Season 2, Episode 1 | Does the Separation of Powers Actually Make the Government More Powerful?

What if the very system designed to keep our leaders in check… is starting to fail?

In this episode of This Constitution, hosts Savannah Eccles Johnston and Matthew Brogdon kick off Season 2 with a deep dive into the delicate balance of power in the U.S. government. They break down the difference between checks and balances and the separation of powers—two critical mechanisms that prevent tyranny.

Through fascinating historical moments like FDR’s court-packing plan and Nixon’s resignation, they reveal how these principles have been tested over time. But what about today? With rising partisanship and a weakened Congress, are we at risk of losing the safeguards that keep our democracy intact?

Join the conversation and discover why your voice matters in upholding these fundamental protections. Listen now and stay engaged in the fight for a balanced government!

In This Episode

• (00:00:27) Introduction to Season Two
• (00:01:12) Importance of Checks and Balances
• (00:01:26) Distinction Between Concepts
• (00:02:08) Separation of Powers Explained
• (00:02:12) Checks and Balances Explained
• (00:03:27) Historical Context of Governance
• (00:04:06) Ambition and Self-Interest
• (00:07:19) Montesquieu's Influence
• (00:09:07) Constitutional Checks and Balances
• (00:10:24) Presidential Powers Against Congress
• (00:12:02) Impeachment Power Discussion
• (00:12:23) Judicial Review Explained
• (00:13:18) The Rule of Law and Judicial Process
• (00:14:11) Checks on Supreme Court Power
• (00:15:13) FDR's Court Packing Plan
• (00:16:12) Response from the Senate Judiciary Committee
• (00:17:14) FDR's Overestimation of Support
• (00:18:26) Checks and Balances in Action
• (00:22:29) The Nixon Administration Scandal
• (00:24:07) Supreme Court's Role in Nixon's Case
• (00:25:36) Goldwater's Intervention
• (00:26:25) Challenges to Checks and Balances Today
• (00:27:38) Exploring Congress's Weakness
• (00:27:50) Presidential Influence on Congress
• (00:28:08) Role of Voters in Checks and Balances
• (00:28:45) Public Attachment to Constitutional Principles
• (00:28:56) Civic Education and Public Perception
• (00:29:54) Improving Constitutional Education

Notable Quotes

• [00:04:06] "Checks and balances work because John Thune, who's the Senate Majority Leader, wants to be as personally powerful as possible, and he knows that his power is only as great as the power of his institution." — Savannah Eccles Johnston

• [00:05:12] "You can have people who are all pursuing good things at the same time, and the pursuit of those good things could come in conflict." — Matthew Brogdon

• [00:14:11] "The best moments in American political history are when two institutions, or even just one, turn and look at the overreaching institution and say, 'Keep them in their place.'" — Savannah Eccles Johnston

• [00:28:56] "People do need a public attachment to things for them to be lasting and durable, and I'm afraid that the way we teach the American government might be a little bit guilty here." — Matthew Brogdon

Resources and Links

This Constitution  

• https://podcasts.apple.com/us/podcast/this-constitution/id1771900485
• https://www.youtube.com/@centerforconstitutionalstu8915/videos

Transcript

We the people do ordain and establish this constitution.

Savannah Eccles Johnston:

[00:00:37 - 00:00:45]

Welcome to This Constitution. My name is Savannah Eccles Johnston.

Matthew Brogdon:

[00:00:45 - 00:01:12]

And I'm Matthew Brogdon.

Savannah Eccles Johnston:

[00:01:12-00:00:01:21]

And today we are going to welcome you to Season 2 of This Constitution. Now, in Season 1, we focused on the powers and limitations of the American presidency. And so you'd think Season 2, okay, they're going to march us through Congress or through the judiciary. But that's not what we're going to do.  Instead, we're going to spend an entire season speaking about checks and balances. And I think we should probably justify ourselves here. Why are we going to spend an entire season marching through checks and balances?

Matthew Brogdon:

[00:01:21- 00:01:26]

Well, it's where we duke it out. Whenever we have disagreements in politics, if there's going to be a fight, these are sort of the scenes of the battle—these places where the different institutions in our constitutional order have their conflicts.

Savannah Eccles Johnston:

[00:01:26 - 00:02:08]

This feels very relevant if we're going to have a big political fight, which I do feel like we are in the middle of and are perpetually in the middle of. We should talk about checks and balances. But first, we need to understand the difference between checks and balances and separation of powers. Because these two terms are just thrown together. You're always, oh, it's, you know, the separation of powers and checks and balances system. But they're distinct. They have different functions. So let's break it down first. So when I think about separation of powers, if I were to give this as an introduction to an American politics quiz, it would just be the separation or the division of  power into different institutions, into different branches. That's it. That is not checks and balances. How would you explain checks and balances?

Matthew Brogdon:

[00:02:08 - 00:03:27]

Well, I mean, checks and balances are actually violations of separation of powers. Okay. I mean, separation of powers is a division of labor. You know, we've got an institution that's good at executing the law, like in doing law enforcement. It's good at commanding our military, making decisions about how to act in a particular set of circumstances. And then we've got an institution that's designed to deliberate on the general rules we all have to obey. And you don't really want the same institution doing both of those things. But checks and balances is really where we say, well, we're going to violate that separation. We're going to allow the president to get involved in the legislative process of making laws and say, no, no, you can't make that law. It's what the veto is, or Congress getting involved in the president's appointment of executive officers, their confirmation power. So I think that's a helpful way to think about it. It also is important to recognize that separation of powers is actually about making the government more powerful,  not necessarily making it less. I think it's a huge misconception. Separation of powers is all about frustrating the exercise of power or making the government weaker. It's in fact the case that you would not want the same institution trying to hold trials and decide guilt and trying to make your laws, because the people you'd staff that institution with, the kind of processes they use, the kinds of rules that control them, just should not be the same. And we wouldn't really benefit if they were.

Savannah Eccles Johnston:

[00:03:27 - 00:04:57]

Right, so if we kind of put this in historical context, when you are creating the U.S. Constitution, you're not trying to create a weak form of government. You're trying to create a powerful but limited form of government. And one of the big issues you have to deal with, which we spoke about at length in season one, is how do you create a powerful presidency capable of handling a crisis that doesn't devolve into tyranny? And step one is separation of powers, but step two, you kind of think of this as like a Venn diagram, overlap those institutions, give them gray areas that they have to fight over, and give them  offensive and defensive weapons to use against each other, to prevent encroachments by one branch against the other. And then you just say, go to war. Yeah. And all of this relies on ambition and on channeling self-interest. This is one thing I really appreciate about the American founding, is it is not a rosy picture of human nature. They really expect politicians to act self-interested. So, for example, checks and balances works because John Thune, who's the Senate Majority Leader, wants to be as personally powerful as possible, and he knows that his power is only as great as the power of his institution, of the Senate and of Congress writ large. And therefore he will act to protect the institution from encroachments by the President and by Congress. That's pitting ambition against ambition. That's what makes checks and balances work. We just lean into the dark side of human nature.

Matthew Brogdon:

[00:04:57 - 00:06:27]

The dark side of human nature, that's such a good  phrase. And we do that, but Madison and the other founders who talk about this sort of thing, you know, that you've got to make ambition counteract ambition, are not just down on human beings as horrible people. They're also recognizing the fact that you can have people who are all pursuing good things at the same time. And the pursuit of those good things could actually come in conflict. So the pursuit of national security, which is not a bad thing, can easily come into conflict with political stability or the rule of law. So, you know, those are pretty simplistic examples, but that is actually what politics is often about. There's a whole lot of good things that we all want to accomplish, and accomplishing them can be at cross purposes. So you actually have people involved in politics who can all be well-motivated. None of them are thinking, I want to destroy human life. You know, occasionally there's a terrorist floating around doing this sort of thing. But in general, everybody's seeking things that they think are good. They want human  beings to be happy and safe. But even then, you can get these collisions over what ought to be done and work in different directions. And so, I think even at that level, you don't have to think that human beings are just downright wicked to think we're going to have conflicts, serious conflicts, and we've got to resolve them. So, I think it's a realistic view of human nature. It's being realistic about the fact that we're not all in pursuit of the same thing at the same time.

Savannah Eccles Johnston:

[00:06:27 - 00:07:19]

Yeah, thank you for pushing back on an overly pessimistic view there. That's why we keep you around, is for your optimism. That's right. You're a very sunny individual. So, but it is nonetheless true that they do acknowledge the role of self-interest in government, even in pursuing good things and establishing a legacy for yourself. And this will be one of the great anti-federalist critiques, as they're relying too much on self-interest and not enough on building civic virtue. But that is beside the point. Let's go back to power. And how you allow a government to exist that is powerful  enough to be effective but also kept in its sphere, and that's checks and balances and this idea. We find early on, for example, in Montesquieu, and you have brought Montesquieu's book here with you. So talk about Montesquieu for just a second. And what does Montesquieu have to do with checks and balances?

Matthew Brogdon:

[00:07:19 - 00:08:44]

Yeah, Montesquieu is the most widely read political philosopher at the founding, which, you know, if you were to poll people and say who were the American founders reading? There aren't very many Americans who would probably be like Montesquieu, absolutely. But he does get cited all the time in the Federalist Papers. And he's cited by the Founders most prominently for the claim, the, I guess you could almost call it a basic principle or maxim, that the combination of all powers, executive, legislative, and judicial in the same set of hands is the very definition of tyranny. That's such a good quote. Yeah, it's good. I mean, it's very catchy. It's very easy to explain. And it's kind of intuitive, but it's also important to recognize that that was not a universally  held view among people who wanted Republican or popular government at the time of the American founding. In fact, under the British government, a good example, the British constitution, the executive and judicial powers were basically both parts of the royal authority. They're part of the king's authority. So the executive, there wasn't really a distinction between the executive and the judiciary. So this notion that we really need to separate out these functions isn't altogether new. People have been debating it since Aristotle and the Greeks, but the conviction that you really had to keep these three kinds of power separate did really come out strongly in the American founding, and Montesquieu is absolutely the sort of prophet of that view.

Savannah Eccles Johnston:

[00:08:44 - 00:09:07]

Right, so let's give some examples of this, because we, we, we are just fighting over this, keeping them separate and well-balanced for our entire history. Before we give some concrete examples that are, I think, excellent, let's just walk through constitutionally. What are some of  the checks and balances, for example, what are some of the powers that Congress has to restrain an overly ambitious president?

Matthew Brogdon:

[00:09:07 - 00:09:54]

Well, there are a lot of them. Sometimes people talk about these as veto points in a system, like these are places where you can look at the other person and say, no, you can't do that and get in their way. So really obvious ones, the spending power. And we discussed that a bit in season one, how Congress's power of the purse forms a check on the executive. The executive can't spend money unless Congress appropriates it. Another good one's the confirmation power. The president can't even staff the senior positions in the executive branch, the people in his cabinet and who run the executive agencies, without the Senate helping out, without the Senate confirming his appointees. So those are pretty significant. If you don't have money and you don't have personnel, I mean, the president can't accomplish a lot on his own.

Savannah Eccles Johnston:

[00:09:54 - 00:10:24]

No, true. And then, of course, they have a veto override. It's kind of a nope to the president's  nope. And the nuclear option. You have impeachment. You can simply remove this person from office and prohibit them from ever holding a position of trust or authority in the United States again. That is a rather significant weapon. So, the poor American presidency, how do they stand up to such a powerful Congress? What checks, what weapons does the president have to counter the ambitions of Congress? How does this person stay?

Matthew Brogdon:

[00:10:24 - 00:10:36]

Well, I think the framers thought the veto power was the most important of those. Though, comparatively, I'm not, I'm not sure it gets used as much as some of the framers of the Constitution thought it might be used.

Savannah Eccles Johnston:

[00:10:36 - 00:10:38]

What's the threat that's used? It seems to be most effective.

Matthew Brogdon:

[00:10:38 - 00:12:02]

It will be, and worth pointing out, by the way, that it's a qualified veto. So, the President can, as you already pointed out, the Congress can reverse a President's veto. A President can refuse to sign a law, return it to Congress with a list of his objections to it, which the Constitution says he has to do, and then Congress can override it by a two-thirds vote.

And that happens quite a bit.  Andrew Johnson during Reconstruction, Lincoln's successor, vetoed all kinds of stuff, and Congress had a big enough Republican majority. They just overrode his veto repeatedly. I mean, that's an important power. But it's interesting that Madison in the Federalist Papers has this aside in Federalist number 51, where he says, well, you might think that we decided on a qualified veto because we wanted to weaken it. He said, actually, the reverse is true. He says, if the president had an absolute veto, we're afraid he wouldn't use it very much. We actually qualified it to make sure he'd be more willing. In other words, you make it a nuclear option, and it's a big deal. The president's going to hesitate to use such strong medicine. But if you kind of weaken it a little bit, then the president's more willing to veto stuff because it's not the end of the debate. Congress can override it. And that does seem to have been borne out. Like, I mean, presidents veto stuff in part because, you know, well, if Congress got a big enough  majority, let them come to repass it.

Savannah Eccles Johnston:

[00:12:02 - 00:12:15]

OK, this is such a great insight. And you can use it to view the impeachment power as well, which is something that has never actually been fully wielded for a president. Right. No one's ever been convicted as a president. So that's, uh.

Matthew Brogdon:

[00:12:15 - 00:12:20]

I mean, Congress has impeached tons of people, but no presidents. Right.

Savannah Eccles Johnston:

[00:12:20 - 00:12:49]

No Supreme Court justice. Well, okay. Well now let's go to the Supreme Court then. How does the Supreme Court play in this game? How do they push back against Congress and against the president? You don't think of them as quite as powerful, but they certainly have the capacity. So for the Supreme Court, it's judicial review.

They have the power to strike down acts of Congress or to tell a president, no, that executive order is unconstitutional. And there is no veto override on the Supreme Court. I guess you could change the U.S. Constitution, but that's about it.

Matthew Brogdon:

[00:12:49 - 00:14:11]

Well, and we talk about it, we talk about striking down laws, which they do.

And so we think of it like a veto, like, well, the president can veto laws. And then the judiciary can  kind of veto a law by reviewing it and deciding, well, that law is unconstitutional and so you can't enforce it, which is mostly right. He said that it is helpful to think about exactly what's happening whenever they do this.

The judiciary is basically saying, we won't help you enforce this law. They're refusing to enforce the law. And that's a really strong check. Because we have the rule of law. And the rule of law in part means, if you're going to go enforce a law, take away somebody's property or threaten their life or their liberty, you have to have some kind of judicial process involved in it.

That's what the rule of law means. And so if the judges say, we're not going to enforce that law, the case will be dismissed. Then you're kind of faced with the choice of discarding the rule of law and the president can go ahead and just do it to the person anyway, without the help of the judges, or you're just at a stand, like you can't enforce the law anymore.

So this is really interesting, like many checks and balances, it's where an institution refuses its  aid. It's not like it's reaching out and telling the president, knock that off. So much is just saying, we're, we're not going to help you with this. We're going to refuse to help you enforce this law or lend any kind of judicial aid to it.

Savannah Eccles Johnston:

[00:14:11 - 00:16:54]

Right. Okay. So, this is a rather powerful moment, a powerful check for the Supreme Court. What kind of a check does the Supreme Court have on its own power? And these, these are significant. So Congress decides the sheer number of Supreme Court justices. It's purely up to Congress. Nine is a number chosen in the aftermath of the Civil War.

That's it. And what powers does the president have over the Supreme Court? Well, he gets to nominate Supreme Court justices with the advice and consent of the Senate. So there is a, there's this great balance that's occurring between the three branches. And I think the best moments in American political history are when two institutions, or even just one, turn and look at the overreaching institution and say, uh uh, and keep them in their place.

And we've got a couple of examples we want to talk about today. Let's start  with FDR and his court-packing plan. So it's 1937. And FDR is the god of the Democratic party. He's in his second term. Congress is passing all of his New Deal legislation. But the Supreme Court is, uh, being rather unhelpful and keeps on, uh, striking down, or as you say, refusing to enforce portions of this New Deal legislation.

For example, the National Industrial Recovery Act. And, uh, FDR's response is, who are you to stand in the way of the will of the American people? Why should the Supreme Court be wedded to a dead constitution and not allow the American people to create this and act upon this living constitution? And so he and his attorney general get together and they're like, We can solve this.

And the answer is, we're going to pack the court. Effectively, what this means is FDR gets one new Supreme Court justice for every justice over the age of 70, already on the court. So this would increase it up to  16. Okay, but you can't just say that to the American people. He also has to say, and also they're overworked.

We got to help them out. Send a maid. Their docket is too overloaded. So this makes its way to the Senate Judiciary Committee, and the first big response will come from a letter from the Chief Justice of the Supreme Court to the Senate Judiciary Committee. And this letter is all of FDR's reasons for this.

Forget them. We don't need more help. We're not overworked. This is a gross encroachment on, uh, the independence of the judiciary. And what's unique is signed at the bottom isn't just the Chief Justice, who's more conservative-leaning, but Justice Brandeis, who's a liberal as well.

Savannah Eccles Johnston:

Hmm. And then you get the Senate Judiciary Committee.

And what is, their response, I think, is epic. They're Democrats. This is a Democrat-controlled Senate. So how do they respond to this letter from the Supreme Court and to FDR's plan?

Matthew Brogdon:

[00:16:54 - 00:18:54]

Oh, I think it's, it's dead on arrival. I mean, if I'm not mistaken, I think the committee chair and the House and  the Senate for the relevant committees told the Roosevelt administration before it ever arrived in Congress that there's not much chance of this working out.

And um, it never makes it out of committee. I mean, the bill's never reported to the floor of the Senate. So it's pretty clear that the court and, and Congress. And it's important to note, I mean, you note that Democrats are in control of this. It's not just that Democrats had control of Congress. They had supermajorities in Congress.

Like, I mean, post-civil war level supermajorities. Roosevelt and Democrats had won a landslide. And so it's particularly sort of insulting to FDR that even with the supermajority, even with a court that was not totally unfriendly to the New Deal, he couldn't get it. It's also worth noting that the cases he was complaining about most loudly were actually unanimously decided cases.

So,  yeah, you mentioned the National Industrial Recovery Act. This was huge. This was the biggest of the New Deal recovery programs, the biggest expansion of the federal government's regulatory power, and the Supreme Court unanimously declared it unconstitutional. And it infuriated Roosevelt that this was the case.

And so it really was one of those moments where the president grossly overestimated the degree to which they represented the country. I mean, this is one of those moments when one of the values of checks and balances is that an institution will often have this conceit that I won, I'm in control of the institution, the people must want what I want.

And one of the critical aspects of checks and balances is that it allows other institutions who represent the people or the country in a different way through a different kind of institution and maybe with different constituencies sort of fix that misconception.

Savannah Eccles Johnston:

[00:18:54 - 00:19:40]

This is such a good point and it almost always seems to be the president who has that conceit.

That kind of grossly  overestimates their own authority. So, the chairman of the Senate Judiciary Committee will respond to this request by basically saying we have to so thoroughly bury FDR's plan that future generations won't even think of this. It has to be so humiliated as a plan because it's, in his mind, the greatest overreach ever by a president on another branch. Greatest encroachment on the independence of the judiciary. So it wasn't just that it got a no vote from the Senate Judiciary Committee. We are burying this. That's how important it is to this checks and balances system. He uses extreme language in this report back to the committee of the whole. It's quite something.

Matthew Brogdon:

[00:19:40 - 00:19:53]

Do you think that's in part because, because FDR was, was disingenuous about his reasons? I mean, he concocted this, there's too many old guys on the court and they need help arguing when everybody really knew that his issue was political?

Savannah Eccles Johnston:  

[00:19:53 - 00:20:31]  

I think that's a very interesting point.   I think they were bothered by the, "Stop lying to us. We know that's not actually the reason you're doing this." [00:20:00] Yeah. But it kind of works out just fine for FDR, because very soon after this, the court—and people argue about why—kind of flips on the New Deal legislation. And I don't think he has another major piece that is overturned by the Supreme Court for the rest of his time as president.  

So, the Supreme Court seems to get the message, as they almost always do, being this kind of non-democratic body in a democratic system. They realize, "Oh, we are losing here." But the independence of the court is preserved in the end, which is the key.  

Matthew Brogdon:  

[00:20:31 - 00:21:27]  

I do like the fact that you point out that FDR does win in the long run, because by the time he gets elected for a fourth term, he dies. Harry Truman, his vice president, becomes president, sees through the end of World War II, and then leads right up to the cusp of the 1950s. And by the time Truman leaves office, I don't know if they had—Truman and Roosevelt had appointed all nine members of the court. It was very close to it.  

There were only one or two members of the court left who had been appointed prior to FDR's presidency. So, if you hang on to the presidency long enough, you do win the fight. But that means winning elections—not just one election. You've got to keep winning elections. One of the values of separation of powers and checks and balances is that it ensures that just winning one election usually isn't sufficient. If you really want to bring about some massive sea change in American politics, you've normally got to keep winning.  

Savannah Eccles Johnston:  

[00:21:27 - 00:21:28]  

Yes.  

Matthew Brogdon:  

[00:21:28 - 00:21:51]  

Consistently. And that's not a bad thing. It's frustrating whenever you see things you really want to accomplish. I'm sure Republicans are going to suffer a lot of frustration the next couple of years over things that they were just sure having unified government would accomplish—like all of their predecessors, including FDR, who came into office thinking, "I've got a majority. I can do what I want."  

Savannah Eccles Johnston:  

[00:21:51 - 00:22:30]  

Oh, this is such a great point. Our system really only allows massive change if it is the long-term opinion of the American people—not a one-time vote, but it has to be the cold, calculated, long-term public opinion for it to translate into massive, sweeping change. That's a great point.  

Let's move to Nixon as our second big example of checks and balances really working. And again, here, it's both the Supreme Court and members of his own party in Congress looking the president in the eye and saying, "Back up there, buddy." So, give us the groundwork for Nixon here, all the way up to U.S. v. Nixon.  

Matthew Brogdon:  

[00:22:30 - 00:23:52]  

Well, Nixon had helped members of his administration cover up a pretty serious crime. Right? Some black ops types and former intelligence officials had been hired by Nixon's campaign committee—by CREEP, the Committee to Re-elect the President, which is the most horrible acronym ever.  

They had broken into Democratic headquarters ahead of the election to try to gin up some opposition research, get some dirt on the Democratic Party, and gain insight into their strategy. They got caught and were being prosecuted. Nixon evidently didn't know about it when it happened, but certainly came to know about it afterward. He was apprised of this by his chief of staff and other senior members of his administration, who said, "Actually, that might have been us."  

And Nixon doesn't do what a chief executive is supposed to do, which is fire everybody on the spot. Instead, he covers it up. And he sees this as an act of loyalty. Weirdly, he construes this as virtue. He's going to be loyal to the people who work for him. They're working on his behalf. So, he tries to cover it up. And then he lies in public, repeatedly.  

Because there's no direct evidence of his involvement, the denials all seem to work for a while—until it comes to light, as I think we mentioned in season one at some point.  

Savannah Eccles Johnston:  

[00:23:52 - 00:23:53]  

We did, yeah.  

Matthew Brogdon:  

[00:23:53 - 00:24:07]  

He recorded everything that happened in the Oval Office, and of course, he'd had conversations about this. So, when that became public, it was no longer possible to deny he had no knowledge of it. And his own party winds up holding him accountable.  

Savannah Eccles Johnston:  

[00:24:07 - 00:25:37]  

Right. So, first, the Supreme Court steps in. The prosecutor is saying, "Hand over the tapes." Nixon hands some over, but there's an 18.5-minute gap. The prosecutor says, "We'd like that too." Nixon says, "Oh, executive privilege. This is national security-related. Not going to hand it over."  

And the court, in U.S. v. Nixon, says, "Eh, sorry. That is only for conversations that are in the public interest but are very sensitive. You saving yourself does not count. Hand over the tapes."  

Then it goes to Republicans in the Senate, in particular, who have to decide whether or not to convict a sitting president of their own party. At this point, no senator has ever voted to convict a president of their own party. This is a big ask. All the evidence is against him. He's lost in the courts. It's all out in the open now.  

And it's Senator Barry Goldwater—who had returned to the Senate after a failed presidential campaign—who goes to Nixon and says, "We will vote against you. This isn't a party loyalty moment. This is the Senate acting against you. You will be the first person convicted and removed from office."  

It's that meeting with Barry Goldwater that ultimately convinces Nixon to resign. He hadn't decided before that. So, you have two institutions working together. And again, I think it matters that it's someone of the president's own party working to push back against a rather imperial president at that moment.  

Matthew Brogdon:  

[00:25:37-00:25:40]  

Yeah, Nixon resigns the next day, right?  

Savannah Eccles Johnston:  

[00:25:40-00:25:42]  

Yeah, so he got the message. 

Matthew Brogdon:  

[00:25:42-00:25:47]  

Which we said that we've never impeached a president, but kind of like the threat of a veto—  

Savannah Eccles Johnston:  

[00:25:47-00:25:45]  

Yes.  

Matthew Brogdon:  

[00:25:48-00:26:05]  

—Can constrain Congress. The threat of impeachment is a real thing. And if it's plausible, presidents will resign. They'll leave office or change their conduct. So, it is a powerful weapon, even though we tend to think [00:26:00] it's ineffective. Now, whether it works against the Supreme Court is a totally different question, but—  

Savannah Eccles Johnston:  

[00:26:05-00:26:06]  

And we'll have a whole episode on that.  

Matthew Brogdon:  

[00:26:06-00:26:06]  

We will.  

Savannah Eccles Johnston:  

[00:26:06-00:26:07]  

So, we'll talk about that—impeaching judges.  

Savannah Eccles Johnston:  

[00:26:08-00:26:25]  

Right. So, first, checks and balances seem to be facing some serious challenges today. I think many people are concerned that they are less effective than they used to be, for whatever reason, whether that's right or wrong. So, what are some of the challenges posed to the checks and balances system right now?  

Matthew Brogdon:  

[00:26:25-00:27:19]  

Well, you've pointed out in conversations we've had about this that partisanship, political parties are actually a little bit of a problem for checks and balances because checks and balances relies on the institutions feeling a little bit of institutional pride. Like, you know, Congress is supposed to be looking at the other institutions saying, "No, this is our responsibility, get out of our house, you know, get off my lawn." And, um, partisanship kind of undermines that because it creates a kind of alliance across the institutions between people of the same party so that they're willing to ignore some of those boundaries.  

So, Congress might be perfectly willing to tolerate presidential encroachment on Congress's powers as long as it's a president of their party doing things they like. And so, in the long term, that's bad for the institution. You're losing institutional authority in the system, but your party wins in the short run. And so, partisanship can be a problem.  

Savannah Eccles Johnston:  

[00:27:19-00:27:38]  

This plays right into the weakening of Congress. It seems that partisanship has actually made Congress weaker because it ties it to a president, whether that president is the same party as the majority party. And so, it weakens the institutional thinking of Congress and therefore the very institution of Congress. So, these two things work together to disrupt the checks and balances system.  

Matthew Brogdon:  

[00:27:38-00:28:08]  

So, is that just—I'll be curious as we go through the season—one question that I'd like to sort of explore is, is that because—is Congress's sort of weakness, its lack of institutional pride? Is that sort of a permanent problem? Or is that just stemming from the fact that Congress keeps changing hands? You have such narrow majorities. If Republicans, for example, had a much wider margin, would that produce a situation where they were more willing to challenge the presidency and stick up for themselves or less?  

Savannah Eccles Johnston:  

[00:28:08-00:28:11]  

I'm not convinced that it would produce a Congress more willing.  

Matthew Brogdon:  

[00:28:11-00:28:12]  

I'm actually not sure.  

Savannah Eccles Johnston:  

[00:28:12-00:28:45]  

I think it depends on just how presidential your system is, how governed your party is by a certain person in the executive office. So, that's—well, that'll be a very good conversation to have, but I think maybe now we should turn back to people listening who might be wondering, "Okay, checks and balances is great. What can we do? What is our role? I'm not in Congress. I can't do anything for checks and balances." But I don't think that's correct. I think voters are actually the linchpin to check and balances. So, what can our listeners do to keep this system healthy?  

Matthew Brogdon:  

[00:28:45-00:30:05]  

Well, like anything, like any institution, any constitutional principle, the attachment of the people at large to it really determines how durable it is. I mean, if there was a provision of the Bill of Rights, even, that people cease to be attached to, they thought, "You know, it's not actually that important, we'd like to really see that, you know, sort of tucked away in the closet somewhere," it probably won't have nearly so much meaning or effect or force. So, people do need—you do need a public attachment to things for them to be lasting and durable. And I'm afraid that the way that we teach American government to people—you know, civic education itself might be a little bit guilty here because we tend to instill a lot of frustration in students about this without instilling a lot of appreciation for it. You know, if you just sort of give them the gory details, the sausage-making process, and "look how complicated this is," of course, they walk away sort of disenchanted by it. So, I think we could do a better job as teachers of the American Constitutional Order, explaining the rationale for these things and giving people an appreciation for them. And some of that, we can fall prey to our own frustrations about it, you know? It's more fun to tell the stories that end in disaster in some ways because it's just, you know, those are more entertaining.  

Savannah Eccles Johnston:  

[00:30:05-00:31:12]  

No, this is a good point. I think if there's one thing voters can—or, uh, citizens can do—it's the power of the vote. Ultimately, members of Congress want to stay in office. And you can reward them for institutional thinking—for protecting the power of their institution from executive or judicial overreach—and not for acting as partisans. You reward them with re-election, and you punish them by not re-electing them, and they will respond to you like Pavlov's dog, right? They'll respond to you. So, the vote still really matters. Ultimately, presidents or Congress or the judiciary can get away with anything the American people are willing to let them get away with. So, it's our fault in the end, I think. And also our chance to make things healthier. So, we are going to spend an entire season walking through each of these checks. We're going to do everything from—we talked about this—Supreme Court impeachments to judicial review, and we hope you will, uh, join us and learn about this remarkable checks and balances system, this heart of the American constitutional system.  

Matthew Brogdon:  

[00:31:12-00:31:15]  

I'm looking forward to it.