congress, through appropriations and oversight was,

19:13 was deeply engaged in the substance of our of our foreign commitments.

19:18 And so the main argument that I make in that chapter is that,

19:23 given the executive

19:24 branch is unique institutional strength, it’s not surprising that

19:29 as our international obligations have dramatically increased, that the executive

19:35 that international agreements are primarily become executive agreements.

19:39 What I argue is ultimately what matters is

19:42 what are significant agreements done is treaties.

19:45 Does Congress do a nice job of both overseeing its delegated powers,

19:50 but also insisting that certain issue

19:53 areas are so important that it ought to be done as a treaty

19:56 and for a lot of our history, I think that really, was borne out.

20:01 I will note that one of the challenges of writing this and a lot of scholars,

20:06 like Jack Goldsmith,

20:09 have shown and I ran into this problem when I was researching

20:12 because I tried to actually go through and start

20:14 finding agreements on their legal authorizations,

20:16 and these things weren’t really impossible to find.

20:21 And Congress has done a lot of work now to rectify that problem.

20:23 There was really an informational gap.

20:25 How does Congress?

20:26 Congress wasn’t even aware of a lot of agreements,

20:28 and they’ve rectified that problem recently.

20:30 I don’t know what the status of that, is,

20:33 but they definitely passed new legislation to require an informational record.

20:39 The one

20:41 I spent a lot of time talking about, the Rand agreement.

20:43 I think that’s a really good example of Congress, actually.

20:47 You know, the president actually was purely

20:49 had legal authority to waive,

20:52 sanctions against Iran based on delegated authority

20:54 he already had in Congress said, well, even if you have that power,

20:58 you’re changing our foreign policy significantly.

21:01 And so we should have a say and we really shouldn’t.

21:04 And the, the, the,

21:06 the Iran Agreement Review Act that Congress passed was was a significant

21:10 expression of congressional power, but ultimately done.

21:12 So I argue in the book in a way that inverted the treaty process,

21:15 because what they did was say we need a joint, resolution of disapproval,

21:21 which means the, you know,

21:25 only it can go in effect with only one third

21:28 of Congress supporting it

21:31 and which I which is why the argument I made was that means members of Congress

21:35 can can can vote no, knowing that Novo has no meaningful consequences.

21:40 So you can actually, private support it and vote no on political reasons,

21:45 but not actually deliberate on the actual stakes.

21:48 And so the point of the chapter is to say, you’ve really got to think

21:51 about the political dimensions of executive agreements, that

21:54 if you only focus on the treaty clause itself, you miss the, the,

21:59 the, the, the ways that Congress exercises its political capacities

22:04 well beyond, what you see, if you focus on the text itself.

22:08 So the last case study and how is, congressional investigations,

22:12 especially the impeachment power, strengthen the separation of powers?

22:16 Yeah.

22:17 This this was the last case

22:19 study I wrote, and I wrote it,

22:22 right after the second

22:23 impeachment of President Trump.

22:27 And the main kind of argument

22:31 of that chapter is, you know,

22:34 given the architectural view, the articulate in the book,

22:39 you know, Congress gets a lot of power to the president,

22:41 and the president has a lot of outsized powers.

22:43 And some of those powers are kind of prefigured in the Constitution line.

22:46 But they that energy dispatch,

22:51 able to meet challenges not anticipated by standing law

22:55 are all kind of built into the separation of power system.

22:58 As I understand it.

22:59 And but if presidential power grows, as the needs of the nation

23:03 expand and presidential power needs to grow

23:05 to meet them, Congress’s powers have to grow as well.

23:09 And kind of an a value and an evaluative and kind of post

23:14 hoc, sense, which is, say, Congress investigation

23:17 of impeachment, that the president might move first.

23:20 But Congress ultimately has the last word in evaluating presidential conduct

23:25 by being able to actually remove fire and remove from office.

23:29 The president.

23:31 And so what I do is

23:32 I look at kind of three different dimensions of congressional oversight.

23:35 And so how,

23:39 legalistic

23:40 understandings of those powers have undermined Congress in the long term.

23:44 So, for example, I look at executive privilege, Congress has subpoena power,

23:48 to Congress, go to court, support to enforce its own subpoenas.

23:53 And what I show is, you know, there might be valid reasons

23:57 for the presidents to keep information from Congress.

24:00 Those those reasons, the secrecy is

24:02 is circumstantially contingent, though, is the secret you’re

24:06 keeping from Congress being kept for a good reason.

24:11 And what’s happened over time, especially with the president’s

24:14 Office of Legal Counsel, is they’ve they’ve understood

24:17 executive privilege as a as an inherent right of the presidency

24:20 that must be protected.

24:21 So presidents today don’t even invoke executive privilege.

24:24 Often they say we can’t answer that question because we need it.

24:26 We need to protect the president’s ability to invoke executive privilege later on.

24:32 And as Congress then goes to

24:33 court to enforce its subpoenas, you know, it takes forever.

24:37 Oftentimes it’s no longer politically relevant.

24:40 A new Congress is seated.

24:42 But more fundamentally,

24:45 it acts like there’s a legal answer to the question,

24:49 when whether or not something ought to be secret or not is is a political question.

24:54 And then I look at impeachment.

24:57 But the most scholars,

25:00 I think, understand and understand that impeachment extends beyond,

25:05 indictable offense, as are crimes to political offenses, abuses of power.

25:10 But in political practice, it’s largely

25:13 only been exercised for violations of the law.

25:17 And what I think is that ultimately that that that makes it impossible

25:22 for Congress to, to control abuses of power,

25:24 to have political disagreements with the president.

25:28 And you saw that in both of the, as they are

25:30 the impeachments of the president when the first impeachment,

25:34 you know, why is it a quid pro quo or not?

25:36 And we’ve got to look at the legal question.

25:38 And the president’s lawyers ultimately argued what wasn’t the crime.

25:42 So it’s not impeachable.

25:43 So even if the call took place, even if the factual record is accurate,

25:46 it’s not an impeachable offense.

25:47 And that was then the basis of, of the of the Senate resolution, with Republicans

25:51 acquitting the president.

25:52 But even Democrats,

25:55 you know, they were motivated to impeach, not by the just the quid pro quo.

25:59 There was a lot of larger context, the way the president used his powers

26:03 and abused his powers that provided greater context.

26:06 And the quid pro quo became, we found the open and shut legalistic case,

26:11 and they were constrained by these larger political conceptions of impeachment

26:14 that made it harder for them to make a political case

26:16 about why the president needed to be removed from office.

26:20 And you saw

26:20 the same thing in the second impeachment, you know, was in sight.

26:24 Mark.

26:26 You know, it

26:28 was he protected by the First Amendment?

26:30 Not whether or not the incitement was an abuse of power

26:33 that that required impeachment and even even, post hoc,

26:38 you know, post-presidency removal and disqualification.

26:42 And when that last section, I say, you know,

26:47 the, the moved to punish political transgressions

26:50 through criminal prosecution and I certainly,

26:53 make the argument I understand why

26:56 prosecution was essential once all the other

26:59 political remedies weren’t used, but the Congress’s own abandonment

27:03 of its own powers or narrow conceptions of its powers

27:07 left us in this horrible situation where the only way,

27:12 to punish the president’s lawlessness was through prosecutions,

27:15 which is always going to raise substantial challenges for our political community.

27:21 Right.

27:22 So you’re saying if Congress sees its own power as only being able

27:25 to impeach a president for actual crimes

27:28 rather than misdeeds in an office, then, it’s it’s really limiting

27:34 that very strong, constitutional,

27:38 political, ability to and the separation of powers to,

27:42 to push back on the, on the presidency or, or the Supreme Court.

27:47 When one way you might think about it, you know,

27:49 if impeachment is a valuable tool of Congress, it empowers Congress long

27:53 before the actual exercise of that power, kind of like the veto power.

27:56 For example, if Congress knows where the president’s veto point is

28:00 and they’re going to negotiate with the president to move legislation

28:03 closer to the president’s preferred position.

28:05 So I think same with impeachment.

28:07 If a president knows they could be impeached,

28:10 Congress is empowered

28:13 much less you can use other powers long before impeachment continues.

28:17 The president politically. Right.

28:20 And as you say, it’s just in this very dynamic relationship.

28:23 Which leads me actually to my my last question.

28:25 So why don’t we jump into that?

28:26 Why is the constitutional principle of the separation of powers

28:30 part of a dynamic political system, the context of the political branches?

28:35 Yeah.

28:35 I mean by calling it by saying the separate charge dynamic recognizes

28:39 the way the separation of powers actually works.

28:42 And so I think the way we tend to think about the separation of powers,

28:44 we think of as a legal principle that it’s fixed

28:47 and that legal analysis can help us determine,

28:53 the exact limits of governmental power.

28:55 And that’s just not the way

28:56 that the Federalists talk about the purposes of the Constitution.

29:00 The constitutions are about achieving ends that we don’t that we don’t know.

29:05 We don’t even know what questions will arise.

29:07 How can we script answers?

29:09 And so to say that the what, the

29:11 what the Constitution does is it sets into motion

29:14 a dynamic political system that through interaction

29:18 between the branches, helps settle certain questions over time.

29:23 And that’s not to say settles them rightly.

29:25 That’s not to say that there’s not deep disagreement

29:27 in politics about what the limits of the different branches are.

29:31 But the idea of, you know, federal 51 is

29:34 you give members of each branch the moat, the means and the motives.

29:39 And I think that’s one of the challenges today.

29:41 And I articulate this in the book,

29:43 thinking about hyper partizanship in the separation of powers.

29:46 It’s really hard to imagine today, Congress

29:49 standing up against a president of their own party.

29:53 You know, it’s, you know, just think back to the first Trump impeachment.

29:56 I mean, the second article of impeachment was,

30:00 was related to the the unprecedented obstruction

30:05 of Congress as on processes regarding their, subpoenas.

30:11 And, you know, that’s not really the article impeachment

30:13 we talk about, but that’s the one that actually the present arguments.

30:19 Basically disempowered Congress

30:22 from any oversight over the executive branch.

30:25 And not a single Republican fought for, for those prerogatives.

30:30 And so,

30:31 in the book, I think of, you know, what the framers

30:35 understood that the way people run for office,

30:38 who elect who, who, who elects them to office.

30:43 These all matter for how someone,

30:46 performs in office

30:48 and so I think, there’s a lot of work

30:50 to be done to think about how members of Congress

30:53 who they’re accountable to and in ways that would help

30:56 achieve more majority outcomes and help people think about the common good,

31:01 more than,

31:03 kind of narrow and extreme constituencies that are the first people to answer to.

31:09 Right.

31:10 Super important point.

31:11 To end on, I love it.

31:12 So, Thomas Bell, I want to thank you very much

31:14 for discussing your book on constitutional principles.

31:17 How appropriate, as We Celebrate America 250.

31:21 And I’m really glad to be with you. Thank you.

31:23 All right.

31:23 Thank you.

31:23 And thank you all for joining us

31:25 on this episode of Scholar Talks in the America to 50 series.

31:29 Check out the other interviews in the series on our channel and click subscribe.