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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[1] This is why, for example, in Federalist Papers
No. 47, Madison quoted Montesquieu to say that the Frenchman ‘did not mean that
these departments ought to have no PARTIAL AGENCY in, or no CONTROL over, the
acts of each other’; and this is why (perhaps in the most quoted paragraph of
the famous Federalist Papers No. 51) Madison spoke of the need to ensure
that each branch of government could resist encroachments of the others; and,
in that sense, that ‘ambition must be made to counteract ambition’.
[2] I feel about Sunstein and deliberative democracy in
constitutional theory something similar to what I feel about Philip Pettit and
the principle of non-domination in political philosophy. For Pettit, it is also
essential to say that a central and controversial principle of his
theory—freedom as non-domination—actually has strong historical support.
According to him, this controversial idea of freedom finds support in ‘the
Roman Republic,’ in ‘medieval and Renaissance Italy,’ in ‘Europe and Great
Britain’ in the 17th and 18th centuries, and eventually in ‘Revolutionary
America’ (Pettit 2012). However, this fundamental claim is highly disputable,
and the proclaimed historical anchor (which could provide solidity to this
assertion) is difficult to sustain in light of the actual historical data we
have.