Ep. 60 How Separation of Powers Shaped America

The separation of powers is one of the defining principles of American government and a key safeguard of individual liberty. Born out of the Constitutional Convention of 1787, the U.S. Constitution established three branches of government, each with distinct responsibilities and the power to check the others.

In this episode, Dean William Koch of the Nashville School of Law and Judge Usman from the Tennessee Court of Appeals sit down for a thoughtful discussion exploring the founders' vision for the separation of powers, the meaning and purpose of checks and balances, and how the judicial branch has evolved over the past 250 years. Together, they examine why this constitutional framework remains essential to preserving the rule of law and maintaining the balance of power in a modern democracy.

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00;00;06;20 - 00;00;45;20
Host
Welcome to Tennessee Court Talk. As America celebrates its 250th birthday, we're exploring the enduring principles of the United States Constitution and the role of the judiciary in our constitutional system. In this episode, we focus on the separation of powers and how courts help maintain the balance among the three branches of government. I'm your host, Nick Morgan. Joining me are Dean William Koch, President and Dean of the National School of Law and a former Justice of the Tennessee Supreme Court, and Jeffrey Usman of the Tennessee Court of Appeals, and also a former constitutional law professor at Belmont University College of Law.

00;00;45;22 - 00;01;00;15
Host
Together, we'll discuss how the judiciary has helped uphold the rule of law and preserve our constitutional system for America's 250 year history. Welcome to Tennessee Court Talk.

00;01;00;18 - 00;01;05;06
Host
Why did the framers of the Constitution believe separating government powers was so important?

00;01;05;09 - 00;01;05;23
Host
Judge Usman?

00;01;05;29 - 00;01;35;20
Judge Usman
I think the real cornerstone of American constitutionalism is separation of powers. And the time period between the 1760s and the adoption of the United States Constitution is it's really one of the most dynamic in the history of constitutionalism. And the framers appreciated that to have any type of government in which you don't develop tyranny, you don't develop control by by one individual or one class within society.

00;01;35;22 - 00;01;47;09
Judge Usman
It's absolutely essential to divide power. Separation of powers really is the cornerstone of any form of of representative government. That's not going to be tyrannical in nature.

00;01;47;11 - 00;01;47;26
Host
Dean Koch.

00;01;48;03 - 00;02;27;14
Dean Koch
Well, America didn't invent separation of powers. It was a concept that had been developed in Europe and Great Britain. By the time that the colonists arrived in the New World. As Judge Usman said, the one of the primary purpose was to diffuse power, to protect the citizens from the abuses of concentrated power. But the other purpose for the separation of powers, especially when it was put in written constitutions, was to protect the branches of government from each other by defining areas of their unique responsibility.

00;02;27;16 - 00;02;49;22
Dean Koch
Because, as we know, in political terms, nature abhors a vacuum. So if there's a vacuum somewhere, a branch of government is going to jump in and separation of powers is designed to create some, not necessarily walls, but at least, dividing lines between the branches of government.

00;02;49;24 - 00;02;56;04
Host
So the federal Constitution never plainly uses the phrase separation of powers. How is the principle built into the document itself?

00;02;56;05 - 00;03;27;27
Dean Koch
It doesn't mention it, but it has separate articles in the Constitution dealing with each branch of government. And that separation, in the written document, de facto creates a separation in function. So, it certainly the literature was at the time, mentioned and discussed the concept of separation of powers, but the framers didn't see any need to use that term.

00;03;27;29 - 00;04;03;07
Judge Usman
Part of I think the Constitution also gets the separation of powers is by allocating particular powers to particular branches. And so the framers, as are sitting in Philadelphia working through a constitutional design, they're thinking about what authority belongs to different branches, what belongs to the judiciary, what belongs to the legislature, what belongs to the executive and the Constitution lays out with and it's not specific in all details, but it lays out some very clear guidance in terms of of what the core powers are of each of those branches of government.

00;04;03;07 - 00;04;35;15
Judge Usman
And, and during that, that convention in Philadelphia, that gathering in Philadelphia where they're, they're debating and they're discussing, they're working through these issues in terms of what the dividing lines are between the different branches of government. There was at one point, for example, I, and I proposal for the judiciary and the executive being much more combined. Where the judiciary was going to have a review authority over whether legislation was a good idea or a bad idea as part of of whether it should be, essentially vetoed.

00;04;35;18 - 00;04;51;17
Judge Usman
And that was removed. Part of the decision there is that that wasn't an appropriate role for the judiciary. The judiciary is not passing on whether legislation is a good idea or a bad idea. As a matter of policy. It has a more limited, role. And that that's an important part of the debate that was occurring.

00;04;51;17 - 00;04;54;23
Judge Usman
And a lot of those specifics found their way into the US Constitution.

00;04;54;23 - 00;05;28;15
Dean Koch
If there's anything unique about America's separation of powers, it is that our Constitution was the first to specifically treat the judiciary as a separate branch of government and other documents in Europe and in Great Britain, there was an assumption of what the judiciary's job was, but it was not written down. So our framers, at the convention, finally decided that they were going to have a separate section of the Constitution addressing the judiciary.

00;05;28;22 - 00;05;52;18
Judge Usman
And it can in this vein, I think one thing that's interesting is that Dean Koch mentioned separation of powers. The concept wasn't wasn't born in the United States. Right. And it traces earlier been written about earlier. The framers were they already had that idea of separation of powers. But when you look to to Europe earlier with regard to separation powers, much of the division is between, different class within society, different groups.

00;05;52;18 - 00;06;24;09
Judge Usman
So we're dividing aristocracy, from people. If people are commoners from the crown, the American constitutionalism and its core sovereignty rests with the people. All power flows out of the people. That's a cornerstone of American constitutionalism that didn't exist within Europe, because the ultimate sovereign in Europe might be the king. And so when you're talking about separation of powers, it's a division of separation of powers within government where everything goes back and originates to the people.

00;06;24;09 - 00;06;30;24
Judge Usman
And that's a that's taking that concept of separation powers in a very different direction then, than Europeans had before.

00;06;30;27 - 00;06;38;06
Host
You mentioned the limited power of the judiciary. Can you expand on that a little bit? Like what role does the judiciary play in maintaining the checks and balances?

00;06;38;08 - 00;06;57;25
Judge Usman
Part of it is application of the law in any, any, any given case. Right. And they cornerstone the American government, a government of law, not a not a man, not a not a people. And any individual application in terms of where parties argue in the law works this way or law works that way, oftentimes ends up in court.

00;06;58;00 - 00;07;25;16
Judge Usman
De Tocqueville said a political speech. The United States can end up in court. But a lot of what you're looking at is application of law in a given case. And so what is the law? Here is a lot of times, the question that the courts answering in terms of, of application, in terms of a barrier, the, the role of court is to essentially ensure that the Constitution does not violate in any case, that's before, the court.

00;07;25;19 - 00;07;28;19
Host
Dean Koch, could in any case narrow that power?

00;07;28;25 - 00;08;13;28
Dean Koch
I would say it narrowed it. The fact of the matter is that the concept of separation of powers, even as it's embodied in the United States Constitution, was not really complete until John Marshall wrote Marbury versus Madison. And in in that decision, and really one brilliant swoop, the Chief Justice and his colleagues spelled out that the judiciary's role was unique and could not be invaded by another branch of government, and that the court had the sole authority, as, Justice Marshall said, to say what the law is.

00;08;14;00 - 00;08;31;01
Dean Koch
There was a big debate back then. Well, the legislature could say what the law is. The executive branch could say what the law is. And, Madison, Marshall, close that door by saying it is our chief primary prerogative to say what the law is.

00;08;31;01 - 00;08;50;25
Judge Usman
There's also restraint in the opinion in terms of one of the things Marshall also says is that there are things that belong to the executive, that don't belong to the judiciary, that are political determinations for the president, determinations for the Secretary of State acting pursuant to the president's guidance, that are that are not the province of the court.

00;08;50;25 - 00;09;05;14
Judge Usman
And so, Marshall, while he's he's stating this important role for the court in terms of saying what the law is in terms of framing judicial review, he's also carving out limitations in terms of things that belong to the executive and not the judiciary.

00;09;05;16 - 00;09;15;05
Dean Koch
And that was a pragmatic decision on the court's part, because he really did not want President Jefferson to be coming after them any more than he was going to already.

00;09;15;07 - 00;09;40;20
Judge Usman
It it's it's an extraordinary moment in constitutional history with with Marbury v Madison in terms of, the court is stating a very boldly, in terms of the the claim for judicial review. But at that time, there's there's nothing really that Jefferson can can do because the decision ultimately turns on, we can't make you do this because the law as passed by Congress is unconstitutional.

00;09;40;20 - 00;09;44;26
Judge Usman
So, it's an interesting sort of moment in U.S. constitutional history.

00;09;45;00 - 00;09;51;20
Host
What other U.S. Supreme Court cases have shaped the modern understanding of separation of powers through decisions?

00;09;51;22 - 00;10;17;06
Judge Usman
There there are many. I think one of the most important is probably, the steel seizure case. If we think about the the court, looking at a claim by a president of the United States that President Truman, takes action to a, seize steel mills during the Korean War. War is certainly a time period where presidential authority, can take on a more robust role, certainly in terms of claims of, presidential authority.

00;10;17;06 - 00;10;36;18
Judge Usman
And the United States Supreme Court is was pressed in the case to essentially allow President Truman to take this action. And the United States Supreme Court said it was unconstitutional. And that's a bold thing. During the midst of a hot shooting war on the Korean Peninsula, for the United States Supreme Court to say President Truman, you can't do that.

00;10;36;18 - 00;11;03;01
Judge Usman
And and Truman's looking at a circumstance where he's worried about running out of steel, during the middle of a US significant, war effort. But the court looked at and said, you're intruding upon the power of Congress here. Ultimately, much of the steel seizure case turns on the fact that what Truman is doing ultimately involves expenditure of funds, and that that's really a core power of Congress.

00;11;03;03 - 00;11;23;07
Judge Usman
So the court, in many respects, is protecting Congress from an overreaching executive. In that case, the the idea that the Truman can't just spend money that hasn't been authorized by the United States Congress when Congress ultimately has the power of the purse and sort of a cornerstone or foundation of separation of powers. Right. And Congress has the power of the purse.

00;11;23;07 - 00;11;43;00
Judge Usman
They have the money, they get to pass the laws. The president, the executive has a sword, executive enforces the law, and the court interprets the law. And I think in what we see in the steel seizure case, is the court taking very seriously that the purse belongs to Congress, and the president can't just freely spend money that hasn't been authorized by the United States Congress.

00;11;43;00 - 00;12;38;15
Dean Koch
There are also examples of of cases where the court has specifically declined an invitation to take on additional powers. I'm thinking of the Japanese internment cases where we had the, executive branch of government deciding that American citizens of Japanese descent should be rounded up and in turn, during the Second World War, for security reasons, there were three, lawsuits that the court heard, in in short order about that, those internment and, what the what the court said in that case was, yes, we have jurisdiction to hear this dispute, but, because this is a matter of national security, we are going to self-imposed limitations on what we'll do in circumstances like

00;12;38;15 - 00;13;08;17
Dean Koch
this. And we will, we will not second guess the executive branch in circumstances like this. So we will not, take a position that that what the the president had done was unconstitutional. Although we found later in some of the judge's writings and as the as the interments went on, that the court was moving to a point where they were going to invoke the 14th amendment, but never had to do it.

00;13;08;19 - 00;13;34;25
Judge Usman
I think in another case that's interesting to think at in in this vein is the INS v. Chadha case. Right. So in in Chahda, you have this interesting circumstance where you have two different aspects of separation of power that the courts wrestling with at least to one. That's the courts looking at that case is, is Congress following the Constitution in terms of how it's laying out the process for how laws get passed.

00;13;34;25 - 00;13;59;17
Judge Usman
Right. So what Congress has done in this case is it's created a structure where it gets to veto essentially an action of the executive. So you have immigration policy. Their Congress lays out broad rules for how immigration policy is supposed to work. And Congress essentially says, well, we want to retain the power to veto what the executive does in terms of how they carry out those broad laws we put forth.

00;13;59;19 - 00;14;22;14
Judge Usman
And the United States Supreme Court says, you can't do that. You can't do that because we have a clear process under the constitution of how laws are passed, and it doesn't involve Congress vetoing, executive actions. You pass the law of Congress, the executive enforces the law. You don't get to come back then and veto that action. One of the other pieces that I think is intriguing in that case is there's a separate opinion in Chadha.

00;14;22;16 - 00;14;42;25
Judge Usman
It doesn't get as much attention always. In which the there's noting that really this isn't the type of thing legislatures should do, which is this is an individual person. And whether this person should remain in the United States or not. Well, that should be determined in accordance with law. What's the rule? What's the statute? What's the what?

00;14;42;27 - 00;15;02;08
Judge Usman
It's the law out there. That's to be applied, not just Congress like this particular person. Do they dislike that particular person? That's the type of determination that should be made in a in a judicial proceeding. In terms of whether the executive has followed the law rather than Congress coming in and simply saying, well, we don't like Chadha.

00;15;02;08 - 00;15;05;10
Judge Usman
So he has to go.

00;15;05;12 - 00;15;13;14
Host
How does the judiciary remain autonomous while still being held accountable within our constitutional system? Both on the federal and state level.

00;15;13;14 - 00;15;38;22
Judge Usman
There are checks on the judiciary in terms of there's front end checks and there's tail end checks. Right? I mean, in terms of front end checks. And part of it is the the appointment and confirmation process sign. Presidents have to choose people who will be good judges. The Senate has to consider whether or not they will make good judges and make a determined of whether this person is, is appropriate for this, this position.

00;15;38;25 - 00;16;06;10
Judge Usman
I'll say going back to the the chairman, many changes over the years in terms of who gets appointed into judicial positions, including at the United States Supreme Court level. And what are the qualifications. But one of the things that has remained think consistent over the course of more than two centuries is you have incredibly, highly qualified individuals that represent sort of the, the best of the bar that have have largely ended up in these roles, well-respected, individuals.

00;16;06;10 - 00;16;26;26
Judge Usman
And I think that helps on the front end in terms of bringing in good people for these these positions on the tail end. There are checks in terms of and you ultimately have powers like impeachment and removal, that are available. You have control over jurisdiction. The Congress has in terms of how it can address, and overreaching, judiciary.

00;16;26;26 - 00;16;50;04
Judge Usman
And there's also internal constraints, that are important for the court in terms of what is the court not supposed to hear a term that we would use as justiciable here and let we say justiciable? What we mean is, is this the type of case that's appropriate for the court to hear constitutionally? Is this is this the type of action that courts hear or is it not?

00;16;50;10 - 00;16;55;10
Judge Usman
And so I think those function as internal constraints and external constraints.

00;16;55;12 - 00;17;01;19
Host
Dean Koch, I think of you being a former Tennessee Supreme Court Justice. I'm curious in your opinion on this. On the state level.

00;17;01;24 - 00;17;35;00
Dean Koch
You cannot consider separation of powers in a vacuum. You must consider it with the elaborate set of checks and balances that the Constitution has written in, to our our legal process. I mean, you, the idea of independence gives people the idea that the branches of government are hermetically sealed from each other, that there is no way to cross over into the other side.

00;17;35;03 - 00;17;40;26
Dean Koch
And of course, if that were the case, government would not work. It would be chaotic.

00;17;41;03 - 00;17;44;17
Host
So what are some of the places that you have crossover with the branches of government?

00;17;44;18 - 00;18;11;17
Dean Koch
Well, for example, I think it's the Mistretta case where the Supreme Court said that, there was nothing unconstitutional about assigning duties to judges that weren't necessarily judicial duties. You know, there are certain things that article three says judges can do, but there's also a desire to enable all three branches of government to work cooperatively when appropriate.

00;18;11;19 - 00;18;29;06
Dean Koch
And the court said, that's perfectly fine, but Congress cannot assign non-judicial duties to the court and require the court to undertake them as Judge Usman said those are the circumstances where the court would say, though those are not inherently judicial duties. We won't do it.

00;18;29;08 - 00;18;55;29
Judge Usman
In cases like Mistretta you see the Congress essentially trying to draw upon expertise of the court, right? So you're talking about sentencing there. And so judges know something about sentencing. And so in trying to to build, what should the sentencing guidelines look like in the federal system? There's a look to the judiciary in terms of providing advice now and in developing those those recommendations in terms of what the guidelines should, should look like.

00;18;56;02 - 00;19;06;25
Judge Usman
And that's that's not necessarily a core judicial function in terms of designing that kind of policy, but it's drawing upon the expertise that judges have in terms of shaping that policy.

00;19;06;27 - 00;19;11;11
Host
How far can Congress go in its ability to make decisions that influence the other two branches?

00;19;11;14 - 00;19;42;27
Dean Koch
The only limit on how far Congress can go is the Constitution. So there really are no textually prescribed limits on Congress's power. The way that that frontier is policed is on a case by case basis. And there have been, you know, that there have been circumstances, cases where the the Congress has said, we want you, to be to arbitrate, whether veterans should receive benefits.

00;19;43;00 - 00;20;08;18
Dean Koch
And the Supreme Court, when that case reached there, said that's not what judges do. That is not the core function of the judiciary. So, I think we have a circumstance in answer to your question, where both the executive branch and Congress are going to put their toe in the water and stretch the limit. And that has happened throughout our history.

00;20;08;20 - 00;20;35;12
Dean Koch
And the court has either acquiesced in that and said, yes, that expansion is consistent with the Constitution. They say, no, it's not. But the core judicial function, as judgment is said of deciding contested cases, is something that the court will, I think, always and has always jealously protected.

00;20;35;14 - 00;21;00;13
Judge Usman
There are limitations within the Constitution in terms of what Congress can do, in terms of specified limitations with regard to what Congress can do to the judiciary, I think those tend to be more limited. Also, I think limitations in the Constitution, in terms of specific areas that may be, let's say, an intense driver in terms of politics.

00;21;00;15 - 00;21;25;05
Judge Usman
So if someone decided, you know, we don't want, courts hearing challenges any more that are brought by persons of a particular race or sex, that would be a violation of the Constitution. And you can't, violate the Equal Protection Clause independently by stripping the court of its authority with regard to a particular area, without running afoul of certain constitutional limitations.

00;21;25;05 - 00;21;37;07
Judge Usman
So, you know, I'm not Congress would never pass such a statute. But if Congress was to pass a law saying that persons of a particular race can't appeal cases that would independently violate the Equal Protection Clause of the Constitution.

00;21;37;14 - 00;22;14;03
Dean Koch
And the court has also repeatedly pointed out that Congress or the executive cannot tell the court how to decide a particular case, but the the ultimate control that Congress has over the judiciary is impeachment. And if you look throughout history, there have been a surprising number of impeachments, many of them successful. A few have not. But the the I guess that's the nuclear option that Congress has.

00;22;14;05 - 00;22;29;10
Dean Koch
Where they'll file an article of impeachment against the judge. And that judge is then required to defend himself or herself in the House. And if these impeached in the House, they have, a trial in the Senate.

00;22;29;12 - 00;23;16;17
Judge Usman
There's also, beyond the text, a sort of constitutional culture of how things function, how things work, and impeachment and removal of judges, I think, is an extremely important area with regard to that. And so if we look back, one of the first transitions of power in this country, true transitions of power is going to occur, in the election of John Adams versus Thomas Jefferson, where the Federalist went from essentially having 3/5 of Congress and the presidency to having 2/5 of Congress and not the presidency, and the Federalist had put in place a significant number of judges who were not the who, the Democratic Republicans, Jeffersonian Democratic Republicans, were not particular fans of

00;23;16;19 - 00;23;44;29
Judge Usman
and had concerns about. And there was some movement to maybe remove Federalist judges. And we have impeachment being sought against a particularly prominent Federalist judge. And ultimately, Congress doesn't remove. And the thought in terms of non removal was that it had become political in some sense, in terms of trying to remove this, this Federalist judge and the Democratic Republicans, despite having the numbers to do it.

00;23;44;29 - 00;24;05;03
Judge Usman
They could have done it. They didn't. They didn't remove the judge and impeach. And removal has remained something that's not tied to politics, and it's not tied to I think that judge made a bad decision or I disagree with that decision. Nowhere in the text of the Constitution does it say that. It doesn't say you can't remove a judge.

00;24;05;03 - 00;24;25;17
Judge Usman
And high crimes and Misdemeanors, Gerald Ford famously said, that's essentially what Congress thinks that it means. You could you could by the text of the constant, you could turn every lever. You could remove every judge for political reasons. You disagree with the decision. But part of the constitutional culture of this country has been you don't remove judges because you think they made a bad decision.

00;24;25;17 - 00;24;38;01
Judge Usman
You don't remove them because that judge's worldview is not necessary in line with with yours when you're in a majority in the legislature. And that's an important aspect, I think, of preserving the role of the judiciary.

00;24;38;04 - 00;24;53;01
Host
So next question, someone to sort of get back to, to Tennessee. What do state Supreme Court such as the Tennessee Supreme Court, what powers do they have in interpreting state constitutions? Do they have more power than the federal Supreme Court would at the federal constitution?

00;24;53;05 - 00;25;26;26
Dean Koch
Well, I would say the process on the state level is not dissimilar to the federal decision making process. The, precedents are different. And again, our state's interpretation of the provisions in the state constitution control over the US supreme courts, attempts to either interpret the state constitution or the federal constitution, if we're focusing on the state constitution.

00;25;26;28 - 00;25;51;27
Dean Koch
The buck stops with the Tennessee Supreme Court. Now, in terms of of difference differences in approach, you know, that that ultimately is going to depend not just from court to court, but from justice to justice. And what I think the experience on multi Judge courts, and this would be the same on the intermediate appellate courts.

00;25;52;00 - 00;26;28;11
Dean Koch
The process and the approach of each court is directly related to the process and approach of the judges on the panels that are making the decisions and changes in the personnel of the panels. I wouldn't say it would be a difference between night and day, but there are subtle changes based on the personnel. So actually, my experience has been, on multi judge courts on the Supreme Court and the Court of Appeals that are basic work was the same.

00;26;28;13 - 00;26;38;12
Dean Koch
The, the environment in which you were working was the same. But the way the rhythm depended on the personnel on the court.

00;26;38;12 - 00;27;04;27
Judge Usman
I think one thing in terms of the U.S. Supreme Court versus State Supreme court, I think at the most foundational level, one of the things to think about here is the nature of governmental power in these two settings, right. The sort of first principle, federal power, federal government is a government of limited enumerated powers. The federal government only has the powers the Constitution confers upon.

00;27;04;29 - 00;27;27;02
Judge Usman
State governments are governments of broad residual authority. They have power unless power is taken away from them. And those are two different starting points, right? So if you're an attorney representing the United States government in a courtroom, one of the first questions is, do you have the power to do this? Does the federal government have the power to to take this action?

00;27;27;05 - 00;27;55;02
Judge Usman
Whereas if you're an Assistant Attorney General, has the power been taken away? And in terms of that difference, I think that comes into courts. Right. So the United States Supreme Court is a Supreme Court. That is the Supreme Court within a governmental structure of limited enumerated powers. And so you have a traffic accident that occurs somewhere across the state of Tennessee with no federal law questions at all, implicate.

00;27;55;02 - 00;28;21;04
Judge Usman
And in the United States Supreme Court doesn't have any power to to hear that case or to consider that challenge. It's beyond the scope of its authority. It doesn't belong to it. State Supreme court state courts are part of that governmental structure, a broad residual power governmental power. And so they have the ability to hear many types of cases that the federal courts would never be able to to hear, consider that it wouldn't arise.

00;28;21;06 - 00;28;44;13
Judge Usman
So I do think there's a difference between the two in, in that vein, I think there's another place we see, some difference between the United States Supreme Court and the Tennessee Supreme Court is the Tennessee Supreme Court has responsibility with regard to oversight of the profession within the state that I think is different than the United States Supreme Court.

00;28;44;13 - 00;29;07;28
Judge Usman
So the Tennessee Supreme Court's making determinations with regard to how someone becomes a lawyer. What is, what are the standards that a law school has to meet? There's certain rulemaking authority that the Tennessee Supreme Court has, the the United States Supreme Court doesn't. And I think those play in, in sort of asking about the difference between the two.

00;29;07;29 - 00;29;13;22
Judge Usman
There. I think that's a place where we see some differences between those two courts.

00;29;13;24 - 00;29;21;02
Host
Interesting last two questions. What do you think most people misunderstand about separation of powers and the judiciary, Judge Usman?

00;29;21;04 - 00;29;52;02
Judge Usman
I think part of the challenge is in terms of thinking about separation of powers, that I think the citizens can sometimes miss the absolute critical importance of separation of powers in terms of the functioning of of this country, of this state. Right. So people look out and they can get frustrated with government in terms of government, it's not seems to be not responsive or seems to be doing things that the voters, the citizens disagree with.

00;29;52;04 - 00;30;18;12
Judge Usman
And so I think there's a tendency to want let's fix that. This group is fixing, it's the court that's going to fix it, or it's the legislatures that's going to fix, or it's a Governor is going to fix, or the President's going to fix it. And the long term health, the long term viability of this, this experiment in American constitutionalism, it doesn't work without separation of powers.

00;30;18;14 - 00;30;44;28
Judge Usman
It the whole it's the absolute epicenter of American constitutionalism without it, you don't have, that sort of American approach to constitutionalism that that I think we've come to embrace over the course of more than than two centuries. And I think people don't always appreciate the importance of it. It seems technical, and it seems like it's one of these things that that's just a technical requirement.

00;30;44;28 - 00;31;08;20
Judge Usman
And this we can fix it. You know, the court can just do this and they'll fix it. The legislature can just do this and that'll fix it. The Governor can just do this. The President can just do this. I think we can lose sight that the the absolute gift of a for the future, really, of of separation of powers to the creation of this remarkable country.

00;31;08;22 - 00;31;39;23
Judge Usman
And so impatience with policy, impatience with, something that that a person looks at a group, looks out and says, that's not the way government should function, that's not the way government should work. And to miss that, ultimately, separation of powers is a cornerstone on which the whole thing depends. And I think sometimes there's a sense that you can you can see it as just some sort of technical requirement or interference, when really it's at the absolute core of the whole system.

00;31;39;26 - 00;31;40;06
Host
Dean Koch.

00;31;40;11 - 00;32;20;13
Dean Koch
As Judge Usman says it is part of our state's constitutional DNA and our country's constitutional DNA, and it is really important for, citizens to be aware of of number one, what the concept of separation of powers means, what the in general terms the roles of the branches of government are, they need to be aware that there are checks and balances in our constitutional documents that enable the cooperation, appropriate cooperation of the branches of government.

00;32;20;16 - 00;32;51;08
Dean Koch
And then particularly, though with regards to the judiciary, they need to better understand what role the judiciary has. And while it is not a perfect analogy, Chief Justice of the United States, likes to use the metaphor of calling the balls and strikes. And it's not just the situation where if the court decides a case that you don't like, they must be an activist judge.

00;32;51;10 - 00;33;08;00
Dean Koch
Or if they decide something you like, they're the greatest statesmen that have ever existed. They need to understand that concept better. And, and I think now it's it's something that's in the murky background that folks don't even think about.

00;33;08;02 - 00;33;14;12
Host
So why is the separation of powers still relevant to Americans today, 250 years after the founding of the nation?

00;33;14;14 - 00;33;48;06
Judge Usman
Everything in terms of representative democracy and governance that I think people embrace in terms of what this country is supposed to be, doesn't work without separation of powers, without separation of powers, it's non-existent. And you could be. One of the wonderful, transformative insights of the American Constitution. Is that diffuse shine of power among the different branches of government, so that they're checking each other, right?

00;33;48;06 - 00;34;17;04
Judge Usman
So that they're they're running into each other and, and Madison, I think, had a wonderful appreciation, both of, of the goodness that people are capable of and also the corruption that can exist. And separation of powers puts the branches in ways in which they're interacting and pushing against each other, limiting each other and checking each other. And if you don't have that, you don't have American constitutionalism.

00;34;17;04 - 00;34;46;25
Judge Usman
It's just not there. You can you can have, a constitution that has incredible rights right now. But if the court doesn't exist as a potential check, then majoritarian rule can eliminate those rights with ease. If you have, an executive that, essentially is making a law rather than Congress, then you don't have that deliberative decision making across representatives representing people from all 50 states, in the United States Congress.

00;34;46;25 - 00;34;58;24
Judge Usman
And you have sort of the will of an individual, in terms of what the law should be. Separation of powers is a cornerstone on which American constitutionalism stands.

00;34;58;26 - 00;35;34;11
Dean Koch
And I think, that two things is maybe a little repetitious. The first thing is, quite simply, if we didn't have separation of powers, we'd have a king. I don't think we want that. The second thing is that, if we didn't have separation of powers, we would have a chaotic government. Our our constitutional system is built on compartmentalizing government functions.

00;35;34;14 - 00;36;15;01
Dean Koch
And we do that because the people's rights are better protected. That way. The people's voice is going to be better heard when you have an active legislative branch that is representing or voicing the will of the people. So the separation of powers creates balance. Balance creates harmony, balance, create, creates, prosperity. When we are in balance, we don't have significant drastic, equal protection problems.

00;36;15;01 - 00;36;37;01
Dean Koch
We don't have First Amendment right to speech problems. We're always going to be debating something. But when we're in balance, that debate's going to be more, genteel. It's going to be more substantive. And, none of this would exist if separation of powers were not part of our system.

00;36;37;03 - 00;37;08;00
Judge Usman
Justice Gorsuch and, in a couple of recent books, has been pushing on the exact point that, the Dean Koch is, is making. And and one of the things he's talked about is if you have essentially all of the functions of government flowing through, let's say, the executive branch of government, if the executive's making the law, the executives enforcing the law, the executives interpreting the law through administrative agency courts, lawmaking becomes pretty easy and it's incredibly efficient to, to make law.

00;37;08;03 - 00;37;46;10
Judge Usman
And the country can move quite radically depending on who's in the White House. And you can make law very fast. The problem is the constitutional design is to have Congress make the law, to have the legislative branch make the law. And in doing so, there is that back and forth that the Dean is talking about in terms of there's compromise and it's messy and it's inefficient, but the the inefficiency, creates that greater balance in terms of, of lawmaking in comparison with essentially all of it running through one branch of government where it's very efficient.

00;37;46;13 - 00;37;54;03
Judge Usman
But it's not very it's not very balanced and it's not arrived at through through that messiness of the lawmaking process.

00;37;54;07 - 00;38;06;18
Host
I want to thank you both, Judge Usman and Dean Koch, for making time for this discussion. As Tennessee Court Talk celebrates America's 250th birthday. Tennessee Court Talk can be found on all major podcasting platforms.