In a penetrating interview with ECPS, Professor Barry Sullivan warns that “the separation of powers does not function as the Framers anticipated,” offering one of the starkest legal assessments yet of America’s constitutional crisis. Drawing on the Supreme Court’s ruling in Trump v. United States, he argues that “the constitutional doctrine and the man have met the moment,” producing a presidency with “virtually total control, without suffering any consequences.” Sullivan traces this shift to a revival of a “Nixonian” view of executive authority—summarized in Nixon’s infamous claim, “If the President does it, it is not illegal.” Such developments, he cautions, create “enclaves of unaccountable power” and dramatically heighten the risk of democratic backsliding, especially amid polarized parties and eroding constitutional conventions.
Interview by Selcuk Gultasli
In a wide-ranging and incisive interview with the European Center for Populism Studies (ECPS), Professor Barry Sullivan—the Raymond and Mary Simon Chair in Constitutional Law and the George Anastaplo Professor of Constitutional Law and History at Loyola University—offers one of the most sobering legal assessments to date of the United States’ ongoing constitutional transformation. As he warns, “the separation of powers does not function as the Framers anticipated,” and the consequences for American democracy are profound.
Speaking against the backdrop of the Supreme Court’s landmark decision in Trump v. United States, Professor Sullivan argues that “the constitutional doctrine and the man have met the moment.” Over the last fifteen years, the Supreme Court has steadily expanded presidential authority, culminating in an immunity doctrine that grants the President “virtually total control, without suffering any consequences.” This shift, Professor Sullivan notes, aligns disturbingly well with Donald Trump’s populist narrative of a personalized leader whose will supersedes institutional constraint.
Calling this new jurisprudence a revival of a “Nixonian” conception of executive power, Professor Sullivan underscores the danger. If the Court has effectively embraced the claim that “if the President does it, it is not illegal,” then the risk of democratic backsliding—especially when paired with the pardon power—becomes “very great.” This combination, he stresses, allows a President not only to immunize himself but “in effect, to grant immunity to those whose efforts on his behalf he needs,” creating what constitutional theorists call enclaves of unaccountable authority.
Throughout the interview, Professor Sullivan situates these developments within broader populist dynamics: the weaponization of “retribution” narratives, the erosion of constitutional conventions, and the increasing collapse of the administrative state under a muscular unitary executive model. His warning is stark: under the Court’s interpretation, the President possesses “virtually unlimited power,” and recent behavior shows “there is nothing that is too great or too small to capture his imagination,” from foreign policy decisions to symbolic renovations of federal buildings.
Crucially, Professor Sullivan emphasizes that the Framers never anticipated the rise of disciplined, polarized political parties—developments that have hollowed out checks and balances. As he notes, the Founders “would be absolutely aghast” at how party alignment now disables Congress and the courts from restraining executive overreach.
Finally, Professor Sullivan stresses that reversing democratic backsliding will require not only judicial recalibration but also broader political and civic reform. The core problem, he argues, is “not a constitutional problem but a political problem” rooted in polarization, unified government, and the abandonment of institutional good faith.
This interview offers an essential window into how constitutional design, judicial interpretation, and populist leadership together shape the current crisis of American democracy.
