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Separation of Powers

Time to End the Filibuster?

Putting aside Trump’s typical garbled formulations—and that his remarks were obviously prompted by his frustration with the lack of success in enacting promised legislation—doesn’t Trump have a point about the problematic centrality of the filibuster in today’s Senate? With few exceptions, very little can be legislatively accomplished unless 60 votes can be mustered there even though nothing in the Constitution requires this super-majority for passing ordinary legislation or appropriation bills. The constitutional system of separated powers and checks and balances is no doubt a complicated one. But it was also designed to allow a representative and refined majority to have its say in the end.

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Event (May 8): Is Congress Broken?

The US Congress is regularly described as inefficient, ineffective, and polarized. How accurate is that description? Most reforms have sought to make Congress more open, responsive, and democratic. But have those reforms actually made Congress better at creating a governing consensus, overseeing the executive branch, and engaging in deliberation? What reforms might make Congress more effective, and what should be the standard for judging those reforms? Does the original constitutional design offer a better model for judging Congress today?

Please join AEI as a panel of scholars and experts discuss the state of Congress today and possible paths to reform.

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Imperial Branches

At times, the dispute between the Trump administration and the federal courts over the president’s executive order on immigration feels more like a WWE SmackDown than a considered statutory and constitutional dispute. Partisan critics of both branches leave one to imagine a sign over the entrance to Constitution Hall, reading “Tonight’s Main Match: ‘The Imperial Presidency’ versus ‘The Imperial Judiciary.’ ”

Such a dispute should not come as a surprise. Both branches have for some time been advancing their authority and reach, stretching respectively the meaning of executive and judicial power. It also shouldn’t come as a surprise since both the judicial and executive powers involve the interpretation and application of the laws—a fact that led John Locke, the political philosopher who first gave us the theory of modern separation of powers, to conflate the judicial power with the executive.

Indeed, if the Federalist Papers’ analysis is correct—that maintaining the constitutional order requires one branch’s ambitions to check another’s—then the occasional spat is to be expected and may sometimes be healthy. The push and pull means that each branch should be relatively clear about what its authorities are and be willing to argue in their defense. For the public, it can be a useful civic reminder that we do live in a constitutional republic.

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