Separation of Powers

Cass R. Sunstein is Robert Walmsley University Professor at Harvard University, where he is the founder and director of the Program on Behavioral Economics and Public Policy. Former Administrator of the White House Office of Information and Regulatory Affairs, he is the author of On Liberalism, Climate Justice, The Cost-Benefit Revolution, How Change Happens, Too Much Information, Sludge, Climate Justice (all published by the MIT Press), Nudge (with Richard H. Thaler), and other books. In 2024, he was awarded the Distinguished Public Service Medal, the Department of Homeland Security s highest civilian honor.

• Table of ContentsChapter 1: Freedom and TyrannyChapter 2: What the Legislature Cannot DoChapter 3: What the Executive Cannot doChapter 4: What the Courts Cannot DoChapter 5: The President’s ImmunityChapter 6: The Most Dangerous BranchChapter 7: Deliberative Democracy in the TrenchesChapter 8: The Grand NarrativeChapter 9: Nondelegation CanonsChapter 10: Major QuestionsChapter 11: Arms Control Is HardEpilogue

REVIEWS"A subtle but critical examination into federal power and the many ways it can be used—and abused."—Kirkus Reviews"One book that leaders would do well to read and reflect on is Cass R Sunstein’s Separation of Powers: How to Preserve Liberty in Troubled Times. It is not, as Sunstein says, an argument about what the US constitution says or was meant to say: it is an argument that what he sees as the “six separations” that make it work have enduring importance to healthy democracies. (Sunstein’s six separations are: “the legislature may not exercise the executive power”, “the legislature may not exercise the judicial power”, “the executive may not exercise the legislative power”, “the executive may not exercise the judicial power”, “the judiciary may not exercise the legislative power” and “the judiciary may not exercise the executive power.”) This is a work that we need professional politicians, regardless of their country, to think about and internalise: and that is precisely why whatever is going wrong, a politics without politicians would be almost as undesirable as democracy without the tempering influence of liberalism. "—The Financial TimesENDORSEMENTS“James Madison once noted that questions about the separation of powers ‘puzzle the greatest adepts in political science.’ Cass Sunstein ranks high among today’s greatest adepts, and his deft analysis in this brief but incisive book demonstrates why.”—Jack Rakove, William R. Coe Professor of History and American Studies and Professor of Political Science, emeritus, Stanford University; author of Original Meanings “Separation of Powers is as powerful as it is timely. Subtly drawing parallels between Nazi Germany’s obedience to its führer and the current obsequious treatment of the leader of the United States, Sunstein mounts a devastating attack on the Supreme Court’s recent decisions that undermine the separation of powers and threaten the liberty that the separation of powers has protected for nearly 250 years.”—Jack Beermann, Philip S. Beck Professor of Law, Boston University“Cass Sunstein never disappoints. This book will make everyone stop and think about the separation of powers. Progressives will like his critique of the ‘Grand Narrative’ of separation of powers that is now dominating the Supreme Court. Conservatives and libertarians will be intrigued by his description of how ‘partyism’ is weakening the separation of powers that is essential to protecting our liberty. A good read.”—Randy Barnett, Patrick Hotung Professor of Constitutional Law, Georgetown University Law Center; Faculty Director, Georgetown Center for the Constitution; author of A Life for Liberty“As the separation between our branches becomes increasingly blurred, and the executive sweeps more powers into its gaping maw, Cass Sunstein’s terrific, trenchant, and timely tome becomes required reading. Read it now and relearn why we should all bet on the separation of powers.”—Saikrishna Prakash, James Monroe Distinguished Professor of Law, University of Virginia“Cass Sunstein writes from long experience; he has thought about these questions for decades. Clear, earnest, and incisive, this book is an advanced introduction to some of the most important ideas in American constitutionalism.”—Jack Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School“Both timely and timeless, Separation of Powers offers a trenchant analysis of a key structural feature of the U.S. government aimed at protecting against tyranny. Anyone concerned about the growth of unchecked executive power in the United States will benefit from reading this book.”—Cary Coglianese, Edward B. Shils Professor of Law and Professor of Political Science, University of Pennsylvania; Director, Penn Program on Regulation