Democracy's Chief Executive

Broken Law x Democracy's Chief Executive - Turning Checks and Balances Upside Down Jun 23, 2025

In this special crossover episode, Peter Shane was a guest on Broken Law, a podcast from the American Constitution Society. The ACS has agreed to let us publish the podcast here for our listeners. ___

In these first months of his second term, President Trump has fired or attempted to fire thousands upon thousands of federal workers. Notable among those affected by this unprecedented flexing of executive authority are leaders of independent agencies. Peter Shane joins Lindsay Langholz to discuss two recent cases that have significant implications on our system of checks and balances and just how far the president is allowed to go when it comes to control over independent agencies.

Host: Lindsay Langholz, Senior Director of Policy and Program, ACS

Guest: Peter Shane, Distinguished Scholar in Residence and Adjunct Professor of Law, New York University School of Law; Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at The Ohio State University Moritz College of Law.

Link: Litigation Tracker: Legal Challenges to Trump Administration Actions, Just Security

Link: Lawfare

Link: Does Evidence Matter? Originalism and the Separation of Powers, by Cass Sunstein

Link: The Supreme Court's Fed Carveout: An Initial Assessment, by Lev Menand

Email the Show: Podcast@ACSLaw.org

Project 2025: The Rule of Law or Retribution? Oct 25, 2024

Mary McCord, executive director of the Institute for Constitutional Advocacy and Protection(ICAP) and Visiting Professor of Law at theGeorgetown University Law Center, discusses with Peter Project 2025’s dangerous vision of a deeply politicized Justice Department acting in lockstep with a president bent on punishing his adversaries. She also explains why such a president is now likely freed of criminal liability for corruption in supervising the Justice Department (or the IRS or the CIA or . . .), given the Supreme Court’s presidential immunity decision in Trump v. United States.

Project 2025: A Tax Plan to Help the Wealthy and Burden the Middle Class Oct 23, 2024

Brendan Duke, senior director for economic policy at American Progress, explains to Peter the likely burdens on middle-income and lower-income families if Congress were to enact the near-term and longer-term/fundamental tax reform programs recommended by Project 2025. (As a bonus, he even explains tariffs!)

Project 2025: What it Would Mean for Unions and Workers Oct 21, 2024

NYU law professor and labor and employment law expert Cynthia Estlund explores the conflicting impulses evident in Project 2025’s chapteron labor policy—the one chapter that cites the Book of Genesis. For example, it wants to shift the focus away from DEI except for accommodating religious employers and employees; to introduce more flexibility into labor-management relations, except when it comes to worker decisions to unionize; and to cut back on temporary visas for legal non-citizen seasonal workers in agriculture and other sectors, unless that would actually be a bad idea. (The report offers both possibilities!)

Project 2025: Resisting the Nation’s Diversity Oct 18, 2024

Leading DEI consultants Angela Vallot and Mitchell Karp discuss with Peter and Dale what they believe is at the root of Project 2025’s hostility to diversity, equity, and inclusion programs, how cutting DEI programs can hurt government performance, and the difference between actual DEI practice and the caricature conjured up by the Heritage Foundation and its collaborators.

Project 2025: Fiddling While the Planet Burns, or Creating an Environmental Non - Protection Agency ? Oct 16, 2024

Georgetown law professor Lisa Heinzerling, herself a former EPA official and accomplished environmental litigator, explains to Peter and Dale Project 2025’s proposals for disempowering the EPA and creating a “hear no evil, see no evil, speak no evil” attitude towards climate change and environmental protection.

Project 2025: What Could a “Dictator for a Day” Accomplish? Oct 11, 2024

Peter discusses with noted presidential scholar Andrew Rudalevige what policies a new president could institute or reverse with the proverbial stroke of a pen, and why he expects a second TrumpAdministration would be more successfully aggressive than the first.

Project 2025: Furthering the Anti - Immigration Agenda Oct 09, 2024

Yale law professor and prominent immigration scholar Cristina Rodríguez explains to Peter and Dale the President’s central role in implementing immigration policy and why the Project 2025 agenda is both substantively misguided and unrealistic in its goals.

Project 2025: Building a Strongman’s Bureaucracy Oct 04, 2024

Paul Verkuil, formerly head of the Administrative Conference of the United States, discusses with Peter what is at risk both practically and constitutionally if a president tries to make loyalty to his or her agenda the paramount qualification for government service.

Project 2025: Killing the Department of Education and Starving Public Education Oct 02, 2024

Noted legal historian of American educationDiane Ravitch discusses howProject 2025’s vision for the future of federal education policy would hurt low-income communities and undermine genuine education as the goal of K-12 schooling.

Project 2025: More Rights for Fetuses Than Women? Sep 27, 2024

Attorney and long-time women’s rights advocate Lynn Paltrow discusses with Peter and Dale how the overruling ofRoe v. Wade has already worked to the detriment of women and what the Project 2025agenda portends for women’s privacy and health care.

Project 2025: An Extreme Transition Plan for a Right - Wing Presidency Sep 25, 2024

Public law scholar Peter Shane and journalist and public affairs writer Dale Russakoff lay the ground work for a series of deep dives into Project 2025 by explaining its four “pillars,” its animating vision, and the key individuals and organizations behind it

Behind the Vote - Connecting the Dots: The Fourteenth Amendment Disqualification Argument Mar 01, 2024

On this special "Connect the Dots" episode, co-hosts Peter Shane and Dale Russakoff discuss how Season 2 episodes on "Disqualifying an Insurrectionist President," "The Electoral Count Act and the Rule of Law," and "The Electoral College" affected their reactions to the Supreme Court argument on the decision of the Colorado Supreme Court to exclude Donald Trump from a primary ballot.

All Democracy's Chief Executive Behind the Vote episodes.

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Behind the Vote: Disqualifying an Insurrectionist President? Jan 23, 2024

In a bonus episode, Peter and Dale explore with two constitutional scholars whether the Fourteenth Amendment, Section 3 Disqualification Clause bars Donald J. Trump from again serving as president. Gerard Magliocca, whose 2020 academic research helped to spark interest in the question, and Garrett Epps, author of Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America, discuss whether the Disqualification Clause covers presidents, whether Donald Trump’s documented actions amount to “insurrection,” and whether Congress needs to enact enabling legislation before the Disqualification Clause becomes operative. They survey the Supreme Court’s options in reviewing the Colorado Supreme Court decision barring Trump from a presidential primary ballot in that state–and the legal and political implications of the different possibilities.

Behind the Vote: How Well Does the 21st Century Presidency Serve Democracy? Jan 09, 2024

This last regular episode of the season asks whether American democracy is well-served by the institution of the presidency in its current form. Is there an irreconcilable tension between the president as the nation’s foremost mobilizer of party politics and the president as a faithful, steady, law-bound manager of government? Are there aspects of our system for choosing presidents that expand the prospects for effective democracy, or does the system actually increase the risk of democratic failure? Do popular frustrations with our constitutional separation of powers help lay the groundwork for authoritarianism?

Peter and Dale explore these fundamental issues with Yale political scientist Stephen Skowronek, one of the nation’s foremost presidential scholars, and Bertrall Ross, the Justice Thurgood Marshall Distinguished Professor of Law and director of the Karsh Center for Law and Democracy at the University of Virginia.

Behind the Vote: January 6 in Historic Perspective Jan 02, 2024

The story of January 6, 2021 is, of course, a story of particular individuals who showed up to storm the Capitol or to incite them to do so. But the attack on the Capitol also seems to be part of two larger, overlapping stories.

One is a story about what has happened in recent decades in the evolution of one of our two major political parties. The other is a story about how political violence has been a tool to thwart inclusive democracy in the United States—a history of violence extending to before the Civil War.

Peter and Dale discuss these larger frames with three of the nation’s leading scholars, historians Peniel E. Joseph and Kate Masur, and sociologist and political scientist Theda Skocpol.

Behind the Vote: The Electoral Count Act and the Rule of Law Dec 19, 2023

This special super-sized episode explores, first, the process of certifying a new president-elect on the sixth day of January as that process is supposed to unfold and, second, the implications of prosecuting a former president for allegedly conspiring to disrupt that process. In the first part, Peter gets a briefing on the Electoral Count Act and its reform from Protect Democracy counsel, Genevieve Nadeau. He and Dale then explore decision making around the Trump indictment with former U.S. Attorney General and current Belmont University law school dean Alberto Gonzalez and former career prosecutor and Justice Department official Mary McCord, now Executive Director of the Institute for Constitutional Advocacy and Protection at the Georgetown University Law Center.

Behind the Vote: Lawyering Elections Dec 12, 2023

What is it like to be the chief lawyer for a major party’s presidential candidate in a national campaign? NYU law professor Bob Bauer, general counsel to Obama for America, the president’s campaign organization, in 2008 and 2012, and Ben Ginsberg, national counsel to the 2000 and 2004 Bush-Cheney presidential campaigns, as well as Mitt Romney’s presidential campaigns in 2008 and 2012, explore with Peter and Dale the roles and challenges of presidential campaign lawyering. They also discuss their roles in co-chairing the Obama Presidential Commission on Election Administration, as well as their co-founding of the Election Official Legal Defense Network.

Behind the Vote: How Secure is Your Right to Vote? Dec 06, 2023

The U.S. has an unfortunate history of officials in power often trying to make it more difficult for voters to vote. Recent years have also witnessed a sharp escalation in intimidation and threats targeting the poll workers and administrative officials responsible for assuring a complete and accurate ballot count. Peter and Dale talk to two voting rights experts–former Justice Department official and current law professor Gilda R. Daniels and Brennan Center vice president for democracy Wendy R. Weiser about their greatest worries going into the 2024 elections–and where they see progress.

Behind the Vote: Big Money Nov 28, 2023

Americans overwhelmingly believe that big-money donors get to play too big a role and ordinary people too little in electoral politics. Is there hope for reform?

How did the Supreme Court undo Congress’s efforts? Peter and Dale explore the history of attempts at federal campaign finance reform and the role of the Federal Election Commission with former Senator Russ Feingold, co-author of the McCain-Feingold Campaign Finance Reform Act (and current president of the American Constitution Society) and FEC member and former chair Ellen L. Weintraub.

Behind the Vote: Two Party System Nov 21, 2023

Many Americans report that they are frustrated by the two-party system and wish the U.S. were more of a multiparty democracy. Yet current election rules leave virtually no role for independent candidates or third parties in presidential elections other than “spoiler.” What are the features of U.S. elections that have helped ensure there will always be no more than two major parties in every era?

How might the rules be changed to facilitate the emergence of more parties, at least in legislative elections? Might the viability of more than two parties in legislative contests encourage more voter participation in presidential elections as well? Peter and Dale discuss the opportunities and challenges posed by third parties with political scientists Lee Drutman, Charlotte Hill, and Sandy Maisel.

Behind the Vote: Choosing Candidates Nov 14, 2023

There is no other major democracy that chooses presidential candidates the way Americans do–a system in which primary voters play such a large role and the formal role of party leadership is so limited. Political scientist and presidential campaign veteran Elaine Kamarck and election law scholar Rick Pildes explore with Peter and Dale the advantages and disadvantages of the major parties’ primary system, how it has evolved in unexpected directions since the 1970s, and why the system would now be difficult to change.

Behind the Vote: Polling Nov 07, 2023

Actual presidential elections occur only every four years, but political polls operate every year, week-in and week-out, supposedly to give Americans a real-time sense of who is up and who is down in the political horse race. How do the political candidates themselves use polling as a strategic tool? Can Americans trust polls that are not based on random sampling? Why do polls taken at more or less the same time sometimes seem to point in opposite directions? Peter and Dale examine the evolution and current practice of opinion research with leading Republican pollster Whit Ayres and leading Democratic pollster Geoff Garin.

Behind the Vote: Electoral College Nov 07, 2023

U.S. presidential elections turn on the mechanics of what is now called the “electoral college,” an institution that does not work at all as the Framers expected and which all too frequently threatens to undo the will of the voters. Peter and Dale talk with historian Alex Keyssar and leading election law scholar Ned Foley about electoral college mechanics, its evolution, how its creation and operation reflect our history of race and regionalism, the prospects for abolishing it, and the perhaps brighter prospects for reforms that will reduce the risk of election misfires.

Behind the Vote - COMING SOON Oct 24, 2023

How well does the American presidency serve the principles of American democracy? Is our democracy a beacon of hope, or a candle in the wind? For Season 2 we go ‘Behind the Vote’, looking in detail at presidential elections, big money in politics, the electoral college, third parties and polling among other important topics.

Launching exactly one year ahead of election day 2024. Lawyers, politicians, pollsters and government officials join Professor Peter Shane of Ohio State and NYU and co-host, veteran Washington Post journalist and best selling writer Dale Russakoff.

Prosecuting Past Presidents Apr 24, 2023

Does the indictment of former president Donald J. Trump by a New York prosecutor reinforce or compromise the rule of law? What happens now in Trump’s case, and what are the implications for presidential accountability moving forward? Host Peter Shane and co-host Professor Carissa Byrne Hessick, director of the Prosecutors and Politics Project at the UNC School of Law in Chapel Hill, discuss the indictment’s specifics and its larger implications with Ambassador Norman Eisen (ret.), Senior Fellow in Governance Studies at Brookings, and Professor Ric Simmons of the Ohio State University Moritz College of Law (and a former assistant district attorney in Manhattan).

Is Impeachment a Meaningful Check on Presidential Lawlessness? Mar 20, 2023

Since Richard Nixon resigned rather than face a House impeachment vote after Watergate, the U.S. has seen three impeachments and three trials, none of which has resulted in a conviction or voluntary resignation. What do Watergate and the Clinton and Trump episodes tell us about the circumstances in which impeachment might remain a meaningful check on a President’s abuse of power? Peter Shane pursues the basics of impeachment law with constitutional scholar Michael Gerhardt and then interviews former Congresswoman Elizabeth Holtzman, a key figure on the 1973-74 House Judiciary Committee, regarding her experience in the Watergate investigation and perspective on more recent impeachment episodes.

Presidents in Court Mar 13, 2023

Whether law truly controls the exercise of presidential power is often conflated with the question of whether the President and agencies of the executive branch of government are effectively accountable to courts. Is the U.S. court system, our judicial branch of government, up to the challenge of keeping presidential power in check? How does the United States compare to other nations in this respect? Do lawsuits against the President advance the rule of law or just deepen partisan warfare? Peter Shane and NYU law professor co-host Rick Pildes explore these questions with fellow legal scholars Payvand Ahdout and Samuel Issacharoff.

Can Presidents Run the Government Through Executive Orders? Mar 06, 2023

In the face of a polarized and often gridlocked Congress, presidents have increasingly appeared to use various forms of “executive action” to advance their agendas. This has created a great deal of public (and journalistic) confusion about the nature of executive orders and other forms of executive initiative. Political scientist Andrew Rudalevige and law professor Kate Shaw, who has served in the White House Counsel’s office, explore the reach and limits of executive orders with Peter Shane and his co-host, Columbia law professor Gillian Metzger.

Presidential Secrecy and the Rule of Law Feb 27, 2023

Holding presidents and their subordinates accountable to law means knowing what they are doing. Yet the constitutional law of executive privilege and the interplay of federal statutes like the Freedom of Information Act and the Presidential Records Act create a complex legal landscape on which to conduct the struggle for government transparency. Peter Shane and his co-host, political scientist and public policy scholar Mark J. Rozell, sort out the issues in an interview with law professors Heidi Kitrosser and Margaret Kwoka.

Law and the Presidency in War and National Emergencies Feb 20, 2023

The contexts posing the greatest challenges to a rule-of-law concept of executive power involve war and national emergencies. Do the needs for expediency and confidentiality often associated with war-making and national emergencies preclude legal accountability for executive action in the face of exigency? Peter Shane explores the issues with law professors David Driesen and Matthew Waxman, along with Elizabeth (Liza) Goitein, Senior Director, Liberty & National Security, at the Brennan Center for Justice.

The President’s Lawyers Feb 20, 2023

Peter Shane and co-host political scientist Nancy Kassop explore the role of key legal advisors to the President, both inside the White House and at the Department of Justice. Law professor guests Bob Bauer, who served as White House Counsel during the first Obama Administration, and Jack Goldsmith, who headed the Justice Department’s Office of Legal Counsel during the second George W. Bush Administration, explain the roles these offices play and some of the challenges, legal and ethical, that presidential lawyering involves.

Democracy’s Chief Executive: The Podcast Feb 13, 2023

Democracy’s Chief Executive: The Podcast is designed to engage a broad public in probing the difficulties facing the United States in maintaining a constitutional presidency that is healthy for democracy and the rule of law, but still strong and powerful enough to meet contemporary challenges. Over six episodes, podcast creator and host Peter M . Shane, along with his co-hosts and guest panelists, will explore law’s reach and limits regarding the America’s highest office, and the people—lawyers, judges, and legislators—through whom law is brought to bear (or not) on the White House. Peter is a leading scholar on law and the presidency and author of Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency (2022).

Democracy's Chief Executive - COMING SOON Feb 10, 2023

No political office is more important than the U.S. presidency in terms of the resources it commands, the responsibilities it bears, and the symbolism it embodies. Over the last half century, Congress and the courts have engaged more significantly than ever in policing the legal and constitutional boundaries of presidential authority. While decisions about the scope of presidential power can result in profound impacts for the American public, the technical issues are often complex and not well understood, sometimes even by political journalists. This podcast offers the promise of publicizing and clarifying these hugely important questions.

Joining Peter for each session would be a co-host and one or two interviewees whose scholarly research or professional experience is focused on that episode’s topic. If successful in attracting a significant audience, future seasons would likely include episodes with the capacity to intermix timeless topics with conversations of a “ripped-from-the-headlines” feel.

Peter is a leading scholar in U.S. constitutional and administrative law, with a special focus on the American presidency and the separation of powers. The University of California Press in May 2022 published Peter’s newest book, Democracy’s Chief Executive: Interpreting the Constitution and Defining the Future of the Presidency. He is currently a Distinguished Scholar in Residence at NYU Law, where he is teaching constitutional law. He holds the title also of Professor and Jacob E. Davis and Jacob E. Davis II Chair in Law Emeritus at the Ohio State University’s Moritz College of Law, where he regularly taught courses in constitutional and administrative law, law and the presidency, and subjects at the intersection of law, democracy, and new media.

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