Truth in the Barrel - Episode: "Devil's Cut | The Separation Of Powers"

Release Date: July 29, 2025
Hosts: Amy McGrath & Denver Riggleman
Guest: Dennis Fleming Jr., Author of Thomas Jefferson and the Kentucky Constitution

Introduction to the Topic

In this episode of Truth in the Barrel, hosts Amy McGrath and Denver Riggleman delve deep into the intricate concept of the Separation of Powers within the United States government. Joined by Dennis Fleming Jr., a seasoned legal expert and author, the discussion navigates through historical contexts, contemporary challenges, and potential reforms related to the balance of power among the legislative, executive, and judicial branches.

Historical Foundations of Separation of Powers

Dennis Fleming Jr. opens the conversation by highlighting the current challenges to the Separation of Powers, drawing parallels to historical precedents. He states:

"Perhaps none more viciously attacked than the separation of powers, dividing power amongst the co-equal branches of government." [00:56]

Amy McGrath expands on the historical significance, referencing her own research in Thomas Jefferson and the Kentucky Constitution. She explains how Kentucky's unique double-barreled separation of powers clause was heavily influenced by Thomas Jefferson and his contemporaries:

"Kentucky is the only state that has what Kentucky Supreme Court called a double-barreled separation of powers provision." [03:00]

She further elaborates on Jefferson's profound impact on Kentucky's constitutional framework and how his efforts to include stronger separation of powers clauses in the federal Constitution were ultimately unsuccessful. This omission, Amy suggests, contributed to the current vulnerabilities in balancing governmental powers.

Kentucky's Unique Constitutional Framework

Dennis Fleming Jr. commends the research, noting:

"What your research shows is that Kentucky's Constitution is stronger on separation of powers than our federal constitution." [08:22]

Amy McGrath confirms and elaborates:

"Michigan, you're the only state with that double-barreled one. And there's six or seven states that have some smaller version of it." [08:29]

She discusses how these clauses have been instrumental in landmark Kentucky Supreme Court cases, reinforcing the strength of Kentucky's constitutional protections compared to the federal system.

Contemporary Challenges to Separation of Powers

Transitioning to present-day issues, Amy outlines several significant Supreme Court cases that challenge the current Separation of Powers:

1. Loper Bright Case: Questions the extent of executive authority over administrative regulations.
2. Jarkasy vs. SEC: Addresses the intrusion upon executive branch powers by independent agencies.
3. Alien Enemies Act: Revisits historical legislation now being used to justify deportations, raising concerns about due process.

She cites recent examples where presidents have expanded executive authority, often at the expense of legislative and judicial checks:

"The President issued an executive order that now requires all administrative regulations to be run by the White House." [14:10]

Dennis Fleming Jr. expresses concern over Congress's waning role in checking presidential power:

"Do you think that has something to do with it? More, more so than the weakness of the constitutional framework?" [26:34]

Amy acknowledges the challenges, emphasizing the cumbersome nature of constitutional reform and the diminishing effectiveness of traditional checks like the power of the purse.

Case Studies Highlighting Power Struggles

Amy McGrath delves into specific cases illustrating the erosion of Separation of Powers:

• Alien Enemies Act Revival: Originally passed in 1798, it's being repurposed to target individuals deemed threats without adequate due process.
• Executive Orders Overreach: Recent orders require independent agencies to seek White House approval for regulations, undermining their bipartisan integrity.

She references historical resistance to such overreaches, comparing them to Kentucky's opposition to the Alien and Sedition Acts in the early 1800s, which culminated in significant political shifts:

"Kentucky... called on Kentucky to nullify and not enforce the Alien Enemies Act." [33:44]

Potential Constitutional Reforms

When asked about possible reforms, Amy McGrath advocates for incorporating a Separation of Powers provision into the federal Constitution, inspired by Kentucky's robust framework:

"Some version of a separation of powers provision... could be something that could be helpful now." [21:51]

She discusses the historical resistance to such amendments, citing the complicated and often unsuccessful attempts at constitutional conventions. Amy underscores the necessity of bipartisan efforts to achieve meaningful reform, though she remains skeptical about the feasibility given current political climates.

The Role of the Supreme Court

Both hosts and Dennis Fleming Jr. examine the Supreme Court's role in maintaining or undermining Separation of Powers. Amy McGrath points out that recent rulings have sometimes favored executive over legislative authority, potentially setting dangerous precedents:

"The Supreme Court... has granted presidential immunity from criminal prosecution." [19:41]

She remains cautiously optimistic, noting that upcoming cases could either reinforce or further dilute the balance of power:

"There are some real barn burners that are on the docket coming up that'll be fascinating to see, to see how they develop." [44:20]

Public Perception and Future Outlook

As the discussion draws to a close, Dennis Fleming Jr. voices his concerns about the erosion of checks and balances and the potential for a constitutional crisis. Amy McGrath responds with a historical perspective, suggesting that while the current era is challenging, the foundational genius of the Founders provides resilience:

"I think we'll be fine. I think we're certainly being stressed and challenged perhaps like we haven't been before." [39:22]

She also highlights ongoing legal battles in Kentucky that continue to test and reinforce Separation of Powers, indicating that the struggle is both national and local.

Closing Thoughts and Lighthearted Moments

Despite the heavy subject matter, the conversation concludes on a lighter note with discussions about favorite bourbons, reflecting the podcast's unique blend of politics and whiskey appreciation. Both hosts and Dennis Fleming Jr. share their preferred bourbons, reinforcing the camaraderie and diverse interests that define Truth in the Barrel.

Key Takeaways

• Historical Insight: Kentucky's Constitution offers a stronger Separation of Powers framework than the federal Constitution, heavily influenced by Thomas Jefferson.

• Contemporary Issues: Recent Supreme Court cases and executive actions are challenging traditional balances, with significant implications for the distribution of power.

• Need for Reform: Incorporating clear Separation of Powers provisions at the federal level could bolster checks and balances, though political obstacles remain substantial.

• Supreme Court's Role: The Court is pivotal in either upholding or dismantling current power structures, with upcoming cases holding crucial importance.

• Resilience of Foundational Principles: Despite present challenges, historical precedents suggest a capacity for adaptation and resilience within the American political system.

Notable Quotes

• Dennis Fleming Jr.:
  "Perhaps none more viciously attacked than the separation of powers, dividing power amongst the co-equal branches of government." [00:56]

• Amy McGrath:
  "Kentucky is the only state that has what Kentucky Supreme Court called a double-barreled separation of powers provision." [03:00]
  "Some version of a separation of powers provision... could be something that could be helpful now." [21:51]

For more insightful discussions and detailed explorations of constitutional matters paired with fine bourbon, visit www.TruthintheBarrel.com.