What Happens When the Balance of Power Becomes Unbalanced?

Return to this episode's webpage.

Speaker 1: The high court's conservative majority reversing a nearly century old precedent that required the president to have good reason before firing an agency leader.

Speaker 2: President Trump called it the biggest and most consequential decision issued by the court, which he says gives tremendous additional power back to the presidency.

Speaker 3: It underscores the administration's argument that the president has the ability to get rid of anybody who is on any of these commissions.

Speaker 4: These are such incredibly significant decisions. In many ways, these will be some of the defining opinions of the Roberts' Court.

Simone Leeper: The second Trump administration has been a particularly news- heavy one. So you could be forgiven if perhaps President Donald Trump firing Rebecca Slaughter, one of the commissioners at the Federal Trade Commission in 2025 didn't hold your attention for long. But that firing triggered a huge fight over whether that action was legal and whether the president can fire officers from agencies that Congress intended to be independent of presidential control.

The case made it all the way to the Supreme Court, culminating in one of many recent rulings that will have far- reaching consequences for our democracy. That decision has paved the way for a troubling consolidation of power in the executive branch that further erodes our democratic principles and ideals.

I'm Simone Leeper, and this is Democracy Decoded, a podcast where we examine our government and discuss innovative ideas that can create a stronger, more transparent, accountable, and inclusive democracy. I work for Campaign Legal Center, a nonpartisan organization that for 25 years has been leading a campaign to solve the wide range of challenges facing American democracy.

This season on Democracy Decoded, we're focusing on something that is at the very foundation of our country, but doesn't usually get the splashy headlines. The rule of law, when it works well, we hardly notice it. But when a presidential administration and its allies undermine or outright ignore this constitutionally enshrined cornerstone of our democracy, things start going sideways very quickly for Americans.

The rule of law isn't just a legal principle, it's a safeguard. Simply put, it ensures all people, including our most powerful public officials, are subject to the same laws and that those laws are equally enforced. It means that no one should be above the law, and it preserves the checks and balances that prevent any one branch of government or any one individual from becoming too powerful.

The rule of law also protects the rights that define us as Americans, from the freedom to speak out and express political dissent, to the right to choose our own leaders.

Unfortunately, President Trump's second term has brought a wave of actions that challenge this basic principle. From unlawfully attempting to take control of federal elections to threatening peaceful protestors and bypassing Congress' power of the purse, Trump's agenda is clear, dismantle the checks and balances that protect our freedoms and replace the rule of law with the rule of one. These actions, which are unconstitutional or otherwise illegal, threaten the core of our democracy.

Today, our episode focuses on one pillar of the constitution and the rule of law, the separation of powers in our federal government, specifically, what happens when one branch of government overreaches its authority and the other two branches abandon their responsibilities to provide checks and balances.

The Supreme Court case mentioned at the top of this episode, Trump v. Slaughter, is important because the court's ruling has undermined one of the essential components of this system of checks and balances, that the commissioners who had independent government agencies earn and keep their jobs regardless of their political outlook or alignment with the president.

For the system to work properly, it's crucial that Congress be able to create agencies and shield them from presidential control. The separation of powers is a fundamental safeguard of the Constitution. Americans adopted it from the ancient Romans, from English common law, and from the French Enlightenment, and it has supported two and a half centuries of American government.

Melissa Murray: It's helpful to go back to the beginning and think about what the separation of powers is and what it was intended to accomplish.

Simone Leeper: That's Melissa Murray. She's a law professor at New York University, a co- host of the Strict Scrutiny Legal Podcast, and the author of a book called The United States Constitution: An Annotated and Comprehensive Guide for the Modern Reader.

Melissa Murray: When the framers were drafting the Constitution, they were really responding to trauma. During the Colonial period the British Parliament and the British Crown had effectively become tyrannical. You had the parliament passing all of these laws, the intolerable acts that just made it hard for them to live. The parliament was imposing tariffs on basic goods like tea, making those things grossly exorbitant and putting them out of reach for many of the colonists. And then you had the British Crown sending in an army into their cities. This is what precipitated the Boston Massacre.

So they saw in real- time what a government that was so powerful that it became tyrannical actually looked like. They were also dealing with what had happened the preceding 10 years before the Constitution, and that was that they fought a war with the greatest global superpower the world had known up until that point, Great Britain, and they were doing it with a government that was pretty much a loose confederation of states. It was basically held together with gum and friendship bracelets and against all odds, they prevailed.

When they sat down in Philadelphia in the summer of 1787 to draft the constitution, they knew they had to create an effective government, but they couldn't create a government that was so effective that it was so powerful that it ultimately slipped into tyranny and ran roughshod over the people.

Simone Leeper: This point Melissa's making is critical. In the modern United States, we tend to focus on the separation and separation of powers. But as the constitution was being created, the framers' first job was to describe and carefully assign powers where none had really existed.

Melissa Murray: Their solution for this was to divide government power. So the first division is to actually identify the powers of the federal government and make those distinct from the powers that the state and the local governments get to exercise. And then within the federal government, they divide power again horizontally between the three coordinate branches of the federal government.

Simone Leeper: As you probably know, these three coordinate branches are the legislative, the executive, and the judicial branches, Congress, the president, and the courts. And it's a framework that comes from a French philosopher.

Melissa Murray: This is an idea that they get from Montesquieu, the sort of checks and balances. Each branch will have its own set of powers and will be able to check the powers of the other branches such that no branch can consolidate power and become tyrannical.

We are at a moment, I think, where those basic principles have eroded, where we have a Congress that appears relatively supine, not doing a whole lot and not really protecting the prerogatives that are constitutionally allocated to it. You have an executive that is incredibly muscular and assertive, maybe the most muscular and assertive executive branch we've ever seen in the history of this country. And then you have a court which has effectively midwifed this very muscular and assertive executive by authorizing in a series of decisions the kinds of executive excesses that I think the framers would've looked askance at.

Michael Luttig: The Supreme Court of the United States in its decision a couple of years ago in Trump v. United States essentially placed Donald Trump above the law.

Simone Leeper: This is Michael Luttig, a lawyer and retired federal judge. In 1991, President George H. W. Bush appointed him to the Fourth Circuit Court of Appeals. Judge Luttig served 15 years before leaving to become the general counsel of the Boeing Company. Since retiring from Boeing, he has focused on promoting good governance. He says American democracy is " precarious" under Donald Trump.

Michael Luttig: He has forcibly collapsed the separation of powers in the United States. American democracy is hanging by a thread and it would not be possible to say today that America is governed by the rule of law rather than by men.

Simone Leeper: The principle of a state ruled by laws rather than by individuals goes back millennia. Aristotle wrote in his Politics more than 2, 000 years ago that it is more proper that law should govern than any one of the citizens. The principle is so familiar that you wouldn't think it would be up for debate, but the United States has struggled to maintain it throughout its history.

Melissa Murray: We've seen these kinds of executives throughout our history. Abraham Lincoln famously suspended the writ of habeas corpus. That was viewed as an excessive use of executive power.

Simone Leeper: Once again, Melissa Murray.

Melissa Murray: Franklin Delano Roosevelt was viewed by some as tipping into the kind of despotism that he railed against as commander- in- chief during World War II when the United States was fighting Hitler and Mussolini.

But I do think that this particular president is unusual. He's doing a lot of things that I think we've never seen before, and he's doing it relatively unchecked.

Both Lincoln and Roosevelt had checks in that there was Congress stopping them. There was the courts limiting the expansion of executive power. Now I don't think we see the same kinds of checks. Congress doesn't seem to be bothered when the president does things like, for example, impound the use of federal funds that Congress has allocated for the use of specific federal agencies.

Simone Leeper: Congress allocates money to specific agencies for specific missions, but if the president directs his agencies not to spend appropriated funds, it effectively nullifies Congress.

Melissa Murray: Congress doesn't seem to be entirely bothered when the president begins to dismantle federal agencies by withholding funding to them.

Simone Leeper: Again, Professor Murray.

Melissa Murray: These are agencies that Congress created, and stands to reason that if Congress created them, only Congress really has the authority to begin to dismantle them and that the president doing so effectively by withholding funds, strangling the agency. That can't work either, but yet Congress hasn't really done much to jealously guard what it created.

We also see the courts not really doing much on the shadow docket. The Supreme Court has effectively allowed the president to continue doing some of these things, even though the shadow docket is meant to be a procedural case management docket where you maintain the status quo while litigation continues in the lower federal courts.

Simone Leeper: The shadow docket is essentially a fast track to a temporary Supreme Court ruling that arrives unsigned without the benefit of public deliberation. It's meant to be used in cases of emergencies.

The government sought relief on the shadow docket only eight times between 2001 and 2017. Under Trump's first administration, the government sought it 41 times in four years, and in Trump's second administration, the government has sought it dozens of times more.

Led by Chief Justice John Roberts, the Supreme Court has sided with this Trump administration 80% of the time in these supposed emergency requests, which often stop a lower court's ruling from taking effect.

Michael Luttig: There is no explanation for the shadow docket except that the Supreme Court is showing its favor to Donald Trump and wanting for him to continue on all of these fronts.

Simone Leeper: Here again is Judge Luttig. For him, this topic is personal as well as professional. He was one time viewed as a possible nominee to the Supreme Court, and he knows John Roberts personally.

Michael Luttig: Last summer I was being interviewed by someone and they said, " Well, we understand that John Roberts and you are very close friends. What would you say to the Chief Justice if he were here with us today?" And I would just say, " He's presiding over the end of the rule of law in America."

Melissa Murray: John Roberts has pulled the biggest fast one on the American people of perhaps any Chief Justice, maybe since Roger Taney.

Simone Leeper: Melissa Murray again.

Melissa Murray: So at his confirmation in 2005, John Roberts insisted that he was just an umpire calling balls and strikes. And everyone likes to talk about that quote, which is honestly one of the most facile quotes I think I've ever heard. Yes, it's true. Umpires call balls and strike, but they also exercise judgment over what is the strike zone.

I think he definitely cares about maintaining the reputation of this court, but he, far from being an institutionalist, has written three of the court's opinions that have been the most corrosive to democratic institutions other than the court.

So he is the author of 2013 Shelby County v. Holder, which invalidated in effect the preclearance regime of the Voting Rights Act of 1965. He is the author of 2019's Rucho v. Common Cause, which blessed partisan gerrymandering and effectively allowed states to continue doing it without any enforcement or oversight from federal courts. And he is of course the author in 2024 of Trump v. United States, which was a sweeping decision that articulated a breathtakingly broad principle of presidential immunity, one that offered absolute immunity for presidential actions that are specifically enumerated in the Constitution.

That was perhaps not problematic, but where the real issue is, is that it also offers a presumption of immunity for other official actions. And what counts as an official action is, again, a matter of subjective determination for the president, for the courts, for people reviewing these decisions.

Michael Luttig: Trump v. United States destroyed a critical part of the structural constitution by essentially holding that the President of the United States is above the law.

Simone Leeper: Judge Luttig.

Michael Luttig: Could he be prosecuted for his grave offenses on January 6th, 2021? There was not an argument in this world that he was not prosecutable for those grave offenses until the Supreme Court decided that headed the Office of Legal Counsel for two years back in '91 where that's the bread and butter, executive power. I knew then, and I know today, that for 250 years until Trump v. United States, not one Supreme Court decision, lower court federal decision, any state court decision, any constitutional scholar had even suggested that the President of the United States might not be accountable for a crime against the Constitution in the United States.

The last Supreme Court authority on the question was United States v. Nixon, in which the Supreme Court unanimously held that Richard Nixon was of course subject to the criminal laws of the United States. Out of whole cloth, this Supreme Court, and of course, without citing a single authority, even arguably on point, held that this president, Donald Trump, could not be prosecuted for any criminal offense against the United States of America.

Simone Leeper: That decision, Trump v. United States, I think has midwifed a lot of the excesses we've seen in the second Trump administration, and John Roberts is kind of the Victor Frankenstein of this moment wondering what has he wrought here and we're all watching it happen.

This current moment has a complex lineage you can trace back to a number of individuals. Donald Trump, certainly. John Roberts, emphatically. Every member of the House and Senate who has quietly forfeited their constitutional powers, of course. But looking across the long bending arc of American history has only given Judge Luttig a greater appreciation for the architecture of our democracy.

Michael Luttig: If there is a silver lining, it is that the 47th President of the United States has proven the wisdom of the Constitution of the United States and the separation of powers as a form of government in a democracy under law. There is not a person alive who can look at what's happened and not say to themselves, " My God, this Constitution is brilliant beyond words." The Constitution has not failed us. It's the people who were charged with administering that Constitution, the three branches of our government, that have failed.

Simone Leeper: With the concept of separation of powers now firmly in mind, you can probably appreciate why Rebecca Slaughter's lawsuit seeking to stop her firing from her appointed position at the Federal Trade Commission could become such a bombshell. Officials and independent agencies such as the FTC have long enjoyed protections. A 1935 Supreme Court decision, Humphrey's Executor v. US held that Congress could protect these government officials from at- will termination by the president, FDR at that time.

The ruling set a standard. An officer does not need to prove their loyalty to the president in order to serve the American people. By ruling in Trump's favor in the Slaughter case of 2026, six Supreme Court justices have flipped that precedent. For the first time in living memory, Trump and future presidents apparently can purge the heads of agencies and replace them with political loyalists, even in agencies that Congress designed to be insulated from the president. Such agencies include the Federal Trade Commission, the Securities and Exchange Commission, the Consumer Financial Protection Bureau, and the Federal Reserve.

The decision has also led the Trump administration to claim the power to fire the leaders of the Election Assistance Commission, which directly regulates elections. This ruling advances the Trump administration's effort to create a so- called unitary executive, the controversial legal philosophy that says the Constitution demands that the president have total control over all agencies, including those specifically designed by Congress to be independent.

This undemocratic theory is at the heart of Trump's attempt to centralize power and erode the checks and balances that ensure our government serves the public rather than the president.

The Trump administration argued that a unitary executive with power over independent agencies advances democratic accountability, but the constitution clearly does not provide him with such unchecked control.

Brent Ferguson: What the court has said is essentially independent agencies can no longer be independent regardless of what Congress says, and that means that the president will have the power to at least fire the heads of commissions when they do things that he doesn't like, and that means the law will almost certainly be enforced in a way that supports the president and his political ideology.

Simone Leeper: This is Brent Ferguson. He's a colleague of mine at Campaign Legal Center where he works as the senior director of strategic litigation. He focuses on a rule of law work at CLC, and he's involved in litigation that challenges restrictive voting laws across the country.

Brent Ferguson: What CLC is especially concerned about is the elections agencies created by Congress, and that's the Federal Election Commission or the FEC and the Election Assistance Commission or the EAC. And both of those were created as independent agencies by Congress that have bipartisan structures and they're evenly split between Republicans and Democrats. And that means that when they're doing their duties, which has to do with regulating money in politics, like how Super PACs can spend money and how people register to vote, they have to do that on a bipartisan basis, and that prevents one party from gaining power when a president of that party is in office.

And so CLC filed a brief in the Slaughter case arguing that regardless of what the court says about independent agencies, and we know now that it said that most agencies aren't independent, the FEC and EAC should be treated differently because they are set up specifically to maintain fairness in federal elections.

Simone Leeper: And for that reason, Campaign Legal Center will continue to push back against any efforts by the Trump administration to use the Slaughter case as a pretext for controlling the FEC and the EAC.

Brent Ferguson: If the president has power to control what elections agencies do, then that creates a big threat to the rule of law and the fairness of our elections. I'll give one example there. The president in March of 2025 issued an executive order trying to require the Election Assistance Commission to say that anyone registering to vote using the federal voter registration form has to provide proof of citizenship.

Simone Leeper: This is despite neither federal law nor any part of the constitution giving the president the power to regulate our elections. The executive order would've required voters to jump through burdensome and unnecessary hoops when registering to vote by requiring them to provide additional documentation proving their citizenship, making it harder for millions of Americans to exercise the freedom to vote and suppressing voter turnout for a perceived political advantage for the president's party.

Brent Ferguson: CLC went to court when the president issued that order and got it blocked in court. The court said that under the Constitution, states and Congress have the power to regulate elections and not the president. If we allowed the president to control the Election Assistance Commission and control what people need to register to vote, creates a big problem for our democracy and a partisan imbalance. And now given the ruling in Slaughter, we have to fight to ensure that those constitutional principles are still upheld.

Simone Leeper: Unfortunately, that fight may be a challenging one.

In July of 2026, President Trump fired two Democratic members of the EAC. The agency's remaining commissioner, a Republican, resigned the same day, reportedly at the President's request. This action leaves the EAC with no leadership just months before the midterm elections. But as Brent pointed out, the Constitution gives states the authority and responsibility of running our elections, and state election officials are perfectly capable of doing their jobs regardless of the status of EAC leadership.

In the past, the Supreme Court has explained firmly that it limits the President's powers for good reason. Melissa Murray recalls the 1952 case Youngstown Sheet & Tube Co v. Sawyer. In its ruling, the court prevented then President Harry S. Truman from seizing control of an Ohio steel plant where workers were threatening a strike. That disruption would have slowed the production of munitions for the Korean War. Naturally, Truman had argued that this was an emergency.

Melissa Murray: The action is immediately challenged by the steel mills. The seizure of private property by the government is unprecedented and they are right. The Supreme Court steps in and says, " Yes, Congress has not authorized this in any way. The president cannot unilaterally do this. For the president to unilaterally do this would be an imposition on Congress's authority, a violation of the separation of powers."

There are a number of different opinions in the Youngstown case. Justice Douglas, who was someone who was not, I think, hostile to the executive branch. He'd worked in the executive branch. He talks in the concurrence about why we have divided government and why it's divided in the way that it is. And he talks about Congress is by design slow moving and sclerotic. It is a multi- member body that is massive and it cannot turn on a dime.

The president doesn't have those kinds of constraints. The president can be nimble and agile and move quickly. And in some cases, we should applaud that kind of nimbleness because it is necessary in certain circumstances, but we always have to be wary of it. And he talks about an executive that is so nimble and so agile that it begins to encroach upon the powers of the slow moving sclerotic Congress. And he says, " We've seen this before."

And he doesn't say it explicitly, but in the 1950s with World War II in the rear view mirror, everyone knows what he is talking about. He's talking about Hitler, he's talking about Mussolini, individuals who as executives basically laid waste to the legislative branch, took their authority, whether it was the rights dog or something else, and they ultimately became dictators. That's the threat that Douglas is warning of. Yes, you want a nimble agile executive, but there is always the concern that a too nimble, too agile executive is on its way to becoming an autocrat.

Simone Leeper: So in order to maintain reasonable limits of power on the American presidency, it's clear that the other two branches of government need to step up to provide the necessary checks and balances.

Brent Ferguson: I would also like to see Congress do its duty, and so that means holding the president accountable when the executive has engaged in overreach. That means investigating.

Simone Leeper: Again, my colleague Brent Ferguson of Campaign Legal Center.

Brent Ferguson: That means passing laws that make clear Congress' position and that prevent some of the executive actions that the president has taken.

When we see illegal executive actions happen, we are often in court very soon after that. And because we focus so much on elections and democracy, we have fought back against the president's executive orders involving voting and elections, and that's where we've gotten some of our key victories.

We're just a couple of months away from a really key federal election, and that's what CLC is spending almost all of its effort and time on right now. We are across the country and states trying to help people who have questions about voting, but also making sure that this administration is not encroaching on the elections power that the states have. And that means sounding the alarm if federal troops are called in to the polls. That means being sure that votes are counted fairly, that it's done in an open and transparent manner, and that once elections are certified and the count is done fairly, making sure that transition of power in Congress goes smoothly as it has for centuries.

Melissa Murray: I think the mechanisms of enforcing democracy are fraying, but what hasn't frayed is this ability for all of us to come together.

Simone Leeper: Once again, Melissa Murray.

Melissa Murray: We saw protests. All of these people across the country came together to say, " What is happening is un- American. This isn't patriotism. This isn't American. This is not what we were created to do."

I focus a lot on the Supreme Court, and I can say unequivocally, I know those justices care about what the people think. They have to. The Supreme Court is unlike Congress. It doesn't have the power of the purse. It's unlike the president. It doesn't have the power of the sword. All the court has is the expectation from the people that what the court is doing is legitimate. And when the people stop thinking the court is legitimate, when they start questioning it, that's when the court loses everything. So they are very attuned to what the people think.

Simone Leeper: Melissa and Brent are keying in on a final piece of separation of powers that we need to focus on before a big election.

All government authority ultimately is granted by the American people. We hold power and we shape power through our votes, through our speech, and through our actions. No matter how submissive the Congress, no matter how overreaching the president, no matter how political the court.

Melissa Murray: The first three words in the constitution are we the people, and we've got to remember that. This idea of limited government preventing tyranny, promoting democracy, that's the core of this. These framers had faith in the ability of the people to educate themselves, to be discerning, to be skeptical, and to get in the game. And I think we're at the moment where it's clutch time. If we think democracy is something worth doing, if we think that government of, for and by the people is something worth preserving, then we need to be the kind of governed people that they imagined.

Simone Leeper: Next time on Democracy Decoded, we'll take a look at the Department of Justice and examine the troubling turmoil within, including examples of blatant political weaponization and the resignation of career officials amidst pressure from the Trump administration.

This season of Democracy Decoded is produced by JAR Podcast Solutions for Campaign Legal Center. Campaign Legal Center is a nonpartisan legal organization dedicated to solving the wide range of challenges facing American democracy. For a quarter- century, Campaign Legal Center has been leading a campaign for democracy in courtrooms and capitals across the country, a campaign for voting rights and fair representation, a campaign to hold our government and elected officials accountable, a campaign to limit the corrosive influence of big money in our elections, and a campaign for the rule of law so every American can participate meaningfully in the democratic process.

Today, the threats to our democracy go beyond anything we could have imagined when we first opened our doors. During this pivotal time for our democracy, Campaign Legal Center needs support to continue to fight on behalf of the American people. Your tax- deductible donation directly funds our efforts to do just that. If you would like to support our work, visit campaignlegal.org and click on the Donate button.

Special thanks to our guests, Melissa Murray, Judge Michael Luttig, and Brent Ferguson. I'm your host, Simone Leeper. Thanks so much for listening.

If you've learned something new today, find us on your podcast platform of choice and hit Subscribe. You'll get new updates as we release new episodes.

Leading this production for Campaign Legal Center are Casey Atkins, multimedia manager, and Madeleine Greenberg, communications associate. This podcast was produced by Sam Eifling, editing and mixing by Luke Batiot.

Democracy Decoded is a member of the Democracy Group, a network of podcasts dedicated to engaging in civil discourse, inspiring civic engagement, and exploring the future of our democracy. You can learn more at democracygroup.org.