Separation of Powers

The Least Dangerous Branch? Reflections on Bickel’s Classic - Podcast

Professional Responsibilities & Legal Education Practice Group Podcast
Erwin Chemerinsky, James A. Haynes, Ronald Rotunda July 14, 2016

The Federalist Society's Teleforum series, Legal Classics Revisited, will consider Professor Alexander Bickel's 1962 book, The Least Dangerous Branch. In a life cut short just before his 50th birthday, Professor Bickel contributed to our understanding of American constitutional law. Among his more provocative concepts was the "counter-majoritarian difficulty." It is not unique to observe that in a nation governed by elected representatives, an unelected Federal judiciary with lifetime tenure represents an anomaly. Alexander Hamilton penned Federalist No. 78 to explain and defend the idea. Professor Bickel takes Hamilton's idea and his title and spends his book exploring the questions: How can an unelected branch of government be a co-equal branch of government? How can society enjoy the benefits of an impartial judiciary without seismic jolting along the fault line between majoritarian and counter-majoritarian institutions? Professor Bickel's questions are still extremely relevant today.


  • Dean Erwin Chemerinsky, Dean and Distinguished Professor of Law, University of California, Irvine
  • James A. Haynes, Attorney and Alternate Judge, U.S. Dept of Labor, Employees Compensation Appeals Board
  • Prof. Ronald Rotunda, Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence, Chapman University Dale E. Fowler School of Law

House of Representatives Wins Round One of Obamacare Challenge: U.S. House of Representatives v. Burwell - Podcast

Administrative Law & Regulation Practice Group Podcast
Josh Blackman May 20, 2016

On Thursday, May 12, a United States District Court Judge upheld a constitutional challenge to the Affordable Care Act by finding that the monies for two programs that reimburse insurance companies for providing health coverage at lower costs to low-income consumers and provide tax credits to help these consumers afford their premiums were never appropriated by Congress, and that the programs were thus unconstitutional. Judge Rosemary M. Collyer stayed her decision pending appeal. Our expert discussed the opinion as well as its outlook on appeal.


  • Prof. Josh Blackman, Assistant Professor of Law, South Texas College of Law

Bank Markazi v. Peterson - Post-Decision SCOTUScast

SCOTUScast 5-16-16 featuring Erik Zimmerman
Erik Zimmerman May 16, 2016

On April 20, 2016, the Supreme Court decided Bank Markazi v. Peterson. The Iran Threat Reduction and Syria Human Rights Act of 2012 makes a designated set of assets available to satisfy the judgments gained in separate actions by victims of terrorist acts sponsored by Iran. Section 8772(a)(2) of the statute requires a court, before allowing execution against these assets, to determine, inter alia, “whether Iran holds equitable title to, or the beneficial interest in, the assets.” Respondents—more than 1,000 victims of Iran-sponsored acts of terrorism, their estate representatives, and surviving family members—hold judgments against Iran and moved for turnover of about $1.75 billion in bond assets held in a New York bank account allegedly owned by Bank Markazi, the Central Bank of Iran. When respondents invoked §8772, Bank Markazi argued that the statute was unconstitutional, contending that Congress had usurped the judicial role by directing a particular result in a pending enforcement proceeding and thereby violating the separation of powers.  The District Court disagreed and upheld the statute. The U.S. Court of Appeals for the Second Circuit affirmed, and Bank Markazi took its objection to the U.S. Supreme Court.

By a vote of 6-2, the Supreme Court affirmed the judgment of the Second Circuit. Justice Ginsburg delivered the opinion of the Court, which held that Section 8772 does not violate the separation of powers. Justice Ginsburg was joined by Justices Kennedy, Breyer, Alito, and Kagan. Justice Thomas joined the majority opinion in all but Part II-C. Chief Justice Roberts filed a dissenting opinion in which Justice Sotomayor joined.

To discuss the case, we have Erik Zimmerman, who is an attorney at Robinson, Bradshaw & Hinson, PA.

Preserving Freedom: Federal vs. State Power - Event Audio/Video

2016 Annual Western Chapters Conference
Adam Freedman, Christina Sandefur, Adam Winkler, Sandra Segal Ikuta, Stephen M. Duvernay February 17, 2016

Sometimes federalism is invoked because we believe the best way to preserve freedom is to devolve to the local level. With the federal government’s reach extending into more facets of daily life like education policy, labor & employment policies, and healthcare, calls for state and local governments to stand against Washington are increasing. Yet at times, local government can serve as an even greater restraint on individual rights. From regulations governing entrepreneurship and the sharing economy, the minimum wage, asset forfeiture, and policing, state and local government at times may intrude on individual freedom even more than the federal government.  State initiatives on “right to try” (now law in 24 states) and marijuana regulation also lead to federalism questions, putting conservatives and libertarians at odds. How do we strike the proper federalism balance? How should principles of federalism inform the federal government’s response to state initiatives?

This panel was part of the 2016 Annual Western Chapters Conference at The Ronald Reagan Presidential Library in Simi Valley, CA on January 30, 2016.

Preserving Freedom: Federal vs. State Power

  • Mr. Adam Freedman, Author, A Less Perfect Union and The Naked Constitution
  • Ms. Christina Sandefur, Executive Vice President, The Goldwater Institute
  • Prof. Adam Winkler, Professor of Law, UCLA School of Law
  • Moderator: Hon. Sandra Segal Ikuta, U.S. Court of Appeals, 9th Circuit
  • Introduction: Mr. Stephen M. Duvernay, Benbrook Law Group

The Ronald Reagan Presidential Library
Simi Valley, CA

Attorney General Scott Pruitt's Opening Address at the 2016 Annual Western Chapters Conference - Event Audio/Video

2016 Annual Western Chapters Conference
Scott Pruitt, Eugene B. Meyer February 17, 2016

James Madison wrote that our system of federalism provides “a double security…to the rights of the people.” In other words, the 50 states serve as shields for individual rights that the federal government fails to protect. States can harness these tools to protect important rights. The intro will set the stage for the day’s theme, building on the Founders’ concept of federalism, tying it to Reagan’s ascendancy and the framework of the Reagan Revolution, and touching on the concepts of states’ powers.

This address was part of the 2016 Annual Western Chapters Conference at The Ronald Reagan Presidential Library in Simi Valley, CA on January 30, 2016.


  • Hon. Scott Pruitt, Attorney General, Oklahoma
  • Introduction: Mr. Eugene B. Meyer, President, The Federalist Society

The Ronald Reagan Presidential Library
Simi Valley, CA