Separation of Powers: How to Preserve Liberty in Troubled Times -- A Critical Reading

Guest Blogger

Roberto Gargarella

Separation of Powers. How to Preserve Liberty in Troubled Times, by Cass Sunstein. (The MIT Press, 2026)

Introduction

Separation of Powers is the latest book published by Cass Sunstein (I am writing this review in March 2026). As expected, the book, which deals with a well-chosen and highly relevant subject, brings together many of the virtues and problems that distinguish Sunstein’s most recent work. Let me begin with the virtues: it is a clear, didactic book, written by a brilliant author, full of ideas, and one of the most knowledgeable about the technical literature and jurisprudence of our time. To all this, we can add another advantage, visible in the author's latest works, which is that Sunstein incorporates into his qualified approach the experience and knowledge accumulated during his time in public service (Sunstein served as administrator of the White House Office of Information and Regulatory Affairs (OIRA) between 2009 and 2012). Regarding its problems, I will limit myself to pointing out one particular difficulty, because it underlies this entire new book. Sunstein has been developing a peculiar mode of argumentation, in which he asserts a thesis or describes a fact, only to later begin qualifying his assertions until he shows the plausibility of the contrary thesis or description. This form of ‘back-and-forth’ argumentation reaches an extreme in this book. This is to the point that what could be thought of as the very central thesis of the entire book, that is a statement about the fundamental value of the separation of powers -against the Schmittian defense of a discretionary executive- is refuted on the very last page of the text, where he states: ‘Nothing in this book can be counted as an objection to the grant of a high degree of discretionary power to the president’ (p. 128). For my taste, too much.

Let me now critically examine some of the central points of this timely book, which I would like to comment or challenge. I will divide my study into two parts: the first mainly focused on the issue of democracy, and the second mainly related to the Executive Branch.

I.                DEMOCRACY

Separation of powers and checks and balances. The first thing I would mention is that I find striking that a book entirely devoted to thinking about the fundamental principle of the separation of powers, does not take the trouble to better define its object of study. Sunstein puts forward some interesting theses (for example, that the separation of powers is an ‘umbrella concept’ that includes six types of separation of powers, p. 4), but he does not substantiate or justify his peculiar approach to the subject: these are postulates or categorical statements, which receive not much additional support. I understand that Sunstein wants, in his own way, to focus primarily -or almost exclusively- on the analysis of the separation of powers. However, two things strike me as particularly noteworthy. First, it is surprising that a book that is dedicated to study the principle of separation of powers does not pause to examine the relationship between that principle and the notion of ‘checks and balances.’ Much more than that: the crucial principle of checks and balances—which represents nothing less than the specific way in which American constitutionalism intervened, modified, and reconstructed Locke's proposal of the separation of powers—is only mentioned in passing, three times throughout the entire book (on pages 5-6, 121, and 152).

The omission is surprising, given the current American debate on the subject (i.e., the debate about the ‘major questions doctrine’ and the ‘exclusive’ powers of each branch of government). That discussion needs to closely engage with the principle of ‘checks and balances,’ which requires each branch to partially assume some of the powers of the other branches of government. Much more than that: for the current state of American jurisprudence, with its “originalist” roots, it seems crucial to recognize that one of the main institutional innovations of the ‘framing period’ was the abandonment of the radical English thesis on the strict separation of powers (a thesis such as that defended by Thomas Paine in Pennsylvania, Paine 1989) and its replacement by another alternative that promoted partial overlap, permanent interrelation and mutual control between the different branches.[1] This innovation was masterfully explained by Maurice Vile (another author who, strangely, is not cited here) in his classic book on the separation of powers (Vile 1967).

The use of history and deliberative democracy. Although for several decades I have advocated a normative conception akin to dialogic democracy (influenced, at least in part, by Cass Sunstein himself, in Chicago), I find problems with the ways in which Sunstein grounds it (Gargarella 2022). In particular, I would object to the historical anchor that the author seeks to give to the deliberative conception. The notion of deliberative democracy seems so central and foundational to his proposal that, from the very beginning of the book, Sunstein states that ‘consistent with the founding conception of republicanism, the Constitution and the system of separation of powers aimed to create a deliberative democracy—one that combined accountability with reason-giving in the public domain’ (pp. 2 and 3). Of course, this issue, like most of the topics addressed in this work (and this poses a problem for the critical analysis of the book), has already been presented by the author in a variety of previous works, and for a long time (in particular, Sunstein 1993). Sunstein supports the idea that the ‘founding fathers’ sought (something like) a deliberative democracy, resorting to isolated quotes from Madison or Hamilton that are not enough to challenge the current understanding of the matter. I am referring to the common assumption that politicians such as Madison subscribed to (something like) a “pluralist” conception of democracy (Dahl 1956). In other words, the “founding fathers” seemed to subscribe to a conception of democracy that theorists in the field, nowadays (do not identify with, but rather) contrast or oppose to the deliberative ideal (Held 1987). In any case, it is not my interest here to dispute that question (did the ‘founding fathers’ subscribe to a deliberative ideal? really?). I would just limit myself to point out that Sunstein should make a greater argumentative effort before simply asserting this controversial point (that the “founding fathers” wanted to promote something like a deliberative democracy). On the other hand, I would like to suggest that this is not a minor issue, because, by claiming such a pedigree for his position, Sunstein puts his critics in an uncomfortable position: How can one criticize a particular institution or practice that, according to the specialist, was wholeheartedly embraced by the ‘founding fathers’? In short, I see a problem in the way Sunstein (once again) puts history at the service of his theory and, therefore, in the way that narrative is then used in the argument.[2]

An elitist reading of deliberative democracy. Another problem I see in the book, related to the previous ones, has to do with the normative theory of deliberative democracy —the deliberative conception—that serves as its foundation. Here, once again, we face a conceptual problem: we find a notion that is called upon to play a central role in Separation of Powers —deliberative democracy— but which is not properly defined or characterized (see also Sunstein 1988, 1991, 1993). This obviously implies a significant difficulty, particularly when, as we have seen, the historical basis offered in support of the idea of deliberative democracy is very weak. Beyond this, the indications presented in the book about how deliberative democracy is conceived refer, in my opinion, to an unattractive, elitist position. Sunstein speaks of a conception that combines ‘accountability with reason-giving in the public domain’ (p. 3). This approach is curious because, on the one hand, it shows a clear Habermasian reminiscence, through its emphasis on the notions of ‘reason giving’ and ‘public domain’ (although Jürgen Habermas is not cited in the book, as he was in the author's previous works). However, this same notion sidesteps the core of Habermas's definition on the subject, which refers to the intervention of ‘all those potentially affected’ (Habermas 1996, 1998). This omission is not explained in the book, but it is understandable: Sunstein is ultimately subscribing to a Burkean or elitist notion of deliberation, as characterized by James Fishkin, one of the academic authorities on democratic theory (Fishkin 2009, 2011). Fishkin speaks of “elite deliberation” when it focuses exclusively on the process of “reason-giving” by experts, committees of specialists, technical groups, etc. Meanwhile, Fishkin reserves the concept of “deliberative democracy” for those cases in which the process of exchanging reasons reaches or seeks to reach, as far as possible, “all those potentially affected”. In conclusion, I see a problem in Sunstein's lack of a precise characterization of “deliberative democracy”, and I believe that this problem is exacerbated because, in fact, he ends up mistakenly calling “deliberative democracy” what theorists such as Fishkin (and I) would call “elite deliberation”. Of course, any author can embrace the normative foundations they prefer—we are not dealing here with a merely ‘ideological’ critique. The problem is that, here, it is not clear what this view of democracy means and implies, or where it comes from or where it is grounded. Beyond what has been said, it should be emphasized that Sunstein's conception of democracy refers to a notion that is controversial, at least within contemporary theory, but which is called upon to play – as we shall see shortly – a fundamental role in the rest of the book's argument (i.e., supporting, for example, the discretion of the executive branch, based on ‘deliberative’ reasons that the traditional dialogical theory—that of Habermas or Carlos Nino—would challenge). Ultimately, what is at stake here is a major problem, one that I cannot address as I would like to (a problem that, in truth, affects much of contemporary doctrine) namely the collapse of democracy in constitutionalism (or in the three branches of government). Like so many contemporary authors, Sunstein seems to conflate the ideas of constitutionalism and democracy (Ginsburg & Huq 2018).

II.              THE EXECUTIVE BRANCH

Epistemic democracy and the executive branch (‘by far the most knowledgeable’). Seeking to continue the Habermasian legacy, many of us have advocated for an epistemic justification of democracy (Nino 1991, Cohen 1986, Gargarella 2022). This view takes as its starting point the notion, proposed by John Stuart Mill, that each person is ‘the best judge of their own interests’ (Mill 1859, Dahl 1956). Hence the value of a non-elitist, but deliberative, conception of democracy, which seeks to consider, as much as possible, the ‘point of view of all those potentially affected’ (Habermas 1996). For the epistemic conception, then, the justification of democracy is linked to its capacity for achieving impartiality -which is associated with the inclusion and processing of the diverse points of view existing in the community. From this perspective, a process of broad public discussion has greater ‘epistemic power’ than a legislative discussion; just as a legislative discussion has greater “epistemic power” than a unilateral decision by the executive. This is simply because such processes of inclusive deliberation reduce the risks of partiality/discretion or, in other words, maximize the chances of deciding impartially.

However, as anticipated, the epistemic view described is not the conception of democracy implicit in the Federalist Papers or in Sunstein's works, which, as we have said, hold a rather opposite view, that of elitist deliberation. From the latter perspective, then, the above equation is reversed. Now, the executive branch (a single-person political branch that, to begin with, does not structurally incorporate the views of the country's entire geographical diversity, as Congress does) is described in a way that transforms its manifest disadvantages into virtues of its functioning. By taking this perspective, for example, Alexander Hamilton was able to say of the President that: ‘a single well-directed man by a single understanding, cannot be distracted by that diversity of views, feelings and interests, which frequently distract and warp the resolutions of a collective body’ (Federalist Papers n. 76). Similarly, and despite recognizing the risks of presidential discretion (‘the most dangerous branch’), group polarization, the “deep state”, or the ‘happy talk’ to which the President is subjected (chapter 6), Sunstein argues forcefully in his book that ‘the executive is by far the most knowledgeable’ (p. 37), or that ‘the informational advantages of the executive branch are an essential part of thinking about the contemporary system of separation of powers’ (p. 40).

Both Sunstein's assertions and the way he supports them are highly controversial. In particular, the way he (dis)qualifies the epistemic abilities of Congress, after extolling those of the President, seems somewhat astonishing (at least from my perspective). He acknowledges that members of Congress can also obtain information through hearings or by consulting experts. However, he adds, ‘members of Congress are also generalists, their staffs are relatively small, and they have to focus on re-election’ (p. 45). And what about the President? -I would ask him. Are Presidents not particularly interested in the next elections (or in a possible re-election)? Having pointed this out (I do not think it is right to resist certain interventions by Congress on the grounds of defects that, in the case of the Executive, seem to operate as virtues), I would say that, beyond the possibilities of surrounding oneself with experts and specialists, the differential value in favor of open public discussion, or legislative discussion, lies in the fact that those settings help us to become exposed to the greatest possible diversity (geographical, ideological, etc.).

That is why, for major decisions (and also for major questions), the inclusive discussion praised by Habermas has great (epistemic) advantages. Let us imagine, for example, that the decision to go to war against state X is being debated. It will make all the difference in the world whether the decision is made by a single executive (even surrounded by multiple technical teams) or by a body with representatives from all parts of the country. Only the latter alternative allows us to know what they think about it, for example, the parents who will be forced to send their children to die on the battlefield. Or let us think, to take a closer case, of COVID-19 and the pandemic. Then, the large technical teams convened by the executive (doctors, epidemiologists, etc.) came to play a central role in the critical decisions made (lockdown, etc.), which resulted—unsurprisingly—in unduly biased options that tended to simply dismiss crucial issues such as, for example, the consequences that long lockdown could have on the mental health of minors; or the significance that ‘lockdown and handwashing’ mandates could have on poor populations living in overcrowded conditions or without access to water (Gargarella 2020a, Gargarella 2020b) . Ultimately, (deliberative) democracy sees expert discussion, which may eventually favor the executive branch at its discretion, as more of a problem than a virtue. Deliberative democracy therefore unreservedly prefers and favors inclusive processes of public discussion.

The real world of the separation of powers: institutional motivations and incentives. The last point I want to refer to has to do with Sunstein's appeals to the ‘real’ functioning of institutions. In the book, for example, Sunstein is keen to make it clear that ‘we are speaking of the real world of the separation of powers’ (p. 46). Of course, all of us (even those who, like me, prefer to work within the strict framework of a ‘regulatory ideal’) recognize the value of a “contextual” approach to the issue (one that is sensitive to time and space). However, as always, everything ultimately depends on the ‘how’—how that ‘contextual’ analysis is carried out.

In general terms, I would say that American legal doctrine shows, among its virtues, a tendency to think ‘contextually.’ However, this healthy tendency often represents also a risk: that of theory becoming locked into (or fascinated by) certain ‘grand narratives’ (and ‘counter-narratives’) with historical roots. I would mention two of these “grand narratives,” in particular. On the one hand, part of the doctrine, interested in defending (certain modes of) judicial review has become anchored or trapped within the “grand narrative” of the Warren Court. It therefore assumes that there are reasons to think of an exercise of judicial function that insists on or revives the forms of judicial review typical of a specific period in history—that of the Court led by Earl Warren, which became a champion of civil and political rights (Fiss 1976, Ely 1980). On the other hand, another part of the doctrine has remained trapped within the ‘grand narrative’ of the Roosevelt presidency, the New Deal, and rulings such as Chevron, and continues to think of constitutional law as if it were possible to reproduce, at this time, the type of regulatory state that was characteristic of the early 20th century (Sunstein seemed, for a long time, to subscribe to this narrative, i.e., Sunstein 1990). In this book, Sunstein presents us another ‘grand narrative,’ which is, in a way, the opposite of the previous one. It would be (what I would call here) a counter-narrative (rooted in the old doctrine of non-delegation, and anchored today in the support of the major questions doctrine, chaps. 9 and 10) that tells us that the main constitutional problem of our time is that ‘after the New Deal, the United States has seen the rise of a “headless fourth branch”’ (p. 60) -a counter-narrative that makes ‘an effort to restore a (perceived) status quo ante’ (pp. 59-60).

However, Sunstein's valuable vocation, usually exhibited in thinking about constitutional law in a ‘situated’ manner and linked to the real world, is expressed in this book in a way that I consider exaggerated or inappropriate. Perhaps because it starts from theoretical assumptions that are now more provisional or “movable”, or because it approaches constitutional law in a way that is too closely tied to the historical context, Sunstein's theory becomes, in the end, too dependent on the actual practice. Sunstein’s approach seem to find difficulties for distancing itself from the practice and then, consequently, to subject it to criticism. Hence the tendency, so common in this book, to make a strong theoretical or empirical statement, only to immediately refute or dilute it in the light of ‘real practice’. Thus, speaking of the executive branch, Sunstein can conclude his analysis (alluding to Trump II and) by saying that ‘if the president really were X, then the picture I have offered here would not be realistic’ (p. 56); or, referring to the current, ultra-conservative Supreme Court, he can conclude his analysis by saying that ‘on those assumptions, judicial review would not be a good idea’ (ibid.). The greatest risk is that his next step will be Hegelian, and Sunstein will come to argue, as Hegel did in his Philosophy of Right, that ‘what is rational is real, and what is real is rational’ (Hegel 2012).

Conclusion

In the preceding pages, I have presented and critically discussed some of the central points of Cass Sunstein's new book, Separation of Powers. Like all his books, this one stands out for the creativity, originality, and knowledge of its author, who today enriches his studies with a Hartian ‘internal point of view’: that of the doctrinaire who was able to look at the “regulatory state” from within. In this review, I was interested in focusing on some of the various problems I found in the text, in the hope that such comments will serve to continue this long and enlightened conversation to which Sunstein has been inviting us for so many productive decades.

Roberto Gargarella is Senior Researcher at CONICET (Argentina) and Visiting Professor at the University Pompeu Fabra, Barcelona. You can reach him by e-mail at robert@utdt.edu

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