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Let me turn next to the next part of this segment.

Which deals with the structural provisions of the constitution.

How the government is set up and structured.

When the framers met here in Philadelphia in 1787,

they were primarily concerned with this part of constitutional ordering.

Bear in mind, they had just split away from a government which they thought was

terribly structured, giving far too much power to the whims of a given monarch.

And in setting up the new American constitution,

in light of the failures of the Articles of Confederation, it was important for

the framers to get it right and give the right kinds of power and

the right amounts of power to different parts of government.

Here we turn once again to the views of James Madison, and

the most important of the framers who was a student of governmental structure and

proper allocation of authority, and thought quite a great deal and

wrote a great deal about the best way to structure government.

And he acknowledged a basic challenge which I've alluded to before.

First the framers sought to give the government enough power to control

the governed, but then structure it in such a way as to use Madison's phrase,

oblige it to control itself.

For Madison the solution to this dilemma,

sought in, actually, lay in the basic ambition of the men and, today,

men and women who occupy spots in our government.

Recognizing, then, as now, that the inherent ambition of people,

who would seek places in government.

Madison and the other framers sought to build a government where this ambition was

a built in feature.

And one that would perhaps solve the problem of too much ambition in one place.

So as Madison said, ambition must be made to counteract ambition.

The interest of man must be connected withe the constitutional rights of

the place.

For Madison this meant that the best solution for

structuring government was dividing power and creating incentives for

one branch of government to counteract the other.

We call this separation of powers or checks and balances.

And the framers cared so

much about this that they didn't just do it on one dimension.

But they did it on two dimensions.

And here what we mean is when we talk about separation of powers in

the federal government we often use the phrase horizontal separation of powers.

Splitting the government into three branches, executive, legislative and

judicial, and giving each one of them certain powers and

more importantly propose this theory of behavior that Madison advances giving each

branch the incentives to counteract and

be somewhat jealous of the other branch's power.

But, the framers didn't just divide constitutional,

our constitutional order that way, they also did it on, what we would call,

a vertical dimension, namely, dividing power between the National Government and

the various state governments.

This is a principle we call federalism and it is very important even today,

as certain things are certain important policy choices

are situated with the states, even as many important policy objectives have

come to be viewed as national government prerogatives.

And it's on these two dimensions,

the horizontal separation of powers within the federal government and

the vertical separation of powers between the states and the federal government.

Where our greatest debates over governmental structure continue to

reverberate in the Supreme Court and in the broader public policy debates.

James Madison's fundamental insight that power was

more safely reposed in government.

When it was broken up into smaller chunks and given to different branches or

even different governments as between the national and

the state government is one that remains important today even as we

debate the precise boundaries of those divisions.

For the modern Supreme Court it has been important particularly in

the last few decades.

Justice Kennedy in a representative statement in a case called U.S.

Term Limits versus Thornton called Federalism Our Nations's Own Discovery.

And he talked about the framers splitting the atom of sovereignty as a genius idea.

Giving our citizens two political capacities, one state and

one federal, each protected from incursion by the other.

Now Justice Kennedy's statement may be a somewhat idealized version of

our federal order.

In reality, many, perhaps most public policy issues are,

are shared between the state and federal governments, who cooperate or conflict or

wrangle over the proper sphere of authority.

But still, for many citizens and many judges, and many policy makers.

This question of where we allocate authority in our constitutional system

remains crucially important and

as hotly debated today as it was over 200 years ago in Philadelphia.

Now the way that the Supreme Court and others have operationalized these

broad general principles about sep, separation of powers.

Is through the development of specific doctrines in particular cases.

Recall what I said earlier that the basic framework parts of

the constitution don't come with definition clauses or users guides.

It has been the task of subsequent generations over the past 200 years

to give content to these broad general principles, like executive power,

legislative power, judicial power, or the broad principles that there ought to be

some separation between the states and the national government.

And the way the Supreme Court has done so is, over the past 200 years,

to very gradually, very incrementally craft different

doctrines that go to both separation of powers on the horizontal level and

the vertical level, the so called federalism doctrines.

It's useful to divided this general concept of separation of

powers into three basic areas of doctrine and analysis.

The first of two of which deal with relationships between the state and

the federal government.

The third deals with the,

what we call the horizontal relationship across the federal government.

So first the Supreme Court has applied the Constitution over the past two centuries

in ways to control the states and limit state behavior, or even misbehavior.

Second, and increasingly in recent decades, the Supreme Court has applied

Federalism doctrines to restrain the Federal Government as against the States,

to say that there are some spheres where the Federal Government can't legislate,

no matter how powerful it may claim to be.

And finally, there's another set of doctrines that

are continuously under development and debate that attempt to

create limits between the different branches of the federal government.

And occasionally the Supreme Court will address cases that asks the question,

is the president exercising too much power.

Has Congress overstepped its bound in, in this case?

I'll speak to all of these doctrines in the next few minutes.

But I want to highlight yet another debate in this area, which is the question of

who should decide these major separation of powers questions.

To be sure, the Supreme Court has asserted that it has the right to

decide these fundamental questions of governmental structure just as it

does other questions of law and other questions of individual rights protection.

But there is a long scholarly tradition rooted in constitutional history

that suggest that these basic structural choices about the constitution ought to

be what we call non justiciable.

In other words, decided outside the courts by the major political

branches of American government.

After all, remember James Madison's phrase ambition must be

made to counteract ambition.

For Madison at least, the government is already properly structured, so

that if the President overreaches, Congress ought to step in and

reign in Presidential power.

Conversely, if Congress is exceeding its authority,

perhaps the President will refuse to enforce that statute.

And there's a real question about whether the Supreme Court needs to

referee all these disputes.

On the other hand, developments that Madison and

his colleagues never could have foreseen have complicated the separations of

powers mix on all of these dimensions, and perhaps given rise for

stronger arguments for judicial supervision.

For instance, the framers for all of their wisdom,

never anticipated modern political parties and the modern two party state.

And the implications that the two, two party system would have for

separation of powers.

When the same party controls both Congress and the White House the assumption that

ambition will counteract ambition, and Congress will reign in the President,

falls apart in a world of strong party discipline.

Likewise, the framers never foresaw the dramatic rise and the size and

scope of the federal Executive branch that has taken place over the past century.

In the early days of the Republic,

the federal government had only a few thousand, non-military employees.

Today the federal government has over a million such employees.

Growth of the federal government over that phase has, some would argue

fundamentally tipped the power of the presidency relative to the other branches.

These are questions that are still debated, and

that I'll return to in a few minutes.

Now let me go somewhat more systematically through these different areas of doctrine.

The first area where federalism doctrines have been applied by the supreme court and

are b, baked into the constitution deal with controlling state behavior or

even state misbehavior.

Indeed, were we to travel back in time to 1787 and

asked the framers what they worried most about.

They would not have worried about an overreaching federal government.

After all, recall how weak the federal government was under the Articles of

the Confederation.

What they worried about, and the reason they came back to Philadelphia in 1789,

was that states were behaving badly.

States were printing their own money to let their own debtors off the hook.

They were couldn't agree on state boundaries.

They couldn't agree on foreign policy, or

policy toward the Native American trive, tribes.

Each state was going in its own direction.

States were enacting internal tariffs and

trade barriers, of the sort that today we see between nation states.

But this used to happen between Pennsylvania and New Jersey.

The Framers regarded this as no way to run a proper country.

And so one of the first things the constitution did was prohibit and

provide doctrinal grounds for

courts to prohibit states from engaging in this kind of individualistic behavior.

A later justice, an important justice from mid 20th

century Justice Robert Jackson said that these clauses taken together were to

declare something he called a Federal Free Trade Zone.

So if you imagine efforts such as our undergoing these days in Europe to create

a, to, to trans, transform what used to be individual markets into a national free

trade zone, that was a major impulse of the early days of the Constitution, and

largely successfully enforced by the Supreme Court over the last two centuries.

Such that these debates occur, but occur much more,

much less frequently than they would have in the early days of the Republic.

Modern debates over the scope of federal government authority often grapple with

the fundamental tension and inconsistency that's built into the Constitution.

On the one hand

the baseline rule in the Constitution is that power resides with the states and

the people, and the national government only has those powers that the document.

And interpretations of the document affirmatively give to

the national government.

This is called the doctrine of enumerated powers.

And it is often invoked by people who say that the federal government is

over-reaching its authority, because it can't point to a certain enumerated power.

On the other hand, some of the enumerated powers themselves are extremely broad and

extremely vague.

The most important of these is the Commerce Clause which gives the national

government the authority to regulate commerce among the several states.

And today the Commerce Clause stands as the foundation of

much national government authority.

Now the meaning of this clause typically is not defined in the Constitution, and

has been contested heatedly over the past two centuries, indeed over the past few

decades, in the context of major statutory enactments like the Affordable Care Act.

It's possible to think about the Congress clause and the history of its development

in four main historical epochs, and I'll summarize these briefly here.

First, for much of the first hundred years of the constitution's life,

until about the 1870s or 1880s Commerce Clause cases were few and

far between, precisely because the National Government didn't do that much.

In a series of decisions, in this period, that might surprise modern observers.

The Supreme Court took a very narrow and

formalistic definition of the Commerce Clause, and, issued decisions saying

things like manufacturing in a major sugar plant was not commerce and

therefore that company was not subject to basic anti trust laws.

Or even more strikingly a factory that employed chird,

child workers was not engaged in commerce.

Therefore the National government had no basic,

no authority to issue basic child labor legislation.

This was a constitutional regime, which seems anachronistic to us, and

indeed it proved unsustainable, even in a much earlier date,

namely in the New Deal in the 1930s and the 1940s.

After the Supreme Court struck down some of President Franklin Roosevelt's most

popular and important recovery initiatives President Roosevelt

capitalizing on public dissatisfaction with a court that seemed to be

stuck in the past proposed what would have been a radical solution,

namely adding more justices to the Supreme Court in order to reverse those rulings.

Perhaps sensing the public outcry against its decisions and

wanting to avoid the constitutionally problematic strong arming from

President Roosevelt, the Supreme Court, by the middle of

the New Deal reversed its prior narrow interpretation of the commerce clause and

adopted something much more familiar to the doctrine we have today from the court.

Namely, that commerce is defined pretty broadly to include any activity that

affects the national economy, however small, so

long as if taken in its totality in an aggregate sense it has an economic impact.

So this is the law today and indeed the law from,

from about The New Deal Era, up until the time I was in law school in the mid 1990s.

Was that congress could do pretty much what ever it wanted under

the commerce close.

There wasn't any real enforcement of federalism limitations in this area.

We are now in a different era, with a more aggressive, robust Supreme Court, where at

least five justices on the current Court maintain that there are limits to

national government power and that the Court aught to enforce those limits.

And we saw such a case just two years ago with the major

Affordable Care Act case of 2012, where a slim majority of

the Court felt that a key part of that statute, the individual mandate,

was beyond the Federal Government's authority on commerce clause grounds.

Because it sought to legislate in the Court's view.

People who weren't doing anything but sitting around.

And indeed the entire validity of the Affordable Care Act was

only upheld on a different ground the so-called taxing power.

Because the the burden or the penalty that falls on people who

didn't pay the individual mandate is operational as through their tax returns.

So we're in an era now where federal government authority is vast but

the Supreme Court assertively maintains its prerogative to enforce that.

There are many scholars and many in the policy world who feel that these kind of

federalism restrictions to control federal government overreaching are important but

ought not be enforced by the Supreme Court.

Indeed keep in mind the structural provisions that are built

into the so-called political branches, that are built into Congress itself.

and, and the argument goes includes plenty of protections for the states.

Each state gets two votes in the Senate.

No matter how big or how small.

So that a state like Wyoming has as much representation on a state-by-state basis

as a state like California.

Despite vast discrepancies in population.

For many observers, this suggests that state interests are fully

protected in the actual voting procedures and political process in Congress, and

that the Supreme Court ought not get involved, in policing this boundary.

It ought to stick to protecting individual rights and standing up for

the rights of entities and individuals who don't have a voice in

the political process, whereas states do have such a voice.

But clearly, as a statement of current constitutional law,

the Supreme Court has come out strongly in the other direction,

saying that it can and will enforce these federalism restrictions.

I'll now speak about a different element of separation of powers.

Now, in here we're talking about the horizontal separation of powers between

the different branches of the national government.

This is the area where both today and

historically Supreme Court doctrine has been least helpful.

I think precisely because the fundamental definitions of

these different branches are so unspecified.

Legislative power,

executive power, judicial power are undefined in the Constitution.

And the precise contours and, and boundaries of

those concepts have become evermore muddled as the government has grown, and

changed, and become more complicated.

For instance, take an agency like the Food and

Drug Agency, which regulates the safety of food and therapeutic products,.

The FDA is an executive branch agency.

We know it is within the executive branch but if we look at its functions it does

some things that look like executive enforcing of the laws.

It had the authority to inspect and enforce rules, say,

against pharmaceutical manufacturers.

But some of what it does looks a lot more like a legislature.

Like many agencies, the FDA has authority to write rules which

are binding and generally applicable and look a lot like statutes.

We call them regulations and thus place them in the executive branch, but

functionally, that behavior looks much more legislative.

Other agencies have the ability to adjudicate actual cases and disputes.

For instance the Social Security Administration has its own

judges who hear debates, or hear disputes when somebody claims to be

denied the proper amount of benefits exercising very

much a judicial function again despite technically being in the executive branch.

For this reason, the growth of government in ways that

the framers never could have intended have put pressure on these basic dep,

definitions inherent in the horizontal separation of powers and confounded easy

judicial techniques for drawing bright lines between such branches.

Today in this area courts are struggling with issues like national security

surveillance by the executive branch the power of the President to

wage war in foreign countries despite not formally declaring war and

the growth of congressional behavior and congressional oversight

activities which raise questions about congressional overreaching.

In these areas, there's a real question of how much the Supreme Court, or

any judges can do, to meaningfully police these boundaries.

As I've said, the fundamental definitions in the Constitution are so vague and

unspecified, between executive, legislative, and judicial power.

That, articulating meaningful doctrinal standards to channel and

cabin these different types of power have proven over the past two

centuries to be largely unworkable.

Moreover many of these decisions, such as whether or

not to send troops to a foreign country are probably the worse kind of

decisions to vest in a group of unelected judges who take a long time to hear cases.

And perhaps ought to be worked out more within the political process.

Certainly James Madison and the other framers envisioned that Congress and

the President would be their own best check on each other.

That Congress would check the President when he or

she overreaches, and that the President would jack or refuse to enforce or

would veto congressional laws that represent where we are reaching.

In here I will return to though a problem that the framers never foresaw but

that is essential part of our political community today which is the rise of

disciplined fairly powerful political parties.

Although, the framers envisioned politics.

They didn't in, view, vision political parties.

And, the notion of a strong disciplined party controlling both Congress and

the White House, undermines many of the structural protections that Madison and

the other framers thought would work to control over-reaching.

Simply put, when the President and

Congress are of the same party who will rein in

an overreaching President if the President indeed is the leader of his, his party?

And we've seen, seen examples.

Whatever political party or persuasion one is, you can think of examples when

Republican presidents have seemed to exert dramatic authority unchecked by Congress.

And you can think of recent examples of a Democratic presidents have seem to

exert unusually robust authority largely unchecked by Congress.

This is something the framers never foresaw.

And it's a fundamental feature of our political process which puts pressure.

And perhaps stretches to the breaking point.

Some of the basic allocations of authority in in the national government.

These are problems for which the court probably doesn' have a solution and

it's up to the rest of our constitutional culture and

other institutions: the public, the president and congress.

Perhaps working together going forward to better structure and allocate power.

This is not an area where an easy doctrinal solution exists.

So to sum up this entire separation of powers discussion, I

think we see two very different problems, or two very different phenomenon.

In the, in the Federalism context the debate between state and

federal authority and in the horizontal separation of powers,

context arrayed across the federal government.

When it comes to judicial control of national government authority vis-a-vis

the states, the current Supreme Court has been very assertive, very robust and

articulated very clear rules.

In ways that many think have gone too far in asserting judicial protection.

On the other hand, when it comes to presidential authority and

overreaching many feel that the court has not done enough to articulate clear

meaningful standards to cabin executive power in the 21st century, as it

grows in ways that the framers never would have imagined over two centuries ago.

So these are the two competing challenges in this area, that the court.

And the rest of our constitutional culture we'll need to address going forward.

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Constitutional Law: Part 2

An Introduction to American Law

Meet the Instructors