Deep Dive with Shawn C. Fettig

The Unchecked Presidency: When One Branch Rules Them All (w/ Professor Daniel Farber)

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Could the American system of checks and balances crumble under a second Trump presidency? In this episode Berkeley Law Professor Daniel Farber, co-director of the Edley Center on Law and Democracy, joins the pod to discuss the complexities of executive authority in the U.S. government. From emergency powers initially crafted for crisis management to the potential overreach encouraged by figures such as Mitch McConnell and Mike Johnson, we explore how these dynamics could fundamentally alter the balance of power established by the Constitution. 

We examine the constitutional framework intended to keep presidential power in check, focusing on the evolving roles of Congress and the judiciary. And, we focus on how party loyalty often clashes with institutional accountability, and how mechanisms like congressional funding and public opinion serve as crucial, yet sometimes faltering, counterbalances to executive overreach. Through critical historical examples and current events, we examine the pressing need for strengthening these checks and balances to prevent authoritarian tendencies.

In this episode, we also scrutinize the strategies presidents might employ to extend their influence through appointments and executive orders, challenging the Senate's advisory role. The ease with which democratic norms can be undermined by unchecked presidential actions raises significant concerns about the erosion of civil rights and the potential rise of authoritarianism. And, how the system might respond, and even fail, under the pressures of a President Trump determined to consolidate power. 

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Professor Farber:

It's not a real blank check necessarily. One example that I think is significant if you look at COVID and look at some of the emergency actions that Biden took or at least they were billed as emergency actions to deal with COVID, and the Supreme Court was really not all that sympathetic right and has tossed out some of the COVID-related related actions, without doubting, of course, that COVID was, you know, a kind of public health emergency, At least there's always been worry that the existence of these emergency powers could be abused by a president who was looking for ways to aggrandize power. I think, and I do think, we need to worry about that.

Shawn:

Welcome to Deep Dive with me, Se C Fettig. In all of Donald Trump's presidential campaigns, he has stated that he alone can solve the country's problems. While president, he chafed at guardrails and institutional checks that limited his ability to do pretty much whatever he wanted, issued executive orders specifically to do an end, run around Congress and questioned the legitimacy of judicial decisions with which he disagreed. Running for president this year, he said he'd like to be a dictator for at least the first day of his presidency, and now, as president-elect, he's mused about running for a third term and is challenging the Senate to allow for recess appointments for his clown car of nominees, circumventing the Senate's advice and consent role in the confirmation process. In this episode, we're examining a trend that's reshaping the balance of power in our government and pushing us closer to a constitutional crisis the expansion of executive power. When the framers of the Constitution crafted our system of checks and balances, they envisioned a strong but constrained presidency, balanced by an active Congress and an independent judiciary, but over the past few decades, that vision has become blurred Increasingly.

Shawn:

Congress has chosen to take a back seat, effectively empowering the executive branch to take unilateral action, and the shift is not only reshaping the role of the presidency, but also undermining the very foundations of our democratic system. In recent years, the dynamic has become starkly evident, as Senate minority leader Mitch McConnell has made obstructionism a central strategy, prioritizing partisan gridlock over governance Instead of legislating or engaging in bipartisan compromise, McConnell has often opted to stall or block or delay, especially when it comes to key issues like immigration, health care and voting rights. When Congress refuses to act, it leaves a power vacuum that the executive branch inevitably fills, and the result? Presidents increasingly rely on executive orders and directives to push their agendas forward, a trend that's accelerated as lawmakers like McConnell choose political posturing over policymaking. We're also seeing this play out in the House, with Speaker Mike Johnson, when asked about the contentious issue of border security during the presidential campaign this year, suggesting that if President Biden truly wanted to pass new border restrictions, he should just use his executive authority to do so.

Shawn:

This is the leader of the House of Representatives, the branch of government responsible for legislating essentially telling the president to bypass Congress altogether. It's an astounding admission of Congress's abdication of responsibility and a clear example of how legislative inaction is feeding the expansion of executive power. This creeping expansion doesn't come without consequences, when the presidency grows more powerful, while Congress remains passive, we risk upending the balance of power our system relies on. It sets a dangerous precedent where future presidents could wield authority unchecked, acting unilaterally on critical policy issues without oversight. And it's precisely this trend that has authoritarian implications, especially when a leader like Donald Trump comes into the picture, effectively arguing for a presidency that stands above the law.

Shawn:

My guest today is Daniel Farber, professor of law at Berkeley, co-director of the Edley Center on Law and Democracy, former law clerk for US Supreme Court Justice John Paul Stevens and author of the book Contested Ground how to Understand the Limits on Presidential Power. We discuss why Congress has increasingly chosen to pass the buck, how this has emboldened the executive branch, the real-world dangers of a presidency unchecked by Congress, and what this trend could mean for the future of American democracy in Trump's second term. All right, if you like this episode, or any episode, please give it a like, share and follow on your favorite podcast platform and or subscribe to the podcast on YouTube. And, as always, if you have any thoughts, questions or comments, please feel free to email me at deepdivewithshawn at gmailcom. Let's do a deep dive, Professor Farber.

Professor Farber:

Thanks for being here. How are you Pretty good, thank you.

Shawn:

So our constitutional system of federal government was designed to divide power between our institutions an executive, a legislature, a judiciary and they could both assist and check each other. But the intent was that no one branch would be able to amass too much power. But this system doesn't seem to be working too well. Lately. The legislative branch seems to be willingly taking a passive role, abdicating its authority to the executive, at least in some circumstances. And some examples that come to mind are in the past couple of decades, mitch McConnell, when in the minority, perfected the art of obstruction, stopping the Senate from doing anything.

Shawn:

And in this past congressional term, republicans in the House effectively argued that if the president wanted to get anything done, he'd need to do it through executive action. And then I suppose Trump in his first term leaned into, you know, power of the executive to bypass the other institutions to achieve goals, and this isn't just limited to the Republican Party. But those are some top of mind, more recent examples that I can think of. But it's not entirely clear to me where boundaries on the executive are, and with Trump heading into his second term, I guess I figure now might be a good time to get some understanding on that. So like, how far can this go? So I'm glad to have you here to discuss this. Glad to be here. Can you explain the landscape of presidential power, how it's constitutionally constructed?

Professor Farber:

how it's evolved over time, how you might characterize it now Sure, I'll try.

Professor Farber:

That's, you know a couple hundred years of history, but I'll try not to get bogged down. The Constitution has a lot of detail about what Congress can do and what and how they do it, but much less detail about the executive branch. It says that the executive power is vested in the president, but it doesn't define executive power. It then has some specifics about what the president can do. Probably the most important is the commander-in-chief clause, making the president head of the armed forces. There are a few other things, but mostly it's pretty open-ended. We know that they wanted the president to be stronger than some of the state governors that they had after the Revolutionary War. They had after the Revolutionary War, but other than that you can find really almost anything you want to looking back in the history and in trying to figure out what their intentions were.

Professor Farber:

George Washington came in. He sort of got the presidency off to a strong start and there have been ups and downs since then in terms of the strength of the presidency. Lincoln was a very strong president, but then there were 50 years of pretty weak presidents after him. But I'd say, from I don't know the beginning of the 20th century on at least, there has been a really long-term expansion in presidential power, in presidential power, with the president now, I think, being much more powerful than in the early years of the country, for sure, or even like a century ago. There are ups and downs. Presidents gain a lot of power during wars or crises like the Great Depression. Then afterwards they may sort of give back some ground. But overall, you know, it's a story of expanded power. So I think.

Shawn:

Over time, you know, congress and I suppose the judiciary and the general public itself, has had more or less interest in presidential power, and, like you said, though, it's only expanded, especially since the 20th century, and such that we have, you know, an incredibly powerful president that maybe there's no corollary prior to. And here we are. You know, it's like it's slowly boiling a frog, in a sense, that we just kind of get used to it, but I guess I wonder, to your mind, if there is a point at which you think that it would start to become somewhat threatening either to the Constitution, to democracy, or if alarm bells would go off for you at any point in the expansion of the executive. What would that look like, and what would have to happen for you to be uncomfortable?

Professor Farber:

Well, we have had some of that in the past. I think the Nixon presidency is kind of the classic example. You know, I think getting things done that's created kind of a power vacuum. But I guess what I would start to get really worried would be when presidents claim inherent power to do things, that is, they say the Constitution just gives them the power to act without any authority from Congress, or else they use emergency powers that Congress has passed in situations where there doesn't seem to be an emergency at all, but they're using it just to expand their leverage. And then I guess most worrisome is when the president starts crossing other constitutional lines, you know, authorizing violations of the Constitution's requirement that you get a warrant before doing searches or arresting people or going after media critics, and disregarding the First Amendment. So you have a really concrete threat to civil liberties.

Shawn:

So I think one of the things that we all assume is that if the president crosses some type of a line, that there is something to you know, hold him eventually probably her accountable for doing so.

Shawn:

But I don't think that actually does exist and I think one of the things that one of the checks on that might be. You know, and this is something that's, I think, particularly interesting to me, maybe actually frightening, but that the framers designed our systems that institutions would be composed of individuals that were fiercely protective of their institution and its authority. But we've really become a system of parties, and individuals within the institutions, at least contemporarily, seem to place that loyalty higher than the institution, meaning that, you know, a significant check on abuse or even authoritarianism or excess of a branch seems to be fading, and I think that's what we assume is, if the president were to overstep that, the party, either in Congress or the Supreme Court itself, would hold the president accountable. But it feels like they coalesce, or are coalescing maybe, both parties around, party over institution, and I'm wondering what the consequences of that is in this moment. Do you think?

Professor Farber:

Yes, I do think it's pretty worrisome.

Professor Farber:

It's hard to say with the Supreme Court. It's true that there's been a lot of coalescing, partly, I think, along ideological lines Hard to tell how much actual party loyalty is a factor. But the Supreme Court, even if it decides to step in, needs to have the backing of other parts of the government or in the public in order to be effective. Otherwise, you know, the Supreme Court has like a marshal who calls the court into session but they're not in a position to actually force the president to do anything. Either the president has to feel that sort of obliged to do it or there has to be enough backup in other parts of society so that the president really has to go along. So I do think it's a mistake to think that just because Trump appointed several of the justices and because it's like six Republicans versus three Democrats on the court, I don't really think the court is going to be a complete pushover going forward and I don't think it would have been if the rules were reversed and it was a Democratic president and six Democratic justices.

Professor Farber:

But, I do think that there are limits to what we can expect from the court, and certainly the court will be more sympathetic to Trump than they would be in other situations. When you talk about the sort of loss of interest in the institutional role, I do feel that that's really strong in Congress. I think in the House of Representatives I'm not sure that there's I don't know who's left who really cares about the institutional role. I think people are more worried about winning the next primary, about, you know, not crossing the party and about sort of maintaining their own base of support, rather than the institution itself. Maybe there's still some people in the Senate who are a little more institutionally minded. But again, I think you're right that party loyalty can go a long way to overcoming those things. I really think it would not be likely.

Professor Farber:

I hate to make predictions because I don't have a great record of political predictions or sometimes predictions even about the courts, but I would think that Congress would only really start playing a more effective role, especially a Congress which is likely to have Republican majorities, if there were other problems that the Trump administration ran into that really dented Trump's popularity and made Republicans feel that it was kind of safe to go their own way. So you know, if, for example, some of his policies were to set off another round of inflation even though it has nothing to do with the issues we're talking about here but it could, politically, give some members even if it's a party a little breathing room in order and thinking about possibly operating as a check. The fundamental point you made, though, that that the framers were assuming loyalty to the institution and that parties have really taken up a lot of that loyalty to themselves, I think is absolutely right, and I think there's some scholarship supporting that.

Shawn:

To the point that Republicans themselves might begin to push back. I have been wondering if, in the last two years of this term, we might start to see more of that, given that Trump ostensibly can't run again.

Professor Farber:

I think that's right. I think we could see people pushing back. It partly depends, I think, on well, I think on several factors. I mean one is some of the people in the Senate are certainly going to be seeing themselves as presidential candidates and trying to figure out how to position themselves in that regard. But I think again, we did see, for example, some Republicans in the House voting in favor of impeachment, but they pretty much got slaughtered in primaries.

Professor Farber:

You know, I think some people are willing to take that sort of bargain right that you know, doing what they think is the right thing, regardless of the consequences. But I think it would probably what would make the most difference, I think would be if it looked like Trump's grip on the party base was weakening due to, you know, whatever went on in office, and people felt like they maybe could go out on a limb without necessarily having it sawn off behind them. But of course, the other thing about the last two years is Democrats might do a lot better in the off-year election than they did this time around, and so you could have a Democratic Congress where the institutional needs and the party needs might, might, coalesce a little bit more.

Shawn:

So we've talked about the party which, as it relates to its constitutional role, is pretty informal, but there are formal constitutional checks and balances that are intended to constrain all of the branches right but specific to the president. Maybe this is even asked and answered somewhat inherent in our conversation thus far, but maybe, to put a fine point on it, what actual constitutional checks and balances do currently exist that could constrain a president's worst excesses or overreach?

Professor Farber:

Yeah, I think there are some, and they could operate for a variety of reasons, not all of them necessarily because of what people think about some fundamental constitutional principle. One of the most basic checks on the executive branch is that Congress has to authorize funding for really anything that the president wants to do. Sometimes the funding is kind of open-ended, sometimes there's some room in the law for the president to move funds. But basically, if the president wants to do anything that involves spending a lot of money, they're going to need to get congressional support. And, as we know, although getting Congress to do something affirmative is really hard these days, for the same reason it's not so hard to block things. And so, just you know, if the president, let's say, for something like his deportation plan, just you know, if the president, let's say, for something like his deportation plan, went to Congress and asked for 20 or 30 billion dollars, there's a real possibility that that might not happen, even if, in the abstract, they all support him. You know, whenever you start talking about money, you start getting into all these things about where is it going to come from and what else are you going to cut instead, and things can really get very sticky. So I think the spending power is really important. That's basically how Congress forced the end of the Vietnam War by cutting off funding to continue the war.

Professor Farber:

There are other things where I think the president needs authorization from Congress for things, and I think everybody, including some of the Trump people, acknowledges that. They may think that there's a lot they can do under current law that I might disagree with, but I think they do understand that at some point they would need congressional authorization for some of the really big changes that they would like to make. And again, there are a lot of what the political scientists call veto points where it's possible to block that kind of legislation. So I think that's one thing. Investigations are going to be effective if the Republicans end up controlling the House and the Senate, which now seems pretty likely, because that's a case where party is just an overwhelming factor. The parties just do not really investigate presidents of the same party.

Professor Farber:

So I don't think that check is going to be very operative. I think we're going to see a ton of litigation and that brings us back to the courts and I do think that the courts are not going to be completely acquiescent. And that's a check. So we do have some of those institutional checks, of those institutional checks, but to some extent the system has really relied on norms and sort of understandings of the limits of what presidents can appropriately do and some sense that presidents have some sense of self-restraint.

Professor Farber:

Not clear to me any of that's going to be operative. We saw some of that in the first Trump administration, but at least I think there's a lot of worry that there won't be people within the executive branch to make those arguments anymore. Trump may be angrier and more willing to be aggressive even than he was in the first term. So if I were a political scientist, I would think this was really going to be an interesting experiment, because we're really going to test the limits of the system. Unfortunately, this isn't a case where we can just sort of take an academic interest, since all of us in the country and really pretty much everywhere in the world are going to be affected by how this all plays out.

Shawn:

We've talked about parties. We've talked about more formal checks built into the Constitution, notwithstanding the will that you know individuals in these positions have to wield them. But so I don't want to paint you into a corner, but I guess, were that all to fail as guardrails, and thinking about things like the public and the opposition party, but like what other? To your mind, what other avenues remain to check the president?

Professor Farber:

I think it does ultimately rely on the public. I think it partly also relies on the extent to which people are willing to follow the president all the way down, whatever road he's following. We tend to think that the president gives orders and people follow them lower down in the hierarchy, but there may be some point at which they just start dragging their feet and refusing to do so. And again, I think that's much more likely if they feel that there's public opinion to back them up. I think if a majority of the people in the country support whatever the president's doing and aren't worried about the abuse of power, it just becomes a lot harder for the system. You know, when the formal checks run out, it really is what the public thinks. That, I think, is going to be decisive.

Shawn:

Earlier you mentioned emergency powers and I want to kind of swing back to that because I don't know that it's entirely clear what emergency powers are and what limits exist on them. But you know Trump has floated in past, both in his first term but also running for his second. You know he's floated the idea of using emergency powers to achieve some of his goals, especially if Congress were to play some type of hindering role or an obstructive role. But can you describe for us what emergency powers are, when they can be used, in which ways they can be used and how they can be obstructed?

Professor Farber:

Yeah, I think there are two sources of emergency powers. There is at least some sense that the president has some constitutional emergency powers that could arise. Powers that could arise that seems pretty limited, though, based on the Supreme Court precedents, at least when you're talking about the domestic situation Outside of the country. Internationally, the president has a ton of leeway. There really aren't that many checks and balances on that. But internally, as a practical matter to exercise emergency powers, the president has to rely on some statutes dealing with emergencies. There's something called the National Emergencies Act under which the president has the power to declare a national emergency, and there's little or no check on when he can do that right. The courts have never reviewed a presidential finding that there's a national emergency, but by itself that doesn't really do anything.

Professor Farber:

What a declaration of a national emergency does is trigger, I don't know, something like 100, 120 other laws, each of which has some specific power that applies in a national emergency, and so if you want to find out what the president can do, you have to kind of go and look at all those laws and see what's there that the president can take advantage of. It's a really diverse list of things, some of which seem very limited. Some of them are things like being able to assign new duties to non-commissioned officers that they wouldn't normally be able to perform or something like that, very sort of inside the beltway, kind of inside baseball stuff. Some of them are potentially quite broad. There are provisions allowing the president to take over communications, which I don't think has ever been used. I think that was kind of aimed at nuclear war, but it's still sitting there. There are a bunch of other things. And then there are other sort of emergency actions that a president might take under other laws, like calling out the National Guard, which I know that the White House people have also talked about.

Professor Farber:

One important point is when you're talking about those specific statutes. Although the courts have not reviewed the president's decision that there is a national emergency, they have reviewed whether specific actions taken to deal with the national emergency are legal. So it's not a real blank check necessarily. One example that I think is significant If you look at COVID and look at some of the emergency actions that Biden took or at least they were billed as emergency actions to deal with COVID, and the Supreme Court was really not all that sympathetic right and has tossed out some of the COVID-related actions, without doubting, of course, that COVID was a kind of public health emergency. So I think it's not really unchecked power, but the boundaries are unclear and at least there's always been worry that the existence of these emergency powers could be abused by a president who was looking for ways to aggrandize power. I think, and I do think, we need to worry about that.

Shawn:

So I think it's probably human nature, at least in our current political climate, to be more accepting of norm breaking, orbending behaviors and rhetoric etc. If we're winning, if it's our candidate or our institution that's doing it, or our party. So you know. I mean, to some degree it's understandable that Republicans, or you know, the GOP as it's constructed today, individual members would be less bothered by less constrained executive in Donald Trump, given they align with his or ostensibly align with his goals, right, their preferences. But there are implications so absent even the current moment and this moment with Trump, or the potential for what executive power looks like under a second Trump presidency Absent that there are implications for just an unrestrained executive power in a democracy. And so I guess I'm wondering if you've given thought to what specific types of rights or freedoms or impacts on civil life in the United States that could come from an unrestrained executive.

Professor Farber:

Yeah, I have given some thought to that. I'm afraid, or I'm afraid I have had to. One thing that I'm really concerned about is the use of the Justice Department and other parts of the government to go after dissidents and critics of the president. It's sort of most obvious if the president decided to direct the Justice Department to, you know, investigate and prosecute. You know some list of people who had gotten in the president's way. But there are other things too. Nixon and probably some earlier presidents had critics audited by the IRS. Tv stations could, you know, get in trouble over their licenses. There are just a lot of ways that if federal government decided, at the order of the president, to go after somebody, they could make life really difficult and maybe even worse than that in terms of criminal prosecutions. And so I worry about that.

Professor Farber:

I worry about the sort of fear factor that might go with that, about heads of companies refusing to criticize the president because they're afraid of losing government contracts and so on and so forth. So I think there's a real potential for squashing dissent that we'd have to worry about. I think there's also just in general, putting aside these sort of dramatic things just a real potential for doing ill-considered kind of dumb things because there's nobody to you know sort of force deliberation. So you know things happen quickly and a lot of times they may turn out not to work at all or they might be counterproductive and really mess things up. One of the reasons we have all these checks and balances one of them is to prevent sort of abusive powers, but another one is just to make sure that we think things all the way through before acting. And I think we could see a lot of problems if we lose that and it's just somebody sitting at a desk at the Oval Office picking up the phone, and particularly any individuals that are seeking to succeed.

Shawn:

Mitch McConnell as the majority leader in the Senate and requiring that anyone seeking that position be supportive of the position that you don't necessarily need Senate approval to appoint. So this would be recess appointments. So they would be in support of recess appointments, circumventing Senate approval. So that's an important check that the Senate has on the presidency. Right is advice and consent. So I'm wondering if you could help explain how presidents can use the appointment approval process to expand their presidential power and then, as you know, I just outlined, as Trump might be doing, how they could circumvent Congress to install people that are not necessarily approved by Congress people that are not necessarily approved by Congress, right.

Professor Farber:

So the Constitution requires for sort of senior level people cabinet level at least, and maybe beyond that that the president actually nominate them and get Senate approval before they can take office. And that was designed, I think, as a check on the president to ensure that at least there would be competent and, you know, sort of honest people working in the government who would be part of the decision-making process. There are a couple of ways of getting around that requirement. One of them is the recess appointment which you mentioned, and that's actually in the Constitution. If Congress is recessed, then the president can make an appointment without having to go to the Senate. The appointment expires at the end of the congressional term, so it's not, you know you would have to go back, you know, after the next election or something, and then try to get it renewed. It's not quite as good as having the actual Senate confirmation.

Professor Farber:

Congress has been very negative about these under presidents of both parties for quite a while. The way they get around it is that they avoid actually a formal recess. So there will be like one person in the chair of the Speaker of the House or in the President Pro Tem chair in the Senate and maybe one person on the floor, and they will hold themselves out as continuing to operate. Therefore, no recess, no recess appointment. I don't know how successful Trump's going to be in getting them to change that, because that's a really important power for senators. It's not just that they get to oversee appointments, but they can use that for leverage on policy issues too, to get the president even a president of their own party to listen and respond to their concerns about policy matters or about things that affect their own state or something like that. So that'll be interesting to see.

Professor Farber:

Now, the other thing is that there's something called the Vacancies Reform Act that gives the president some power to fill positions temporarily until a permanent appointment is made, and one of the things that we saw I don't think it's limited to Trump, but Trump really pushed the boundaries on that in his first term to try to keep people in position, even though he couldn't get them through the Senate or he couldn't get replacements for a vacancy through the Senate. And if you kind of play your cards right, you can really string these temporary appointments along for quite a while, and that's another way of getting around the appointments power. There are limits to what you can do that way. It's not perfect, but it has, I think, eroded the Senate's power to approve or disapprove appointments, and that's another area where I think what would have been a check on presidential power has been weakened.

Shawn:

This is pure speculation, but I mentioned this because, at first blush, given the makeup of the Senate after this election, this would seem like something Trump wouldn't necessarily need to worry about right, especially considering party loyalty. They I believe the Republicans have 52 seats. So it makes me wonder, then, like what's going on? And I wonder if they're just trying to avoid potential chicanery by people like Murkowski or Collins, and maybe even McConnell, who doesn't seem to have particularly warm feelings for Trump right now, and this is just their way to ensure kind of proof of the process against defections.

Professor Farber:

I think they could well be part of it. I think another factor is just timing. It takes a long time to get these Senate approvals, especially once you get past the very top positions. First of all there has to be the appointee has to fill out this really intrusive and detailed like 100 question survey and provide all kinds of documents and get vetted by the FBI and all that stuff. And that's before it even goes to the Senate. Then it has to be considered by a Senate committee, maybe kind of a rubber stamp when the Senate and the president are from the same party. But again it still takes time.

Professor Farber:

And then you've got to find time on the Senate floor and that's a real constraint because even though you can't filibuster appointments anymore, you do have some time. You know there is like 10 hours or something to debate them. And you start adding that up for the thousands of positions or I don't know hundreds of positions that require Senate approval and again you could really slow things down. So if Trump wants to get everybody in place really quickly and he doesn't want anyone to be looking at them very hard in the process, then the recess appointments thing could be appealing. Now the other problem with that is, that the Congress is recessed, and so if he wants Congress to do anything, that's not going to happen either during those recesses. So I don't know. I think this will be a real test of whether the Senate and the Republican majority in the Senate are willing to kind of insist on their institutional prerogatives or whether they're really just willing to turn the keys to the kingdom over to Trump.

Shawn:

Does the state of presidential power kind of as it exists today, in this moment, and then the potential for increased stress on presidential bounds in a second Trump presidency, not to sound histrionic, but does it give you any concern about the state of American democracy? Or maybe a less leading way to ask that is do you have any concerns? Are you worried about anything? Do you have?

Professor Farber:

any concerns. Are you worried about anything? Well, as I mentioned when we were talking before the interview, yes, we just launched a new center here at Berkeley on law and democracy, and the reason we launched it is not just that it's an academically interesting subject. I'm really worried about this. I know a number of people are really worried about it. Of course, a lot of the people who are really worried about it are Democrats and liberals, but I also know people who are neither, and in some cases, quite conservative, who are extremely worried about the fate of democracy right now.

Professor Farber:

And what worries me the most of democracy right now, and what worries me the most, I think, are the surveys that show really significant numbers of people who say that it would be. You know that what we need is an authoritarian government, a strong leader who can get things done regardless of really of the law. And that's really frightening when you know, when you have a lot of people, you know you have a democratic society. But there are people who have just checked out in terms of supporting democracy. I don't know if we've had that before in the past, but it really provides a kind of nucleus that could be mobilized to in really destructive ways.

Shawn:

So I guess the flip side of this is not to leave everybody in despair. Do you have does anything? Give you hope?

Professor Farber:

Yeah, certainly Right. The reasons, you know, for the center was fear and concern, but also the hope that it is possible to do things and defend democracy right now. Not that we expect this one center to be like playing the central role, but, you know, adding a little bit to that. One thing that gives me hope is the American Republic. Our democratic experiment has survived for a long time under some very difficult circumstances, and yet we're still here.

Professor Farber:

I think institutions are weaker than they might have been in the past, but they're still important. And I think there are still a lot of people in this country the large majority of people in this country who still do believe in democracy and even if they like what the government is doing, at some point are going to start to worry about how it's getting there. And then the other thing, to be really candid, is that I think Trump's chaotic governance style might limit his ability to orchestrate a really systematic power grab. You know that may require a sort of more organized approach with more long-term planning than has. You know that he seems to be comfortable with.

Shawn:

Okay. Final question Are you ready for it? Okay, what's something interesting you've been reading, watching, listening to or doing lately, and it doesn't have to be related to this topic, but it can be.

Professor Farber:

You know I always hate these questions, that question because I'm an academic, I'm a grandparent, I'm not exactly on the cutting edge of you know exciting new things.

Shawn:

I'm here for not exciting these days, just so you know.

Professor Farber:

So one thing I've been doing is rereading a classic biography of Lincoln. I did some work on Lincoln and wrote a book about Lincoln on the Constitution a few years ago, and part of that is because of the appeal of Lincoln's character and his personality and his personality and I do find some solace in sort of reading about the tumultuous events of that day and reading about Lincoln as kind of a rock in the storm.

Shawn:

You know I'm hearing versions of this from a lot of people and I've said this on a few episodes prior, so forgive me, listeners, for saying it again, but I've, in my own way, been doing the same thing. I've been reading a lot of World War. I me listeners for saying it again, but I've, in my own way, been doing the same thing. I've been reading a lot of like World War One, world War Two, cold War stuff, and one is just a pure interest in that stuff, but the other is I think I'm taking a certain amount of solace and comfort in knowing that these horrible things happened and, for better or worse, they came to an end, and I like to think that the world is a little bit better as a result of how we responded to that. And makes me think that maybe you know there will be an end to all of this at some point and that you know there's a light at the end of the tunnel somewhere.

Professor Farber:

Well, let me say amen to that.

Shawn:

Professor Farber, thanks for the time and thanks for the conversation. Here's to brighter days To brighter days. While we may be prone to accept, justify, maybe even advocate for expansive executive power under a president we like, it's important to understand why the checks and balances built into our system are so crucial. The framers of the Constitution understood that power, when concentrated in one branch, could easily become corrupting. So they deliberately designed a government that would pit ambition against ambition, each branch holding the others accountable, to prevent any one person or institution from dominating the system. This isn't just political theory. It's the foundation of American democracy. It's what keeps our government from devolving into tyranny.

Shawn:

So today we discussed what could happen when that system breaks down, when Congress fails to check the president's power, when the courts are weakened, when oversight is bypassed and when the president is actively seeking total control. Imagine a situation in which the president becomes too powerful, making unilateral decisions on everything from national security to economic policy, without input from lawmakers, something Trump has promised. We could see sweeping executive orders that limit voting rights, dismantle environmental protections and reshape the judicial system to ensure loyalty over impartiality. In a system like this, dissent becomes risky, oversight is stifled and the balance of power tilts dangerously toward a single, unchecked leader.

Shawn:

A shift like this wouldn't just have implications for democracy. It would fundamentally change the nature of our government. The president would no longer be a leader accountable to the people, but a figure wielding near-absolute authority, free from the constraints of the Constitution. We'd move from a system of laws to a system of rule by decree or, in Trump's case, rule by feelings and tantrums, where democratic norms and institutions are easily bypassed or ignored altogether. This isn't a far-fetched scenario. We're dangerously close to that reality, and while you may not notice it or feel it today, or even be bothered by it, authoritarianism eventually comes for everyone. All right, check back next week for another episode of Deep Dive Chat. Soon, folks. Thank you, thank you.

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Shawn C. Fettig

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