Today's Supreme Court and the Separation of Powers, with Suffolk University Law Professor Renee Landers

The act of governing is an exercise of power. Part of the genius of the United States Constitution is that it does not place all the power in a single ruler, but distributes it across three branches – the legislative, which is Congress, the executive, which is the President and federal departments and agencies, and the judicial, which is the federal courts. This is what we call the separation of powers, a fundamental principle of American constitutionalism. And when we talk about checks and balances, we often are talking about how each branch, when necessary, exercises its own power to limit the power of the other two. 

The last few years in American politics have given us an advanced course in these basic principles. We’ve seen the House of Representatives exert its impeachment power over the President, only to be stymied by the Senate’s unwillingness to convict. We’ve seen Presidents attempt to circumvent the power of Congress by issuing executive orders to accomplish what Congress was unwilling to do. And we’ve seen the courts exert their power over those Presidents by striking down executive orders that they believed exceeded the Presidents’ authority. 

Ultimately, the United States Supreme Court is entrusted with the power to determine whether the legislative or executive branches and even the lower federal courts have exceeded the bounds of their Constitutional powers. In its last term, the Court issued several decisions that have arguably resulted in significant shifts in the balance of power among the three branches. A number of those decisions concern the allocation of power between administrative agencies on the one hand and the federal courts on the other. Another decision which is still making major headlines was the court’s decision in Trump v. United States. There, the Court, for the first time in American history, immunized a former President from criminal prosecution for official acts the former President engaged in during his Presidency.

Last year, Suffolk University Law Professor Renee Landers joined me as my guest on Higher Callings to unpack some of the major decisions from the Court’s 2022 Term. I’m pleased and honored to have Professor Landers back this year to discuss some of these cases from the Court’s most recent term, their implications for the separation of powers, and what they may portend as we enter a new era of single-party control over the federal government. 

If you have enjoyed the Higher Callings podcast, you might also enjoy Don's Substack Newsletter, Reflections of a Boston Lawyer, which you can find here: https://donaldfrederico.substack.com/

Chapters

• 0:00 Introduction: The Court's Decisions and the Separation of Powers
• 2:45 Opening Dialogue with Professor Landers
• 5:25 Power to the Courts Part I: The End of Chevron Deference
• 21:09 Power to the Courts Part II: Open Season on Challenges to Regulations
• 26:10 Power to the Courts Part III: Moving Agency Enforcement Actions to the Courts
• 30:53 Power to the President: The Presidential Immunity Decision
• 39:06 The Separation of Powers In a Period of Single-Party Control
• 47:03 The Lower Federal Courts as a Check on Executive Overreach
• 51:15 The Importance of Speaking Out in Support of the Rule of Law