← Truth in the Barrel
Truth in the Barrel
Devil's Cut | The Separation Of Powers
00:44:48
Amy is joined by lawyer and author Denis Fleming to examine the fragility of our nation’s legal guard rails and what can be done to protect them. Could our founding father’s even fathom an administration as destructive or a President as porcine as...
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Ryan Reynolds
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Dennis Fleming Jr.
See mintmobile.com out of all the principles that our nation was founded upon, many have been attacked by the current Trump administration, but perhaps none more viciously attacked than the separation of powers, dividing power amongst the co equal branches of government. Right, the legislative, judicial and executive used to not only be a way to differentiate ourselves from the monarchy we fought hard to be free from, but it was also supposed to be a safeguard and against ever going back to that in the future. Sadly, today we're living in a country where the legislative branch rarely if ever asserts its own authority and the judicial branch hands down rulings that grant the President even more power. So what are we to make of this assault on the separation of powers and is there anything we can do to stop it? To help us better understand all of this, we're joined by author and Louisville native Dennis Fleming Jr. Amongst his many accomplishments, Dennis has practiced law, served with the Kentucky General assembly as the General Counsel to the Economic Development Cabinet under two governors, was Chief of Staff to Congressman Ben Chandler from Kentucky's 6th congressional district, and is now a published author. His book is titled Thomas Jefferson and the Kentucky Constitution. Welcome to Truth in the Barrel. Dennis.
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Amy
Thank you. Appreciate it, Amy. Thanks for having me. And thanks for the interest in the book.
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Dennis Fleming Jr.
Yeah, well, it's really important. Quite relevant for today, I think. And we'll talk about your book sort of in the middle of the show here, Dennis. But I wanted to start out because your book talks a lot about American history, Kentucky's history, constitutional history. You're sort of an expert in this area. And there's a lot going on right now with regards to, you know, our Constitution. We have a president that's disregarding court orders, criticizing judges, dismissing agency heads of independent agencies. We have a Supreme Court that has granted presidential immunity from criminal prosecution. The current president talks almost weekly about jailing his political rivals in some way, shape or form. So there's a lot going on. But I want to start out with the historical perspective because this is what you're so good at prior to this current administration. When else have we seen the separation of powers significantly challenged in America this way?
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Amy
Well, I tell you what, it's really important to realize how critical these notions of separation of powers were to the founders. In the book I wrote, it's sort of divided up into two sections. One at the beginning sort of tells the history, the improbable connections between Thomas Jefferson and Kentucky's founders, George Nicholas, who wrote our first Constitution, and John Breckinridge and the connection of Jefferson with Nicholas in particular their influence on Kentucky's unique separation of powers clauses. So Kentucky is the only state that has what Kentucky Supreme Court called a double barreled separation of powers provision. And this is because the founders, particularly Jefferson somewhat Madison, who wrote an essay that I found in the Nicholas Papers that references Jefferson and his influence on separation of powers, felt was so critical to be in our Constitution. And they came by it honestly. Amy if you look back at the history, you know, look at the Declaration of Independence, which Jefferson wrote. It's an indictment of King George iii. He had not so good relations with the king. He wrote later in an autobiography for his family, Jefferson did a few years before he died about what a terrible meeting he had with King George. When John Adams introduced him to it. They were very fretful of an overpowerful executive to the point where part of the inspiration for the book was an article Cheryl Snyder, Kentucky's leading state constitutional expert, wrote in 1984. He had an amazing comment in that article. He'd done some research on it and he said Thomas Jefferson wrote the first two clauses, the first two clauses of Kentucky's first, second and third constitution. And these clauses remain in Kentucky's Constitution to this day. They are the separation of powers clauses. And in support of that, he cited an 1898 Kentucky case that told this story about how Jefferson had met with Nicholas and Breckenridge at Monticello and given them these clauses. And it said he thought they were critical because the federal Constitution, in his view, did not adequately protect one branch from the other from impinging upon its powers. That's how critical Jefferson thought it was. And then one other piece from a historical perspective, and I bring it out in the book. I never knew this was the case until I really dug into it. Jefferson tried but failed to get these clauses in the federal Constitution. And we know that from looking at the Federalist Papers. Madison wrote Federalists 47 and 48, their essays. It's a six and a half page essay refuting Jefferson's idea that we needed a separation of powers clause in the federal Constitution. Jefferson thought I was critical. Madison was writing in 1787 trying to come up with a critical mass to get the federal Constitution approved. It was never included in the federal Constitution, but it was in Kentucky, to Kentucky's benefit. And I'll stop. But there are two reasons that's important. This clause has been repeatedly cited by Kentucky Supreme Court four or five times to validate some of Kentucky's greatest political and public policy reforms. It helped validate. It helped to defeat in 1989, the power equalization case for the Supreme Court invalidated Kentucky's inequitable distribution of funds and appropriations for our elementary and secondary education system. And the big case, LRC versus Brown, which sort of decided the limits of power between the executive and legislative branches. That case involved the General assembly trying to veto in the interim through the lrc, administrative regulations that were promulgated by the governor. And one of the most recent ones was when Governor Fletcher, Republican governor in 2005, tried to issue a budget by an executive order. When the General assembly refused to approve a budget and the Supreme Court used these separation powers clauses to say the governor had gone too far. That's the province of the legislature of the Constitution. And he invoked these clauses. So, long story short, you wonder to this day, if Jefferson had succeeded in getting those clauses in our federal Constitution, would that be more of a safeguard that the Supreme Court could use to invalidate some of these intrusions of the different branches of government, each on the other. And it's alive and well today with that education case a few weeks ago, and there are several other cases that have come along so clearly.
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Dennis Fleming Jr.
What your research shows is that Kentucky's Constitution is stronger on separation of powers than our federal constitution.
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Amy
Oh, absolutely. We're the only state with that double barreled one. And there's six or seven states that have some smaller version of it. And I think most of them sort of copied ours, but the rest of the states don't have one at all. And the Federal Constitution doesn't have one.
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Dennis Fleming Jr.
Yeah, in the Nicholas Papers. I was reading through your book and your book's titled Jefferson and the Kentucky Constitution, by the way, and anybody listening can go ahead and get that. But the Nicholas Papers, this was George Nicholas. He was one of the founders of the Commonwealth of Kentucky. And in the papers were heavily influenced by Thomas Jefferson. As you said, he went and talked with Jefferson many times. So Jefferson had an influence on what he wrote. And I'm just going to quote from one of these quotes here from his papers where he's talking about the separation of powers and why it's so important. He says such a government where powers are mixed, possesses all the advantages and is clear of the evils of a monarchy. By dividing the power into different hands, you are certain that one of them will oppose any improper step of the other. Here's the thing, Dennis, I'm not so certain right now. And it sounds like because our Federal Constitution maybe doesn't have that clear dividing line in the separation of powers. Do you agree with that?
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Amy
Yeah, I think I've thought many times what would have happened if we'd had more of an aspect of divisional language there between the branches and the Federal Constitution. And Nicholas, you could see, was so focused on it. And when I went through the Nicholas Papers, an interesting thing about the book, I was two thirds of the way through it writing what I thought was an interesting story about Nicholas and Breckenridge, but particularly Nicholas's relationship with Jefferson. They were both Virginians and Nicholas had served in the Virginia House of Delegates as a very young man. He was elected when he was 24 and Jefferson was 37 and he was serving as governor. So they sort of incubated there and he observed Jefferson's thinking on constitutional structures and state statutes. And they work closely together along with Breckenridge on a number of things. But I began to see Nicholas being interested in going to Kentucky to help Kentucky with its constitution. And Kentucky had struggled since 1784. We'd had a number of conventions down there in Danville and never been able to really get our act together. And I found Nicholas just before he went to Kentucky writing Madison, saying, I'm going to Kentucky to help them on their constitution. I'm working from Jefferson's notes on the state of Virginia. So that was a clue to me that Jefferson was already in his thought process. Then I found another letter from Madison to George Washington praising Nicholas for his work at the 1788 Virginia Constitutional Convention ratifying the Federal Constitution in Richmond, just before he left and went to Kentucky. His work at that convention was almost entirely about separation of powers. He gave a lengthy speech about how important it was to protect the branches each from the other. And he gave examples historically of in Great Britain and power of the King and he went all the way back to Rome and how the Senate could have been more powerful and the emperor was too powerful and that sort of thing. So when he gets to Kentucky, there he is with papers from Jefferson, notes of the state of Virginia. He's got a handwritten appointment from George Washington to be the U.S. attorney in Kentucky. And he's carrying a handful of essays that I found in the Nicholas Papers that are written by Madison. All of these papers repeatedly referencing Jefferson. He'll put a number in his own handwriting that I found. So I was way down the road writing this book and I came across the Nicholas Papers, which really my publisher said, oh, you've got to pull that up for the book. This helps solve the historical problem as to whether Jefferson influenced. There's Jefferson up to 11 times in the handwriting of Nicholas and Madison referencing these pages from Jefferson's notes on the state of Virginia, where He has a 22 page essay about how critical it is to separate the branches of government. We take a lot of these things for granted today that we have in our system, but it was a big deal back then.
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Dennis Fleming Jr.
Yeah, well, I don't know if we're taking them for granted today. I mean, what's going on? You know, how much, Dennis, has our country relied on norms rather than enforceable rules to maintain this separation, these balance of powers at the federal level?
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Amy
Well, I'll tell you one example. It's interesting, I mean, to think about some of the interesting actions of the current administration in terms of how the Supreme Court may interpret them. Look, for example, it didn't get a lot of attention, but the President issued an executive order maybe three, four months ago that called upon every administrative agency in government, whether it's a direct line reporting agency under a department, but it includes bipartisan agencies such as the sec, the fcc, Federal Communications Commission, all of them now have to run their administrative regulations by the White House. Now, these were statutorily created entities by Congress with bipartisan appointments. And they historically have not done that other than a courtesy. But the stopping point now, according to that order is going to be the White House. So to what extent could that be an intrusion upon the executive branch? And I'll tell you another case that came out just before President Trump's reelection was a case called Loper Bright. It was a huge Supreme Court case that dealt with some sardine fishermen up in Washington State that protested a inspection scheme upon their boats. They had to pay out of their own pocket for the Marine Fisheries Administration to come on their boats and so forth and see if they were catching too many sardines. And they protested. Supreme court rolled back 40 years of law and said the executive branch was exceeding its authority granted to it by Congress and they were conducting inspection schemes that were unconstitutional. And I'll tell you another case was that Jarkasy versus sec. It just came out several months ago. It invalidated the SEC's Civil Administrative Enforcement scheme. They have an adjudicatory system there. If you're engaged in insider trading and they find somebody $350,000. So they rolled back that and said it's an intrusion upon the executive branch. But some of the more things right hot off the press are some of these cases that deal with the power of the President to remove people from some of these congressionally created independent agencies. These are working their way to the Supreme Court. One just came down again a couple months ago, authored by Justin Walker, who's an excellent judge. He's a very thoughtful judge out of Louisville. But he they're sort of grazing in this area of the constitutional theory of the unitary executive. To what extent can you empower the executive? Almost exclusively. And it's never forget Jefferson worried to death about this back historically to the notes of the state of Virginia. He has an essay in there toward the end of that part that there's Nicholas and Madison. Writing Jefferson's name, referring to these pages, he tells what a near run thing it was in 1776 at the first Virginia Constitutional Convention. There was an effort to make the governor to be all powerful of the state, to have the ability to veto judicial decisions, to be in charge of the military, to have a 3/4 veto of the legislature. He said that was one of the most dangerous things at that first convention. So our founders were acutely concerned about this. Unaware of it.
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Dennis Fleming Jr.
What happens now because we've already seen the president refusing to comply with some congressional oversight. What happens if it's just a blatant, I'm just not going to comply with congressional subpoenas or congressional oversight? I mean, where do we go? I feel like we're already sort of in a constitutional crisis, but we haven't completely recognized it yet.
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Amy
Yeah, I, I think the system is structured to rely upon the courts and court orders. Now you have to think through how court orders are effectuated, and that's done through the Department of Justice. To what extent would the executive be able to command the Department of Justice to not enforce an order? That's just theoretical. I don't think it's happened yet. I'd be surprised if it got to that case. It would be unfortunate. It would really be a usurpation of the balance of powers and the constitutional structure. NICHOLAS Even at the Kentucky Constitutional Convention, Jefferson and Madison, in their essays, repeatedly relied upon the courts. They said the courts were critical and they needed to be independent. There repeated essays in there about how essential it would be for the court system to be able to resolve disputes, particularly between the executive branch and, and the legislative branch. And all of this was before. Remember, 1803 is Marbury versus Madison. That's where the court actually said we can make these sorts of decisions. And that that's been the case now for well over 200 years. So the, hopefully the ability of the court system to make rulings that would determine what can and cannot be done would be enforced and recognized by the Department of justice and the U.S. marshal Service and that sort of thing. I'd be surprised if things get to that point. And there's some really interesting cases that, a few of which I've mentioned that are on the docket in the coming months. And the Supreme Court is working a little bit overtime. They're working more this summer than they ever have in the past.
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Dennis Fleming Jr.
So we'll, you'll be watching that. You know, I feel like, I feel like, and I'm not a Scott scholar on this, but I feel like the Supreme Court has not adequately acted as a check on executive power in recent years. I, I could, I could be wrong. And I'm, I'm interested in your opinion on that. I feel like it's abdicated that role. But, you know, I, I'm also interested in your opinion on the absolute immunity from prosecution in criminal, from, from criminal prosecution of the president that the Supreme Court gave to all presidents, I guess, to, you know, this, this ruling that happened a couple of years ago. What your take on that is.
- [19:41]
Amy
Well, that's one the good thing to know about the court. It can always pull back on what it's done before, but that one was certainly a precedent set in case. I remember listening to the oral argument on that Thing I wasn't there. But you can listen to the oral arguments now, at least orally on the Supreme Court website. And I can't recall the name of the lawyer for the President, but he was extraordinarily good. He was strong and he made a good case about immunity. But you've got to think logically about immunity and how that carries out if you're absolutely immune from everything. I think it empowers him to do a number of things that could be concerning. I would be. It's always possible they could rethink some of those things and pull back on it. I think the Cherkasy case and local Bright case that I just mentioned are efforts even by this Supreme Court, which decidedly has a conservative tilt, try to pull back on the powers of the branches. So I see those cases, ironically, as being positives that could it set some precedent that could perhaps allow for some further delineation between the branches. And these are two cases that came out before the President's reelection. But there's some real barn burners that are on the docket coming up that'll be fascinating to see, to see how they develop. There's some members of the court that it'll be interesting to see how they fall on some of these cases.
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Dennis Fleming Jr.
Yeah. Now if you.
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Amy
Amy, Amy Comey Barrett, for example, will be.
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Dennis Fleming Jr.
Yeah, yeah, yeah. A lot of people don't know, you know, sort of how, how she would rule. Some of the prior thinking on how she would rule hasn't actually played out. But what, what, what constitutional reforms would you implement? Constitutional at the federal level? You know, maybe based on your research and experience with the Kentucky Constitution or just in general, given the current climate that we have, what constitutional reforms, if any, would you recommend to prevent sort of future abuses of executive authority or our current abuses?
- [21:52]
Amy
Well, some version of a separation of powers provision which was certainly hotly debated and considered well over 200 years ago, could be something that could be helpful now. So whether that would be a safeguard that would in the real world would be helpful, as I know Madison remembers, sort of opposed that. But he opposed it in 1787. Later, he began to favor it and wrote an essay for Nicholas to use at Kentucky's convention, which resulted ultimately in these clauses being the very first two sections in Kentucky's constitution. That's before the Enumeration of Liberties and Bill of Rights and all these things. That was those clauses were there for 60 or 70 years. And then after the Bill of Rights was put in place In Kentucky in 1891, they were still 27 and 28. The very first clause is right after Kentucky's Bill of Rights. But, you know, we've got to think about the challenges of constitutional reform federally and in Kentucky. Kentucky went through this in the late 50s and early 60s trying to have a constitutional convention. It was a big deal. The problem is, in 1891, Kentucky's constitutional revision has put a very complicated process in there. In order to have a constitutional convention, we can still amend the Constitution with up to four amendments each legislative session, which is the route Kentucky has gone historically. But as I mentioned in the book, when we had that dinner with the governors there in 1999, Governor Breathitt was then alive. He had been governor in the 60s when they tried to have a constitutional convention. And he said, forget it. It's too difficult. What he did. He went around the horn and he tried so many times to follow the 1891 construct, as did Governor Weatherby before him. He came up with a constitutional review commission of about 100 people. The Senate, the judiciary, and all these folks. They rewrote Kentucky's constitution, cut it in half from 256 articles, about less than 130, really trimmed its sales, submitted it to the Supreme Court. Kentucky Supreme Court said, hey, the people have the ultimate power. You can ignore these 1891amendments if you put it on the ballot and you publicize it, which they did. Breathitt made a big deal about it. When they finally put it on the ballot, it was defeated by the public 530 to 160, largely because a lot of the county governments felt like they were going to lose some of their power in the process. So I remember Governor Breathitt advising us. We were sitting there with nine governors and some members of the General assembly trying to decide whether we should have a constitutional convention, because our Constitution is great, but it's very unwieldy, and it's got a lot of things, you know, talking about the railroads, and there's a lot of anomalies that could be eliminated. And after that grand effort, I think I remember at the time, we proceeded to. We had put on the ballot. That's how we got annual sessions there. In 2001, that was put on the ballot in Kentucky. That was. There have been a number of constitutional amendments since then. But having a convention, and of course a convention at the federal level is. Is. Is always challenging. You have to get. What is it, three quarters of the state and has to go back. Everybody has to vote and has.
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Dennis Fleming Jr.
Do you think that that. That's just sort of impossible?
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Amy
Oh, practically, yeah. Essentially you'd have to have a, well, you could, I mean, you'd have to have a super majority. You could really, you, you could do it. But let's remember the, for example, when they had presidential term limits that we put that, that was a seven year process back in, I believe, in the 50s. Right.
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Dennis Fleming Jr.
So it'd be easier to amend the Constitution right now than to scrap it and.
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Amy
Oh yeah, it'd be easier than to have a Constitution convention for sure. Oh my gosh. Federally, that would be, I mean, it's, it's possible, but it would be quite an unwieldy.
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Dennis Fleming Jr.
I also think that the part of our separation of powers problem today isn't so much the constitutional framework that we have because, yes, it may not be as strong as Kentucky's constitution, but it has worked fairly well throughout the course of American history until the age of Trump, sadly. But I think a lot of that has to do with the fact that Congress is not willing to step up and check the president right now. I mean, do you think that has something to do with it? More, more so than the weakness of the, of the constitutional framework?
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Amy
Yeah, if Congress could step up more now, for example, there's a statutory framework, not the Administrative Procedures act, but there's a process by which Congress can check an administrative regulation at the end of its term and essentially attach it and say it's defective and reject it. Congress theoretically has the power to rein in administrative regulations that it feels are improper, but it's such an unwieldy, difficult process. I think the Supreme Court then could go back to these two cases that I just mentioned have. Now, if you look at those cases, they have put more of the burden on Congress. They said Congress can, it has to be more specific in its legislation and that some of these administrative agencies are going too far in their regulations and they're exceeding the authority granted to them by Congress and it's the onus's own Congress. As to whether Congress will take up that challenge with so many things that it has going on remains remains to be seen. But they certainly have the, the ability, if they want to exercise more authority and particularly through the appropriations process and the power of the purse. That's one of their ultimate hammers. It has been down through the years when Nixon, you know, remember the invasion of Cambodia and then Frank, the Church amendment and all those things that created the, essentially the Gang of Eight, the oversight on intelligence, and ultimately Congress began to pull the plug on the Vietnam War.
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Dennis Fleming Jr.
Well, I, I hear you on the Power of the purse, Dennis. But what, what about Trump, the Trump administration defunding federal agencies that were created by Congress. So like it. To me, it doesn't seem like the power of the purse is even a power anymore.
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Amy
That's one that could very well end up. That's the education case just a few weeks ago. That could end up referring to, for the court, certainly, as to whether that is an infringement usurpation of Congress's power under Article 2. We have Article 1, Article 2 and Article 3, and that's reflected in Section 27 in Kentucky's Constitution. It's very similar to it, but Congress had specific delineation of powers for the executive, judicial and legislative right at the beginning of our federal Constitution. And those are the touchstone provisions that Supreme Court has been using in, particularly in those two cases that I just mentioned. The ability to defund and remember, remove some of these employees in Department of Education in terms of an entity that was congressionally created will be an interesting question, I think, for the court to take up that. That is probably.
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Dennis Fleming Jr.
Didn't the Supreme Court just come down and say that the Trump administration could do this? Am I, am I misreading that?
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Amy
No, you're correct. There was a. I'm trying to think of the name of it. This said that the administration can, in fact, remove employees from some of these executive branch agencies that are, that are independent, congressionally created independent agencies. So it's, we're going to be in for an interesting period, I think, of consideration, particularly with a number of these other cases that are coming.
- [29:49]
Dennis Fleming Jr.
Yeah. Because, I mean, look, if Congress creates an agency or part of the federal government and then the president can just defund it, and, and basically, you're basically getting rid of it. So there's no power there. That power of the purse is, is gone in my mind, or at least really severely diminished. I, I very much worry about that. Among other things. Right. The dismissing the heads of independent agencies, as you talked about earlier. I think all of this is, is very worrisome. And I do think it comes down to, you know, we've lived with all these norms for so many years, and now the norms are being tested. I mean, it's true with Trump in the military as well.
- [30:36]
Amy
Here's one thing we haven't touched on. It's in the book, and I think it's one of the more exciting parts of the book. It deals with the Alien and Sedition Acts. I never dreamed when I wrote those three chapters in the book, the Alien Enemies act would be Alive and well today. And the book.
- [30:51]
Dennis Fleming Jr.
Can you. Can we take a step back, Dennis, and tell everybody what that is about? Because you're absolutely right. That is, that is like, oh, that's a happening right now. What was the Alien and Sedition Acts?
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Amy
Alien sedition acts were enacted by Congress in 1798, 1799. This was largely reaction to developing war with France in the Caribbean. We had taken the position that we were owe or about, wanted to renegotiate our debt to France growing out of the Revolutionary War because King Louis xvi, after which Louisville was named after, had been deposed and the Napoleonic Empire was getting underway. We were getting closer to Great Britain. We just signed the Jay Treaty and we had some new prerogatives in terms of maritime navigation. So France began to get angry with us and attack our shipping down in the Caribbean, which was a big deal in Kentucky because we had to have the port of New Orleans open. And we sent a delegation over to France to renegotiate the debt. It was a $4 million debt and the budget of the nation at the time was about 25 million. We met with three French diplomats. They asked us for a bribe of a million dollars. We said no. Our three people came back, Congress, President Adams, everybody went through the roof. We imposed a national property tax, if you can believe it. There were riots all over the country. There was Fry's Rebellion up there in Pennsylvania against it. We called up, we tried to create a 20,000 person army and a new navy in this climate. The Alien and Sedition Acts were passed, a component of which is the Alien Enemies Act. It called for increased from five to 14 years, the time in which you needed to be a citizen. But it also called for the deportation of alien enemies who had engaged in an invasion of the country or this is the critical language alive today in the federal court system, a predatory incursion upon the United States. What the administration has done is taken that language and tried to use it to deport allegedly illegal aliens that are members of the Venezuelan gangs or Colombia or Mexico and that sort of thing. And I'll tell you, Amy, I read some of the reports on the oral argument before the Federal Court of Appeals in New Orleans just two weeks ago. There are two of the three justices there leaning towards validating the use of that Alien Enemies Act. Now it's going to end up in front of the Supreme Court, but they seem to be reluctant to infringe upon the President's judgment in that regard. Now, the lower court ruled against it and said there's been no nexus between a predatory incursion. And they showed no evidence from an intelligence standpoint of coordination of gangs and that sort of thing, to the extent that it constituted a predatory incursion upon the country. But the interesting thing in the book was Kentucky's reaction.
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Dennis Fleming Jr.
Yeah, Kentucky was against all this.
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Amy
Kentucky went bonkers. There was a riot in Lexington. Lexington's population was 14,000 in 1800 in the census. And the front page of the Kentucky Gazette said 5,000 people turned out in protest against it. John Breckinridge introduced the secret, written secretly by Thomas Jefferson. He admitted later in his life the Kentucky Resolutions had called on Kentucky to nullify and not enforce the Alien Enemies Act. And that's because there are a lot of French sympathies in Central Kentucky. And the Irish, Scotch Irish were viewed as being targets there. Look at Kentucky's place names. There's Versailles. There's Paris and Bourbon county and Fayette Count and LaGrange. And Louisville's name. Louisville's named after. Yeah, and LaGrange is named after Lafayette's home. So Kentucky really went. There was a riot. Henry Clay got in a fight, a young Henry Clay that was working with John Breckenridge at the time. And ultimately that act died a slow death. But it became a critical issue in the election of 1800. And Adams was defeated by Jefferson.
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Dennis Fleming Jr.
Yeah, well, and they're using. The Trump administration is using this language or this language is being used to, to try to justify the deportation right of, of individuals. And I think you're going to see this sort of come to. To kind of a conflict here between legally speaking, between using the language that you mentioned in the alien and sedition acts, that, you know, we can deport people who are, who are considered a threat, you know, who makes that determination whether they are a threat or not. But also that's butting up directly against this idea of due process in that, you know, individuals here in the United States have a, an opportunity to, you know, have due process, and they can't just be nabbed and thrown in jail without due process. They can't be, you know, taken and thrown and deported to some, you know, third world country without some kind of day in court. Right. I mean, these two things will be clashing here.
- [35:58]
Amy
Very good point. I actually didn't think of it, to be honest. And that was what. Remember the Supreme Court, in its temporary stay on that action, mentioned and said there needed to be some due process for folks that are being deported in the lower court in that case. That looks like it's going to be reversed by the court of Appeals in New Orleans, address that as well. Now, you know, what are the practicalities of that due process? How can that be constructed? And how do you hear the administration say, well, we've got tens of thousands of people. Do we have a hearing for everybody? You could. I mean, amnesty hearings sometimes take several years to be processed and considered.
- [36:42]
Dennis Fleming Jr.
So, I mean, it was one of the things when you talk about comprehensive immigration reform, it's one of the things that's always talked about that we, we as a country need more resources going to these, these judges and these courts that look at these types of individuals. Everything's always backed up. If you could have more resources, you could actually process some of these things. And I think that most Americans want, you know, criminals to be, to be gone. We, we all want this. I think the, the problem is who's making that decision and are we deporting people who happen to be, you know, hairdressers or something else that, that, that they just don't necessarily look the part? And is that fair and, and correct?
- [37:29]
Amy
You know, that is such a volatile issue. And Congress has some come so close so many times. Amy I can recall when I was with Congressman Chandler In 2011, there was a construction that was later leader McConnell was there was a compromise that Congress was very close to enacting, and I think for political reasons, it got derailed. And then, remember just a few years ago, Senator Lanford, very bright, capable Republican moderate on immigration from Oklahoma, put together a compromise that pulled up a lot of the pieces from that 2011 effort, provided the resources that you just mentioned and the path to citizenship and the those sorts. And it just, again, I think for political reasons, it was not finalized. I hope we get there one day on that. I think we will. We'll have to. Yeah, but it might.
- [38:18]
Dennis Fleming Jr.
Oh, we have to. I mean, we haven't had comprehensive immigration reform. It has to be bipartisan or it's not going to work. Oh, it can't be bipartisan.
- [38:25]
Amy
It really does.
- [38:26]
Dennis Fleming Jr.
It hasn't. The last time we've had any immigration anything was in the, I think the early or mid-1980s. And so we, that's just there's so much has happened since then. So many people are living here in the United States have been living here. Some came as children. I mean, we have to have serious people in government that, you know, look at this and also making sure that our borders secure and all of these things. But as we wrap up this conversation, Dennis and it's been really interesting, certainly, from a historical perspective. I just want to know what your gut feeling is with regards to the separation of powers in our country. I mean, are we, is this, are we going to be resilient enough to get through this time, or are you sort of worried, like, way worried, like I am?
- [39:23]
Amy
Well, we have to look. You know, history can be our guide. I think we've been through some difficult periods. We certainly went through some difficult periods in the early 1800s. We, the Judiciary act and the War of 1812. We went through, you know, depending on someone's perspective, some difficult periods, you know, before the New Deal and after President Roosevelt and the court waxed and waned, but it ended up getting itself together. Remember, President Roosevelt was so angry with the court for striking down his New Deal provisions. He tried to pack it.
- [39:49]
Dennis Fleming Jr.
Tried to pack it.
- [39:50]
Amy
And, you know, we've had some discussions about that recently. And, you know, there were a lot of reactions against the Warren Court. And Rehnquist went in there. I think we'll be fine. I think we're certainly being stressed and challenged perhaps like we haven't been before. I think at the end of the day, the real genius of the founders is going to come to fore. And I'll say a quick thing about Kentucky. These separation of virus issues are alive and well today. There's a case for which I filed an amicus brief, which was written by Cheryl Snyder, Shell vs. Beshear. And this was a legislative act which empowered the Commissioner of Agriculture to appoint ex officio members of the State Fair Board. It was challenged by Governor Bashir. The Court of Appeals ruled that this violated in part the separation of powers clauses in Kentucky. And now it's on appeal to the Kentucky Supreme Court. But it was only 2 to 1 in the lower court opinion. And, and the dissent in that case challenged as to whether Jefferson had anything to do with Kentucky's separation of powers, which is a part of my book. And I try to bring that out in the amicus. So for those that are interested in that sort of tale of nuance, separation of powers is about to be front and center in Kentucky for the Supreme Court in this case. The oral arguments probably be in the fall, and it'll be really, really interesting to watch how that developed.
- [41:18]
Dennis Fleming Jr.
So, Dennis, I have to ask you, this is a, this is a whiskey bourbon show, and just at least the whiskey bourbon theme sort of in the background. But you're, you're a Kentuckian, so, you know, you're, you, you've got to have a favorite bourbon Right.
- [41:34]
Amy
Well, I've been to so many of the distilleries around there for, for ages and particularly when I, you know, worked as chief of staff to a member of Congress. They're representing the 6th district. But I think at the end of the day, despite how good Makers is Woodford Reserve and all the different, I have to come down on the side of Basil Hayden. I have a bottle right here. I think it makes the best Old Fashioned and that is great. I think it's just sort of a nice, somewhat mild but smoky favor. And it's 80 proof.
- [42:04]
Dennis Fleming Jr.
That's great. You know, I had Basil Hayden on this show, I don't know, a month ago or so and we talked about. Yeah, and I just had, I just did Old Granddad on the show, I think more recently too. And it's, it's really, it's fantastic. And you brought up an Old Fashioned, I gotta say, that is like my. It's old, but it's my new favorite drink. I just absolutely love it. Every, everywhere I go, I try to try to get an Old Fashioned.
- [42:31]
Amy
Oh, it's my go to. It really is. And I'll have it every time I can get it. Take it. When I'm in Kentucky with Basil Hayden and I have some with me and my place in D.C. and in Florida and I really, I've come down on the side of Basil Hayden at least for old fashions. And the others are good. Certainly Woodford will make a good one. And Makers.
- [42:51]
Dennis Fleming Jr.
Yeah. Well, we've got a lot of good bourbon here in Kentucky.
- [42:53]
Amy
We do. There's no end. Yeah, a lot of good choices.
- [42:57]
Dennis Fleming Jr.
Awesome. All right, so, Dennis, I also wanted to ask you about our current Supreme Court. And what case are you looking at most closely here in the next year or so?
- [43:10]
Amy
I think I'd be looking at the cases that are going to be challenging the President's authority with regards to administrative regulations. It sounds in the weeds, but I think this, whether he can expand his authority, which would be very interesting, in the direction of the unitary executive theory, which seems to be getting traction. And I also think this Alien Enemies act case is going to be interesting to track as that hits the court. I think we're going to see that 5th Circuit Court of Appeals decision here soon. Seems like they're two to three down there in New Orleans at that court, from the oral argument, at least, in favor of the President and how that one will be decided. And there very well may be 5 votes there on the Supreme Court to uphold that. And there's some Other ones dealing with appointed powers that I think are coming down the pike. And the financial pieces, this education case, to the extent that will work its way through the system, it could be eight months to a year or so. I think those three buckets are probably the ones that will be most interesting to see how the court comes down on them, to what extent they'll pull back, if any, on executive authority.
- [44:20]
Dennis Fleming Jr.
Yeah, well, and everybody should go out and follow you on Instagram and other social media sites. But what. Who do you look to when a Supreme Court case is. Is coming down and you want to kind of know what's going on? I mean, is there a one person or somebody you follow that can really make sense of it? Obviously, you're a lawyer, so you understand a lot more than sort of the average Joe, but is there somebody out there that you follow?
- [44:47]
Amy
I would watch, you know, just for the public's interest. You can certainly watch these cases. You can go to the Supreme Court website and. And listen to the oral arguments. The two that I try to pay attention to, I'd say, are Gorsuch and Amy Comey Barrett, just to see where they're leaning. They're very relatively transparent in their thinking, and they're such critical votes in a lot of these cases. Barrett is brilliant. She's an intellectual. She's from Notre Dame and been through the court system and is well regarded. But she can be mercurial and as an independent thinker. And Gorsuch, to some degree is. He can get testing from the bench. He's always fascinating to watch him react. And Roberts will tip his hand a little bit occasionally. Even the Chief Justice. Yeah, interesting to watch.
- [45:39]
Dennis Fleming Jr.
All right.