Episode 1: Who Checks the Executive? In this kickoff episode of Battle of the Branches, Professor Will Baude explores the evolving power of the executive branch and asks whether Congress and the states still serve as meaningful checks. Joined by Professor Bridget Fahey and Associate Professor Ruth Bloch Rubin, the conversation dives into federalism, legislative oversight, and the real dynamics behind the separation of powers today.
Who checks the Executive? That’s one of the big questions that I find myself asking as I read the news, thinking about all of the things the executive branch can do, all the real “power on the ground” the President seems to have. And that’s something I’ve been thinking about for over a decade, across Presidents from both parties, as each new President takes bold actions that his supporters cheer on and his detractors decry.
Now I teach constitutional law here at the University of Chicago. So I know what the answers are in theory. The separation of powers. Congress. Federalism. The states. But how do those institutions really function? What do their interactions with the executive branch look like, in times of cooperation and times of conflict? Do we even have a “battle of the branches” or does that presuppose a battle that isn’t really happening?
To try to find out the answers to those questions. I’m here with two of my colleagues at the University of Chicago – Ruth Bloch Rubin, an associate professor of political science, and Bridget Fahey, a professor of law. Ruth is an expert in Congress, and political parties. Bridget is an expert in federalism. And I’m hoping to bring them together here to talk about whether Congress and the states still play a role as counterweights to the executive branch today.
Have a listen.
WILLIAM BAUDE: Who checks the executive? That's one of the big questions that I find myself asking as I read the news, thinking about all of the things the executive branch can do, all the real power on the ground the president seems to have. And it's something I've been thinking about for over a decade, across presidents from both parties, as each new president takes bold actions that his supporters cheer on and his detractors decry.
Now, I teach constitutional law here at the University of Chicago, so I know what the answers are, in theory, the separation of powers, Congress, federalism, the states. But how do those institutions really function? What do their interactions with the executive branch look like in times of cooperation and in times of conflict? Do we even have a battle of the branches, or does that presuppose a battle that isn't really happening?
To try to find out the answers to those questions, I'm here with two of my colleagues at the University of Chicago, Ruth Bloch Rubin, an associate professor of Political Science, and Bridget Fahey, a professor of law. Ruth is an expert in Congress and political parties. Bridget is an expert in federalism. And I'm hoping to bring them together here to talk about whether Congress and the states still play a role as counterweights to the executive branch today. Have a listen.
Obviously, there's been a lot about executive power in the news the past long time. And I think one thing that people who aren't as familiar with all American institutions may not have a great sense of is, what are the other institutions out there that are an important part of the government? How do they interact? Do they sometimes provide a counterweight to the executive branch? Is it really the presidency that drives everything?
So I'm hoping-- Ruth, you're an expert on Congress. Bridget, you're an expert on federalism and the states. I'm hoping we can have a conversation about what these other institutions are and how they work and what they do and don't do well. And so, Ruth, can we start with you and ask, what does Congress-- what does Congress do, and how does it work?
RUTH BLOCH RUBIN: Well, so as you know, Congress's chief responsibility is to make laws. And so it does that in a variety of different ways. The laws that create agencies that the president oversees in the executive branch. Congress passes laws that create programs that people experience on a day-to-day basis.
And Congress controls a lot of the funding. So it has, traditionally, the power of the purse, as specified by the Constitution, which we tend to think of means being able to write the laws that tell the states and individual taxpayers how much money they have to give to the federal government, and then allocate that money within the federal government, or in some cases, in grants to the states.
And so there's been a lot of consternation recently about who actually has day-to-day control over these finances. What powers does the executive-- does the executive branch, and particularly the president, have about whether if Congress has allocated funds to a particular agency or to particular purpose, whether the president can impound or claw back some of that money, choose not to spend it? And when it comes to states, whether Congress, when it has allocated money to the states, through grants programs, say, through the Department of Education-- whether the president can say, actually, states, you're not going to get that cash.
WILLIAM BAUDE: And can you just tell us a little bit more about-- that's the process in theory? Is that how it works in practice? Do we see Congress and the president bargaining over the big choices we have to face? Do we see Congress in charge and the president being the one implementing them, or is it mostly the presidency that makes the important decisions?
RUTH BLOCH RUBIN: So I think politics as usual, or at least what I would say in recent times, the way this typically works is the president, in consultation with executive agencies, puts together a proposed budget. That budget is then relayed to Congressional budget committees that are aggregating their own members' views about how federal dollars should be spent. A budget bill is written, and then that bill is ideally enacted into law, signed by the president, and then followed through. That money is sent to the executive agencies, and then they're able to spend the money as they're supposed to.
What's happening now is that the president proposes a budget. Congress accepts that budget with modification in some ways. That money gets relayed to the executive branch. And now, what we've seen under the Trump administration is that those dollars then don't necessarily go to the agencies, or the agencies are given those dollars, but then the administration's appointees to those executive agencies say, actually, we're not going to spend the money in the way that Congress has outlined.
And so this tees up a really important separation of powers question, which is if a majoritarian institution like Congress has voted to spend money in a particular way, is it contrary to the Constitution's prescription that Congress have the power of the purse to deny the agencies, the programs, the states the money that Congress has allocated?
WILLIAM BAUDE: Right. So we see this in recent headlines about, can the administration close down USAID or the Department of Education or all these other departments that are created by Congress, Congress decided we should have them. And then if the president decides he doesn't want to have them, either temporarily or permanently, suddenly, we have a question about who's in charge, right.
RUTH BLOCH RUBIN: Right, and the tricky thing is is that Congress does provide for opportunities for the president to say, we're not going to spend money in precisely the way that you, Congress, has dictated. For example, if there's some trouble finding individuals to-- if you have a grant program for grant recipients. If that takes longer, well, you don't have to spend that money. Congress isn't interested in waste.
And so there is wiggle room that the executive is granted by Congress. And I think the question we have today is whether e-- what have been called impoundments are truly impoundments, which-- I think there's a good case that they are, versus the more typical story, which is that oftentimes some federal monies allocated by Congress to the executive branch are not spent on the timeline or exactly in the same way as Congress had specified, because the facts on the ground don't always match up with what Congress envisioned some time ago.
I think one of the realities, as the founders understood at the beginning of American democracy, was that Congress was going to be imperfect at perfectly anticipating the problems that the Republic was going to face. And so they granted a lot of discretion to the president and the executive branch more generally to think about how those dollars would be spent on a micro basis.
WILLIAM BAUDE: Yes. So, Bridget, what about the states, how they fit into this picture? Sometimes when I read the news, when I talk to people who read the news, I get the impression that all the important institutions of American government are in Washington, DC, and that's Congress, and the president fight about things. And occasionally, in June, the Supreme Court steps in and tells them one of them is right and one of them is wrong. Are they missing something?
BRIDGET FAHEY: Yes, they're missing something, major. So we all know about the states. There are 50 of them. We know their names. We know where they are. We visit them on vacation, do road trips, love to go to national parks. I think people, as you point out, know a little bit less about the legal structures that distribute power between the federal government and the states.
So the Constitution-- and this is all simplification, obviously, but the Constitution is a document of enumerated powers. And when we say that, what we mean is the federal government has powers granted to it by that document. I don't mean to say that we have to fastidiously read every word and period to know exactly what the text says. Some interpreters of the Constitution think that.
But whatever interpretive method we use, what we're looking at in the Constitution when we're trying to decide what powers the federal government has is, has the Constitution granted that power in a affirmative way to the federal government?
All the other powers of government, generally, are reserved to the states. And this is operationalized by the 10th Amendment, which says, all powers not delegated to the federal government are reserved to the states or to the people, which is a part of the 10th Amendment that sometimes is easy to overlook. And we can have interesting conversations. My students who took my con law exam in the spring and were asked the question, what does, or to the people mean, might have many thoughts or traumas related to that clause.
What that means, though, is that the states are the governmental entity that hold the broader government's residual powers. That means anything that's not identifiable in the federal Constitution-- the states have that. Now, states can constrain their own powers through their state constitutions institutions, through-- federal constitutional rights constrain state powers. States can choose to delegate further powers to localities.
But that means that things like education, policing, road building and road maintenance, most land use, all the classes that we, here at the law school, teach in 1L, in the 1L curriculum-- tort law, property law, contract law-- those are the traditional areas in which state governments hold the power. So the first legal point about the states is that the states hold immense everyday governing power that constantly affects our lives.
WILLIAM BAUDE: So I think to many people, though, they think, yes, the states-- of course, they run the local parks. They decide about the traffic rules. They run the schools. But when there's a fight, when there's a disagreement, the national government is supreme. And maybe people who know something about American history would say, I understand that used to be contested. But we had the Civil War, and the national government won.
And so, at least for 150 years, the lesson is the states aren't supposed to check the national government. That's secession. That's something we rejected.
BRIDGET FAHEY: Yeah. Well, I want to qualify your-- qualify, a little bit, your statement that the federal government is supreme because I think you're right, that that is the heuristic that a lot of people use to think about this relationship between the federal government and the states. But it's important to see the federal government as supreme within its sphere of jurisdiction.
When the federal government is acting within its sphere of jurisdiction and one of its actions, a federal civil rights law, conflicts with a state law, the state law has to give way to the federal law. But we also have to keep our eyes on the overall distribution of jurisdiction between the federal government and the states, both formally in the Constitution's text and also informally.
States have enormous apparatuses of government. They have great reserves of power. For example, people just generally have a lot more trust and faith in their local governments than they do in their state governments and in their state governments than they do in the federal government.
So these very worrying approval numbers we see about Congress, which I know Ruth could probably give a-- could probably give us better than I can-- it's not the case that people always think that their mayor or their city council or their governor is doing the perfect job.
But people generally think more highly of government the more local it is. Even if they can't name that mayor or city council member or governor, I think they observe what those governments do in much more intimate ways than they do with the federal government, where so much of their information is just mediated through abstract recitations of law, 930-page laws passed by Congress or something like that.
So that kind of trust that local governments build up with their constituents is also a great source of power, an informal source of power, but a source of power nevertheless, that acts as a check against the federal government, even in ways that we may not be able to see if we're just reading a federal statute.
WILLIAM BAUDE: Yeah, I'm glad you put it that way, because I think part of the reason we're having this conversation is not just because of the abstract legal concepts by these institutions, although I personally love abstract legal concepts, and we'll talk about them all day, and I think we'll circle back to them. But I think part of-- the ultimate question this is about power. This is about who has power over what decisions in this country and how that-- how that works.
So I guess there are several different cuts or angles I'd like to get both of your thoughts about, about this, about how to think about how all these things work together, because again, there are a lot of moving parts. But I wonder if the place to start is with another source of power we haven't quite talked about yet, which are political parties.
So when you think about Congress and the president in the news, there's one way of thinking about them that people associate with James Madison and the founders, that we were going to set up these two different branches of power, Congress and the president, and each of them would check the other.
The president would make sure that Congress didn't go off in some direction and take too much power to itself, but Congress was there to make sure the president didn't become a mad king. And then the courts are there to make sure all of them stay in their lanes. It seems like political parties complicate this story more than a little. I don't know. Ruth, what do you think?
RUTH BLOCH RUBIN: Surely. I think it's harder to know precisely how. So I want to take one step back and say, there are a variety of ways we can think about what political parties are in the first place. And so we might think about political parties as just aggregating people's preferences in their heads and creating two separate ideologies. And so this is the ideas in folks heads, and there's not a lot of organizational apparatus beyond that. And that's certainly one way that scholars of political behavior have thought about partisan identities, in particular.
It's also the case that folks who are critical of political parties today often argue, that they don't amount to much beyond organizing ideas in people's heads. They're hollowed out, if you will. There's not a lot of organizational apparatus, as we saw back in the day with machine politics. And there's arguments that we should return to that kind of model.
But if we put that conversation aside and we say, look, political parties are both the kinds of ways that citizens interact and think about the political world and ways that they come together and identify candidates, and then how those candidates, if elected to office, behave together, then the way that political parties are going to interact in the separation of power system, both among the federal branches of government and then with the states, creates some really complex and, I think, interesting dynamics.
And so, at least at the federal government-- I'll leave it to Bridget to talk about the states-- is that we tend to think about political parties as when there's opposition between political parties that maps on to the different branches. So say Congress has majorities of one party and the president is held-- or is identified or runs under the banner of the other party-- that this should reinforce the kinds of clashes, battle of the branches, that we tend to think maintains that separation of powers.
So even though they're sharing responsibilities, they're going to jealously guard their authority, and this creates a safety network against the possibility of monarchy, dictatorship.
The problem is is that if the same party has a friend in the White House and majorities in Congress-- that those allegiances might complicate the kinds of institutional allegiances that the framers imagined lawmakers and presidents would have. Here, the courts are more confusing because we're not really supposed to pretend that-- or act as if they're partisans. And you guys know better than me whether that's true or not. I'll leave to whether they're politicians in black robes to another conversation.
But at least as it goes with the legislature and the executive branch, we tend to think that under periods of unified government, there's the risk of consolidating power in maybe one branch.
It's not obvious that it would be the presidency versus Congress here because you might imagine that a friendly president would delegate power to Congress or cede and fall behind. And I think at different moments in American history, there was a concern that, actually, "Congress is king" for this reason, whereas when we have deeply divided, polarized parties and opposing partisan allegiances, say, Congress is controlled by one party and the presidency the other, we're going to get those thick, interinstitutional battles that we think are a safeguard.
And so those are the moments where we often worry that partisan loyalties are getting in the way of the kinds of collaboration that is necessary in our system to do anything. In order to make law, Congress has to pass legislation, and it has to be signed by the president-- or by the president. And so if there's biases or hostilities there, then you're just going to be picking fights and rendering both institutions less capable.
WILLIAM BAUDE: Right, I feel like in times when Congress and the president are all controlled by the same party, you hear, well, Congress is useless. They just do whatever the president wants. And at times where Congress and the president are controlled by different parties, you hear, well, Congress is useless. All they do-- they'll never cooperate with the president wants. They won't get anything done. And that's the model--
RUTH BLOCH RUBIN: Yes, and so I think-- Congress is always ripe for criticism. And so I think this is one reason why we think that. I think what's interesting is that recent studies have actually pointed to the fact that thinking about the parties as cohesive teams warring with each other actually misses a lot of intraparty fighting that can limit the power of these partisan allegiances from blowing up the separation of powers, if you will.
So one reason why legislation fails is actually more likely to be because of majority party infighting than it is because of interparty conflict. And so even if you're a Republican president with Republican majorities, your own party's disagreements may be a better check on your exercise of power than, say, having a Democratic majority or even just the institutional differences between Congress and the executive.
WILLIAM BAUDE: Does the really happen. Are there examples where we see something that one party wants to do that doesn't happen because there's a--
RUTH BLOCH RUBIN: Yes. So there are a variety of different ways you can measure this. One is legislation that the president proposes. How much does it change? What kind of deals have to be made to cobble together a majority? How long does it take? So we saw this with the one Big, Beautiful Bill that was subsequently called an act, where the legislation, as devised by party leaders, had to be modified in order to cinch that tight coalition together and squeak it through the House and ensure that it was able to avoid having to go through the standard Senate procedure, but rather be able to be-- use the reconciliation process and thus not be susceptible to filibuster.
So all of that required keeping Republicans together. And as we saw, there was a lot of opportunities for individual Republican senators and members to try and get what they wanted. And if everyone is on the same team in the classic model of unified parties marching in lockstep, then that should have been an easy deal to strike. And as it turned out, it took a lot longer.
We saw that in a previous administration with-- if you think about the Build Back Better bill, which did founder. Even though you had a Democratic Congress and a Democratic president proposing it, it was disagreements within the Democratic Party that made it a lot harder to pass that legislation, and a much smaller Inflation Reduction Act was passed as a result of that. So I think we do see these interparty fights really debilitating presidential ambitions or congressional leaders' ambitions. Maybe we need more of that. [LAUGHS]
WILLIAM BAUDE: That's great. And then, Bridget, do the states-- do parties affect the way we think about federalism in the states, too? Do we see the same problems, solutions? What do you think?
BRIDGET FAHEY: Yeah, so there is a classic idea that the states would do the thing that Ruth described Congress doing, which is, to paraphrase "Federalist 51," let ambition counteract ambition. The idea is that you create institutions of government and you populate them with the kind of people who want to be politicians, and those people jealously guard their own power.
And so you can have a system in which not everybody is, in every case, working for the "public good," but you get a public good, which is a competition over power that ends up sort of diffusing and dividing it.
And the thought was states will want to do this. You do see, in some ways a similar story to the one that Ruth was describing in the modern world, which is red states really like to have the federal government controlled by red. And when it is, they're happy to play ball, including in ways that surrender state prerogatives.
It's exactly the same with blue states. When the president or Congress is blue, blue states like to collaborate, coordinate, even, you could say, maybe collude with the federal government in ways that circumvent the idealized constitutional design. So we're not always going to see 50-state competition for state authority or state prerogatives against the federal government.
What's different about-- the different dynamic with the states is that because there are 50 states, we get much more pluralism. So there's always going to be a minority party, judged from the vantage point of the control of the federal government, that actually has decision making power in some number of states.
So right now, I think 20-- there are 23 blue states, and those states are going to jealously guard their state prerogatives. They may not have been doing that during the Biden administration. They may not do that in the next Democratic administration. But we can trust that red states will assume that role in those administrations.
So there is what Jessica Bulman-Pozen, who's a federalism scholar at Columbia Law School, calls partisan federalism. There's certainly a partisan federalism dynamic. But there are also-- there's enough distribution of power across the states that you're always going to see serious fights between the states and federal government.
WILLIAM BAUDE: Right, I guess one way to think about that is, in modern memory, California is always a blue state. Texas is always a red state. They're both big states that do a lot of things. So even when Congress and the president are controlled by one party, there's always some big part of the government in the West or in the South that isn't. And that becomes the counterweight? Is that the idea?
BRIDGET FAHEY: Absolutely, yeah. And large states, like California or Texas or New York, can almost, as independents, be counterweights to the federal government in many respects. States also form coalitions.
WILLIAM BAUDE: What does that look like?
BRIDGET FAHEY: Yeah, so it's not uncommon to see the group of blue states fighting-- collaborating to resist what they would style federal overreach and the group of red states fighting what they would style federal overreach. But even within those blue and red groups, you see a lot of division.
One thing that's important to understand about states and is intuitive for those of us who like to travel around the country and visit states as tourists is they're very different and they have very different needs.
And so although in some ways, they might-- the color of the controlling political party might dictate their interest in a particular case, in many, for example, of the state lawsuits against the Trump administration over the last several months, you've had all of the blue states. And in many, you've had just a subset, and in some, you've had just one state, asserting an interest distinctive to that state.
So I think to be interested in federalism and to federalism is to pluralism. And sometimes institutions and entities that are very different can get together. And sometimes they just go it alone, and I find that really exciting. I mean, there's a whole-- you could write a law review article-- maybe somebody has-- and apologies if I haven't seen it-- on the state of Vermont's federalism docket, yeah.
So the State of Vermont is a player in so many significant federalism cases, in part because of dynamics just distinctive to Vermont that can't really be assimilated into blue/red ideology. And it's cases like that that I find very fascinating, in addition to the broader dynamics. You see that, too.
WILLIAM BAUDE: And the counter question might be, and does that ever really work? Is there ever something that the president really wants to have happen, that Congress is willing to let him or her have happen, that then can't happen because of the states, because of the state pushback? Do we ever see that actually-- I don't know-- successfully check?
BRIDGET FAHEY: Absolutely, yeah. You see this across presidential administrations. So one piece of technical legal trivia that might be mostly of interest to the lawyers listening-- but context for everyone else-- is it's a little bit complicated to get what we lawyers call standing to sue in federal court. It's not the case that anybody who objects to something the president has done or Congress has done can file a lawsuit.
States, for a variety of reasons that I won't bore everyone with, often find it easier to assert standing. That basically means that they've been harmed by the allegedly wrongful action.
And as a result, states are often at the front line of pressing legal challenges. That doesn't mean they're always going to be successful. But if there is a defect in a law or in an executive order or in an administrative agency's action, a state is a very likely plaintiff to press that lawsuit.
Now, states also press legal theories that aren't going to be successful, and states lose, too. But states have successfully slowed a lot of the actions of the current administration, sometimes with lawsuits that have, I think, very strong legal arguments and sometimes with lawsuits that are much more playing in legal gray areas.
But they're being, I think, very strategic litigators right now. And they're able to get in front of federal judges to assess the constitutionality and the consistency of executive actions with statutes in ways that it's hard for individuals to.
WILLIAM BAUDE: So, again, the courts then come in as another player in the Battle of the Branches, I guess. So another overlying theme-- and this also builds off of what Ruth started us with is money. So in a lot of ways, money is power. And so if the federal government has enough money, it can maybe give it to states and convince them to do things they don't want to do. The federal government is changing rules for when states get money for Medicaid and other programs.
So is that something that ultimately pulls power away from the states and puts-- does that weaken federalism, just because the federal government has all the money?
BRIDGET FAHEY: Yeah, great question. So I think that it's important to think about the funding flows from the federal government to the states not as unilateral largesses, gifts from the federal government, but instead as-- an I teach contracts, so a hammer sees a nail-- but instead as exchanges, as bargains between the federal government and the states.
And I think if we are willing to see, as I think we should, we the states are offering in return in a frame broader than just money, which is true of most contracts-- I pay someone, and then they mow my lawn. They do a service, or they give me information, or they paint a picture or whatever.
The states do enormous services for the federal government in exchange for those funds. And the Supreme Court has, in its contemporary federalism doctrine, recognized that element of exchange. That's really important because when you engage in a bilateral exchange with another entity, there are lots of opportunities. You become vulnerable. So there are opportunities for manipulation. And so the Supreme Court has begun to police that.
The ideal thought-- and I think this has been aired throughout Supreme Court doctrine in the last century and was very much a part of federal state practice in the 19th century-- is for the federal government to engage with the states on a voluntary basis, much like a corporation would engage with a supplier or individuals would enter into contracts with one another, and to police the voluntariness of those relationships.
So it means, for example, that when the federal government offers grants to states, it can't be deceptive about what the conditions on those grants are. It can't hide them in ambiguous language or leave conditions unsaid, and then later say, actually, in order to get this grant, you had to agree to this particular thing.
There are lots of legal complexities that can arise from this principle that you have to state conditions clearly, including if Congress doesn't impose a condition on a grant but the president later says, we're adding a new condition to this grant that you have already received, does that violate this principle that states need to, to, again, paraphrase the Supreme Court, enter into these relationships cognizant of the consequences of their participation?
I think it does, because I'm a big proponent of this principle that the federal government and the states should bargain on relatively clear terrain. So there are legal ambiguities that continue to need to be litigated.
I think to come back to your question, does the fact that the federal government gives states so much money mean that the states are really controlled by the federal government? I think the answer is, no. The states exercise, and can exercise, especially if they want to, a significant amount of power in these programs.
And one thing to appreciate is it really varies by area. There are some areas where the federal government, I think, quite desperately needs state capacity. It can't implement the Medicaid program itself. So if it doesn't want to eliminate the Medicaid program, it has to entice states to participate in that program. States, of course, don't want to lose Medicaid funding. So there's bargaining that needs to happen on both sides.
Immigration is another area where-- historically, we think about the federal government as possessing the power to regulate immigration, but the federal government has relied heavily on voluntary help from states in enforcing immigration law and in helping to regulate immigration.
And that's because states have 10 times the police force that the federal government has. They have built up state capacity and expertise over time. They have trust of local communities. All of that is a very enticing resource to the federal government. So I think if we expand the frame of what counts as value in these government-government interactions, we see a lot of value being exchanged, not just a one-way flow of fiscal power from the federal government to the states.
WILLIAM BAUDE: So then just to push a little bit on the limits of the reality of that, an example that I know you teach your students-- we used to have a different drinking ages in different states, where some states said people could drink at the age of 18, and other states said it had to be 21. For whatever reason, the national government decided it liked 21, didn't like these 18-year-old-- 18-year-olds being allowed to drink.
And so they went to the states and said, well, maybe we can't just pass a law and change that, because this is a question that's up to the states. But we can tell you that if you want to have interstate highways in your state, which every state does, then you've got to change your drinking age. Can they get away with that?
BRIDGET FAHEY: Yeah, so the legal question about the relatedness between a grant that the federal government gives the states, safer highways, and a condition that the federal government tries to impose is one of the axes that the Supreme Court has said can pass this line between inducement and compulsion.
So if the federal government says, we'll give you desperately needed FEMA aid to help deal with the aftermath of natural disasters, something that's important and pressing in many communities, but as a condition of doing that have to pledge your ideological fealty to the White House, I think the Court would analyze-- the Court would say, the federal government is allowed to give a grant to the states for emergency aid, and it is allowed to impose conditions on that grant that help the grant be administered in the optimal way for the federal government.
But if the federal government seems to be leveraging that grant to accomplish some unrelated objective, and in particular, an objective that Congress wouldn't have the power just to impose on the states, then it starts to look like the federal government is trying to claim constitutional powers it doesn't have, rather than make sure that when Congress spends money using its appropriations power, it gets to decide what that money's spent for. So you can impose conditions that relate to the purpose of the program, and you can't impose conditions that don't relate.
So for the listeners who are still wondering if the federal government can condition highway funds on a drinking age of 21, the answer of the Court gave is, yes, it can. But there was quite a bit of dispute about that point.
And the basic reasoning that the Court used is that the federal Department of Transportation reasonably believed that on federal highways, if drivers could drink at a younger age, there would likely be more traffic fatalities. And so the analysis just turns on, does this actually feel like it's improving the quality of federal highways, or is this a kind of moral project to deny fun to the youths?
And if they conclude the former, then it's acceptable, and if they conclude the latter, it's unacceptable. But there was serious dispute about that question. And it's a really fact-intensive inquiry.
WILLIAM BAUDE: So I guess one thought about both these kinds of institutional counterweights, and one thing that makes them different from the executive branch, is that ultimately, there's one president, and he's more or less in charge of most of what happens in the executive branch. But Congress has a lot of people in it, and even the party has a lot of people in it. And then there are a lot of states, and they're very different.
And so it seems like one-- is it fair to call it an unfair advantage? A built-in institutional advantage that the executive branch has-- it can take a position, and then other institutions are left fighting amongst themselves over what their position is. Is that accurate descriptively, and is that, normatively, something to worry about?
BRIDGET FAHEY: I think the states in Congress are differently situated here because Congress, in general, has to act as a unified entity. We have the process of bicameralism and presentment, in which statutes go through the House and then the Senate, and then are presented to the president in order to create unity from the disunity that you describe.
But I think federalism can accommodate and even celebrate disunity among the states. I don't think we should see it as a problem that states disagree, have different views, fight with each other.
There are also-- one thing I haven't highlighted, but it important and undercovered, is even formal legal mechanisms through which states can coordinate with one another by entering into interstate compacts, which are used to resolve lots of difficult jurisdictional problems and create important programs.
And they don't get that much attention because they're not always really partisan. And there's not always some person or entity to resist.
Because of that pluralism, though, with respect to the president, I think, sure, it's an advantage that-- and constitutional doctrine about the presidency says this. We need one branch of government that can be energetic, that can act with dispatch. Those are the kind of words that the Supreme Court really loves when it describes the president, though, which don't appear in the Constitution-- in the Constitution itself.
That can be an advantage. But when you're a president trying to accomplish something and your counterparty is not one person, but 50 states and localities and many, many different members of Congress, your capacity can be arrested because of the need to coordinate with so diverse a set of counterparties.
So states have the capacity to respond, and they have the capacity to respond in diverse ways that make it difficult for that initial action. So I think there are there are distinct advantages and pros and cons to both.
RUTH BLOCH RUBIN: So the conventional view among political scientists is that presidents, because they're this unitary actor, are at a distinct advantage over Congress. Congress is-- Ken Shepsle, famous legislative scholar, puts it-- is a "they," not an "it." So it's rife with collective action problems. You're going to have to coalition build. There's all of this procedure that you're going to have to get members to agree to to show up to. They're all wanting to go off to their districts or states to gladhand and raise money and things like this.
And so Congress is just going to be slower. It's going to be sclerotic. All of those differences of opinion are going to have to get sorted out, whereas the president is one person with one brain that's going to be able to act with purpose, deliberately, energetically, all of the adjectives that many Federalists use to describe the president.
I think it's worth noting that as a matter of history, this wasn't always viewed as an advantage. So George Mason famously worried about the president and that he wouldn't have this council of advisors, this collective wisdom that Congress aggregates. And so maybe we should rethink whether having one person out there, having all their thoughts is really the advantage that we've attributed to it.
But I also think it's important to appreciate that Congress isn't unaware of this collective action problem that it routinely faces, and so it's developed institutional solutions to this problem.
And so two of them, I think, that Congress scholars tend to think of as being most important is, one, the committee system. So rather than have-- in the Senate, a hundred senators have to agree on every piece of legislation and write it together, all in the same room-- can you imagine? We all that group work is hard. If you have a hundred senators there or even-- it's a party, 51 senators out there writing one piece of legislation-- that'd be madness. That's not how it works.
We have committees of smaller groups that write the legislation, that conduct hearings, and then report back to their colleagues. And so this is a way of streamlining the process. It might look messier, because you have all of these little way stations until you get to action. But those are means of solving these collective action problems.
Another one we talk about are political parties themselves. You have to build a coalition. You have to get to 218 votes in the House. Well, a really easy way to do that is if you have 218 members that subscribe to the same party identity, that wear the same blazer pin, whatever it is, that identifies them as members of the same team, well, when it's time to vote, you know the numbers are. Or at least you're come pretty close to knowing what the numbers are. And so that creates efficiencies.
So I think we run the risk, as, certainly, legislative scholars-- is overstating the extent to which Congress suffers from collective action problems. And the reason this bites is, again, if we think back to this question, inferentially, as to whether-- is Congress not acting because it is unwilling to do something or because it is incapable of it? The fact that maybe those collective action problems aren't as big as we thought means that we might think more that it's about Congress not wanting to do something, as opposed to not being able to.
WILLIAM BAUDE: So I've, relatedly, wondered how much of this is a news effect, because again, because the president is one person, or maybe for other reasons, if the executive branch wants to make front page news on any topic, it seems like it can do so very easily, whereas if states or Congress want to take back control of just the conversation, it seems like that's harder for them to do? Am I imagining that, or is that--
RUTH BLOCH RUBIN: I mean, I think that's right. Especially historically, Congress didn't have individuals within it who had the same gravitas as the president, beginning with the Reagan era. It's interesting. Reagan was seen as the most telegenic president who could be this great orator. It was at that moment in time that Congress started to think, wow, we got to have a guy like that.
And so Tip O'Neill is really the first speaker to address members of the press regularly in formal addresses or to go on television. And since then, speakers, Senate majority leaders do this all the time, both Informally engaging with the press, but then also in formal news hour shows. And so there's-- maybe, to the extent that the president has the bully pulpit, maybe there's great old rivalry there.
But I do think one of the things that's challenging for Congress as an institution is that it's a leaky ship. So there's lots of stories about process, about members fighting with each other, arguing over things that are important, are trivial. And so it's easy to focus on the extent to which it's a hot mess, whereas presidents are decisive actors who go out into the Rose Garden, at a podium, and they make announcements and proclamations. And we don't see a lot of the follow-through unless there's leaks within an administration about how things aren't going exactly as they thought, or there's backbiting among officials.
And so I think if you're just a person reading the news, it's easy to think that Congress is a dysfunctional institution where members can't get together and the president is a lone actor out there, making politics and policy and law. And it's hard not to think that that's where the power is.
BRIDGET FAHEY: Yeah, and I also think the president himself can make decisions with dispatch and be energetic. But she runs an enormous enterprise, and disciplining that enterprise is a challenge.
And so much policy-- I mean, as a federalism scholar, I see this all the time. So much important law and policy is made at the periphery, at the periphery of the federal bureaucracy, and even at the periphery of state bureaucracies.
So what you could call line-level bureaucrats are interacting with one another. The people who administer a Medicaid program inside a state, and the people who, within the Department of Health and Human Services, are mapped to that region for the administration of the Medicaid program-- they're people who a lot and care a lot about the Medicaid program. They're in the weeds and details in ways that the Secretary of Health and Human Services, and certainly the president and her advisors in the White House are not.
That is its own source of power that's an informational advantage. And I think if you want to make a decision at the top and have it filter down all the way to the periphery, it takes a lot of deliberate effort and energy, and in some respects might not be possible.
So that, I think, helps reinforce Congress's power a little bit. The thing that the line-level bureaucrat in the Department of Health and Human Services is looking at, and the line-level bureaucrat inside the state Medicaid department is looking at is not necessarily the president's executive order. I mean, I'm sure they are aware of this.
But they're reading the federal-state agreement that structures the Medicaid program, this document that probably nobody in the White House has ever heard of or read that's different for every state, that's-- in many states, are hundreds of pages long because they're just trying to get instructions for their day-to-day life and routine. And that document itself was negotiated by those agencies in light of the Medicaid statute.
And so that is a level of almost legality in a world where we're thinking about and concerned about the rule of law that I think should provide a degree of reassurance. That doesn't mean that a really motivated president can't override or steer the machine. But it means that in the day to day, a lot of what is driving the governance happening between the federal government and the states is the statutes that Congress has passed and the intergovernmental agreements that implement those statutes.
WILLIAM BAUDE: All right. So I have one last big question about both these things. And I guess it's especially a bit of a University of Chicago question. But I often think-- in all the work we do about what people sometimes call the research frontier, there's the boundary of everything we. And then part of what top scholars are doing is trying to push the boundary of what we know, trying to learn something new at the margins that expand what we know.
So I guess the big-picture question is, what does the research frontier look like for questions of Congress and for the states? What are the big questions that we know the answer to yet that people are trying to figure out? What do you put on that list?
BRIDGET FAHEY: I can start an answer for federalism. I mean, I think there is a lot we don't know. Starting where my last answer left off, I think what happens in what you could call the bowels of our federalist system is pretty opaque. We know where to look if we want to read federal statutes passed by Congress, and where to look if we want to know what laws passed by state legislatures are.
But the federal government and the states also create a joint law through these agreements. And that law is not collected or written down anywhere. It's not codified in the way that other forms of law are codified.
And it gets still more complicated when those agencies interpret those laws and develop even norms that govern how they're going to jointly administer these programs. So the coordination techniques and the law that helps coordinate is a little bit of an opaque legal terrain. And once you start to understand that legal terrain, you see lots of interesting legal questions related to it.
Another axis that I think is really important, and I'm at least following closely right now, is-- we don't see major federalism cases come to the Supreme Court very often. And one reason, I think, is the major federalism cases that characterized the '90s and early 2000s-- I think some people think, they were successful. They deterred the kind of federal overreach that was a problem.
So one of my favorites is the anti-commandeering rule, which was announced in a pair of cases in the 1990s but reflected long-standing principles of federal-state interaction, in which the Supreme Court said-- it's an evocative title for-- and nicely illustrative one. It said, the federal government can't just commandeer state governments.
It can't say, you've developed all of this capacity, all of this expertise. You have all these employees. You have this information. You control these beautiful state parks. We will take them and apply them to federal projects. That would be to commandeer the states and turn them from independent entities into, as Justice O'Connor said, "squares on the federal government's organizational chart."
And I think many federalism scholars would say, that solved commandeering. Commandeering doesn't happen. And I think one reason is that commandeering in those cases happened on the face of a federal statute. The statute said, state, do this thing for the federal government, or states generally.
My view is that commandeering, in lots of subtle ways and on a spectrum, happens all the time inside federal administrative agencies, through executive orders, through other forms of legal-- through other legal devices that are less obvious and less apparent on the face of those anti-commandeering cases.
So I think we have to keep our guard up a little bit. As I have said, I think states have a lot of power. I think even states don't always recognize what power they have to resist acts of federal overreach or attempts. So I think states need to recognize that. But I also think we scholars need to constantly be alert to cleverness of the federal government.
And in a system of separated and divided powers, each institution, if ambition is counteracting ambition, is always devising new ways of pressing the boundary. And so we can't rest on our laurels a little bit and assume that-- an act of federal control or intervention into state governance that looked one way 30 years ago isn't it going to look the same way today.
So I think a lot of the academic frontier is identifying what those techniques and strategies are, and then conceptualizing them by pushing the-- helping courts push the doctrine forward a little bit. We can rely on states to be pressing these arguments in litigation. But I think it's a distinctly suitable terrain for scholars who can take a kind of panoptic view.
States are thinking about that state. They're thinking about how to advance the interests of Illinois or California, and thinking about the system as a whole.
RUTH BLOCH RUBIN: Yeah, so I think when we think about Congress, there's both empirical questions that-- I mean, it's crazy when you think about it. People have been studying Congress since it started. And yet, I think there's still a lot we don't know about how the institution functions today. So there's just very basic questions about, to what extent has procedure evolved, changed?
We talked today about-- we're in an era of unorthodox lawmaking. We don't do things the way we used to. How does that materially change outcomes? Does it? Is this just nostalgia for the old ways, which sidebar, were not so great at the time. People complained about it then, too. So is this just recency bias?
And so I think for legislative scholars, it's cataloging the ways in which process has changed and identifying the extent to which that alters outcomes. Does that change the nature of the bills, delegations of power, discretion, authority to other branches, to states? Things like that.
We also have questions, I think, about how broad trends play out across time and with each other. So to wit, we might think polarization-- how does polarization change how the legislature functions? Is there a sort of adjustment period and then things start to work the way that they used to, or has polarization dramatically changed the terrain on which lawmakers operate?
What do we make of the fact that congressional majorities are slimmer and less secure than they used to be? There was this era in the mid-20th century where Democrats controlled big majorities for decades, and so lawmaking looked different than it does today, where you get alternation in power between Republicans and Democrats.
How does that change fundamental principles of how we think lawmakers operate? A classic idea is that lawmakers are primarily motivated by reelection. Well, do we have selection processes, now, among political parties, at the state level, in voting booths, when people are making choices among the candidates who choose to run, which suggests that, maybe all candidates don't want to get reelected. They go in, they serve their time, if you will, and then they exit. And how does that change legislating looks like? So we have just empirical questions that I think are important to think about.
There's also the downstream normative questions. Is Congress, as some have argued, the broken branch, or is it functioning in different ways but still functioning? Is it loping along? Is it actually more energetic than we give it credit for or sclerotic in ways that are productive?
One question is, in as a diverse republic as we have today, where there's maybe not a lot of agreement about what should be done-- is that inability to act actually salutary for the country? And so I think thinking about all of those questions against the backdrop of real changes to Congress and the undergirding logics that we tend to think of as being "the rules" of legislative process is really important for legislative scholars.
And one thing I think that's important for legislative scholars is that there was a period of time where we relied on a lot of big data, like how many bills have been passed, how long are they, how many pages. And I think we're starting to see the limits of doing some of that work, and that really to understand how Congress is functioning, you have to go into the legislature and engage with members of Congress, talk to staffers, and understand what politics is really looking like. And so I think there's a lot of exciting work to be done by scholars here and elsewhere on that topic.
WILLIAM BAUDE: The Battle of the Branches series explores how traditional norms surrounding executive authority, legislative oversight, and judicial intervention are increasingly being tested and reshaping our democracy. Grounded in UChicago's values of free inquiry and expression, and driven by rigorous interdisciplinary research. The project brings together leading scholars to explore these questions with depth and nuance. We hope you'll join us this summer.
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