Ben Okonkwo: Jonathan, hey — you catch any of the coverage this week about the court blocking that executive action?
Jonathan Ingles: Which one — there were two.
Ben Okonkwo: Right, exactly — which is actually the thing that's been nagging at me. Because every time it happens, the framing is 'the system is broken, the courts are overreaching' — and I keep thinking, no, wait, this is actually the system doing precisely what it was told to do.
Jonathan Ingles: Working as designed.
Ben Okonkwo: Working as designed, yeah. And the specific thing that doesn't add up — this is what I want to dig into today — is the mandate problem. So picture this: a president wins a landslide. Their party controls Congress. A bill passes both chambers. And then either a federal judge blocks it cold, or the U.S. Senate simply refuses to release the funding. And people act shocked. But James Madison wrote this down in 1788. Federalist No. 51. He said, more or less, ambition must counteract ambition. He built the blocking in on purpose.
Jonathan Ingles: Right, and that's the thing that actually bothers me about how we talk about this. Because the civics-textbook answer is 'checks and balances, separation of powers, it's a feature.' But — look — is it actually working as a safeguard, or is it working as a filter for something else entirely?
Ben Okonkwo: That's the question. And it's sharper than it sounds. So let me try the plain version first — because I think once you see the structure, the uncomfortable part becomes obvious. Think of it like a building with three completely separate locks on the front door. Winning an election gets you one key. But there are two others, held by different institutions, and they don't have to hand theirs over just because you won.
Jonathan Ingles: And nobody told the voters that before they celebrated.
Ben Okonkwo: Nobody told the voters. So the real question — the one that runs through everything we're getting into — is who does this actually serve? Because Madison's logic is elegant. But the architecture he built has veto points at every stage: bicameralism, so legislation needs both chambers; the congressional appropriations power, so the executive can't spend a dollar Congress didn't authorize; judicial review, so courts can strike the whole thing down. And the question is whether those points are neutral brakes or something more specific.
Jonathan Ingles: The fact is, they're not neutral. That's where I'd push. But — let's build the case first.
Ben Okonkwo: So building that case — the concrete mechanics — starts with the most underappreciated fact about bicameralism. Before the president even sees a bill, it has to clear two completely separate institutions. The House and the Senate. Two veto points inside the legislature alone. Not one.
Jonathan Ingles: Two separate majorities.
Ben Okonkwo: Right, and they're structured differently on purpose. House seats are reapportioned every ten years by population. Senate seats — two per state, Wyoming the same as California. So you can imagine a bill that clears the House with room to spare and then just dies in the Senate because the arithmetic is completely different. That's not dysfunction. Madison wanted that.
Jonathan Ingles: The 'ambition counteracts ambition' thing from Federalist No. 51. He wasn't being poetic — he actually meant build the rivalry into the structure.
Ben Okonkwo: Exactly that. And then — okay, now add the Senate filibuster. Most people assume the filibuster is constitutional. It isn't. Madison never wrote it. Sixty votes for cloture, that threshold — Congress invented it, slowly, through the nineteenth century. And Congress could eliminate it tomorrow with a simple majority.
Jonathan Ingles: Hold on. A simple majority could kill it?
Ben Okonkwo: Simple majority. Which means — and this is worth sitting with — one of the most powerful veto points in the entire system, the one that requires sixty votes to pass anything through the U.S. Senate, is a rule the Senate made up and could unmake. It's not structural in the constitutional sense. It's political.
Jonathan Ingles: So when people say 'durable constitutional design,' they're partly talking about a Senate floor procedure that has no constitutional basis. That's — frankly, that completely changes the durability claim.
Ben Okonkwo: It complicates it, yeah. Now the checks that actually are in the Constitution — the appropriations power is maybe the hardest one. The executive literally cannot spend money Congress hasn't authorized. No workaround. The border wall fight made this visible: Congress appropriated specific amounts, the executive tried to redirect funds from elsewhere, and the whole thing became a court question precisely because that constitutional line is real.
Jonathan Ingles: That's the one that doesn't bend for an electoral mandate. A president wins forty-five states — doesn't matter. If Congress doesn't write the check, the executive cannot act.
Ben Okonkwo: And that's what Madison actually built — the idea that a landslide gets you legitimacy, not the ability to spend. Those are separate things. Judicial review on top of that means even a law both chambers pass can be struck. The Supreme Court has that power, and — interestingly — that power also isn't explicitly in the Constitution. It's precedent.
Jonathan Ingles: No, I know — and that's actually where I want to push next, because who those judges are is itself a product of the Senate confirmation process. The veto points are interlocked. You can't look at judicial review in isolation.
Ben Okonkwo: Right, and that interlock is — hm — that's the part the architecture-as-safeguard story tends to glide past. Because if the Senate is also the body that confirms the judges doing the review, the independence gets complicated fast.
Jonathan Ingles: Complicated is doing a lot of work there. Because the interlock only matters if both ends are actually pulling. And the evidence suggests one end has basically gone slack.
Ben Okonkwo: Say more — which end.
Jonathan Ingles: Congress. Specifically on security and war powers. Think about 2003 — troop deployments beginning, no formal declaration of war. The constitutional authority to stop it exists. Appropriations power, legislative override, the whole toolkit. And Congress just... didn't pick it up.
Ben Okonkwo: Right, and that's actually the sharpest thing Jasmine Farrier's research surfaces. When Congress has gone to court to challenge presidential unilateralism — and it has, there are actual lawsuits — courts have frequently declined to hear those cases. They invoke justiciability doctrines. Standing problems. Political question doctrine. So Congress tries to use the judicial veto point, and the court says: not our problem.
Jonathan Ingles: Wait — courts are just refusing to take the cases?
Ben Okonkwo: Frequently. Which means — okay, this is the part that breaks the clean symmetry — the judiciary is supposed to be the final check, but it's opting out of the specific conflict where executive power has expanded most. War powers, foreign affairs, executive orders. The gap between what judicial review is supposed to do and what courts actually do in those cases is significant.
Jonathan Ingles: And that's not accidental judicial caution. That's a structural tilt. Gardner and Thrower actually document this — presidential influence shapes which cases the Supreme Court agrees to review in the first place. So the 'independent judiciary' story gets complicated before a case even gets heard.
Ben Okonkwo: That's — yeah, that's the part I find hardest to explain away. Because now you have presidential unilateralism expanding through executive orders and proclamations rather than legislation, Congress ambivalent about asserting its checking function, and courts declining to adjudicate when Congress does try to push back. All three conditions at once.
Jonathan Ingles: The border wall case makes this concrete. Congress appropriated specific funds. The executive tried to redirect money that was never appropriated for wall construction at all. Courts got asked: where does the appropriations power actually end? And even that — a direct constitutional question about money Congress explicitly didn't authorize — became years of litigation.
Ben Okonkwo: Hm. And the underlying power — Congress's appropriations power — is maybe the most unambiguous check in the whole Constitution. No workaround, no discretion. Except apparently there is, if you're willing to litigate long enough.
Jonathan Ingles: Which brings you to the actual gap — structural capacity versus political will. The Constitution still has the checking tools. Congress just demonstrably won't always use them. Those are two completely different problems.
Ben Okonkwo: Right, and I want to be precise about that — the Constitution is structurally intact. The separation of powers design Madison built is literally still there. What's eroded is the political will to activate it, especially in security contexts. That's not a design failure. It's a political failure that the design cannot fix by itself.
Jonathan Ingles: And where that goes next — the part that's actually darker than the ambivalence story — is the question of who benefits when the friction stays in place but only gets enforced selectively. The ACA, Dodd-Frank — we should dig into that.
Ben Okonkwo: And that selective enforcement — that's where Benjamin Page's research becomes almost uncomfortable to read. Because his argument isn't just that the system is slow. It's that the veto gates are structurally tilted toward whoever can afford to sit at every one of them.
Jonathan Ingles: Name the specific mechanism. Because 'organized wealth benefits' sounds like a slogan.
Ben Okonkwo: Okay — so picture a hospital administrator in 2009. The ACA is moving through committee. She wants coverage expansion. She has no lobbyist in the room. But the insurance industry does — and not just one lobbyist, a team tracking every markup, every amendment, every procedural vote in both chambers. Each veto point is another moment to reshape the bill. And well-resourced actors can afford to be present at all of them simultaneously. Diffuse majorities can't.
Jonathan Ingles: And the ACA still passed. So doesn't that break the argument?
Ben Okonkwo: That's the fair counter — and it's the one I actually want to take seriously. Because yes, the ACA passed. Dodd-Frank passed. Unified Democratic government, 2009 to 2010, both chambers. But the scholarship on this is pretty specific: the bias shows up in what the final law contains, not just whether it passed or how long it took. The individual mandate structure, the absence of a public option — that's the fingerprint of industries that could litigate and lobby at every gate.
Jonathan Ingles: The public option. That's — yeah, that's the thing that just quietly disappeared.
Ben Okonkwo: Disappeared through the Senate, specifically. Sixty votes. And the insurance industry had every incentive to hold that line — actually, wait, it's more precise than that — to find the two or three senators where the math was closest and work those pressure points. The filibuster threshold made that viable. A simple majority threshold probably doesn't.
Jonathan Ingles: So the same veto point that protects against a potential tyrant also handed the insurance industry a blocking position on coverage for millions of people.
Ben Okonkwo: That's exactly the tension Page's research names. The architecture doesn't distinguish between those two cases. The gate doesn't know who's behind it.
Jonathan Ingles: Which means the 'neutral safeguard' framing is doing cover work. It's not neutral — it's a wealth filter that happens to occasionally also stop authoritarianism.
Ben Okonkwo: I think that's — I mean, I'd frame it slightly differently. It's not that the design is malicious. It's that organized interests and blocking institutions have co-evolved. Dodd-Frank is the same story — financial regulation passed under unified government, and the regulated industry shaped the final text through exactly this multi-gate friction. The bias is documented. That's not a metaphor.
Jonathan Ingles: No, I don't buy the 'not malicious' hedge as a reason to soften the finding. Whether it's intentional or emergent, the outcome is identical — Congress's appropriations power, the Senate's confirmation function, judicial review — these aren't operating as Madison's symmetric competition. They're operating as asymmetric leverage for whoever has the legal budget to exploit every gate.
Ben Okonkwo: And that's the honest level of certainty the research supports — the same architecture that blocked potential tyranny last century demonstrably slowed healthcare coverage for millions in this one. Those aren't separate facts. They're the same fact.
Jonathan Ingles: And that's the thing I keep sitting with. We started this whole conversation because two courts blocked two executive actions in the same week, and the take was 'the system is broken.' But the darker version — the one I can't shake — is that the system looking functional and the system actually being functional are two different things.
Ben Okonkwo: Right — and that's, hm, that's actually the honest place the research lands. Partisan polarization, executive control of media narratives, atrophy of congressional institutional capacity over decades — those are the specific conditions researchers flag as capable of hollowing out veto points while leaving them sitting perfectly intact in the constitutional text. Madison's architecture is still there. The separation of powers is literally still there. But it runs on a fuel source he couldn't guarantee.
Jonathan Ingles: Political competition. Branches actually wanting their own power.
Ben Okonkwo: That's it. The whole system — judicial review, appropriations power, bicameralism — it works when branches compete. When Congress decides its own power is worth defending. When the U.S. Supreme Court agrees to hear the case rather than invoke a justiciability doctrine and walk away. Strip those conditions out, and what you have is Federalist No. 51 on parchment.
Jonathan Ingles: And we'd probably only know it stopped working after the fact. That's — frankly, that's the part that's actually unsettling. Not the design. The lag.
Ben Okonkwo: Yeah. The honest question isn't whether Madison built something durable. He did. It's whether the political conditions for activating it are still in place — and I don't think anyone has a clean answer to that right now.
Jonathan Ingles: We started this because a court blocked something and people called it broken. Turns out the scarier version is a court that just doesn't take the case.
Ben Okonkwo: Quietly. No ruling. No record. Just — not our problem.
Jonathan Ingles: Good conversation. Really.
