Six Ways the Constitution Keeps Leaders in Check with Cass Sunstein (#289)

What this episode is about

The discussion explains how the U.S. Constitution uses multiple layers of separation of powers to prevent tyranny and protect liberty, emphasizing that there are six distinct, interacting branches rather than a single, isolated system. It highlights how this complex balance—spanning executive, legislative, and judicial functions—ensures self-government and accountability in American governance.

Key takeaways

• Six separations, not a lonely 'sixth sense'—the distributed power prevents tyranny by design, not wishful thinking.
• Courts don’t legislate; they safeguard self-government, keeping life-tenured independence from political winds.
• Executive overreach feared? Turns out the founders distrusted the legislature more; the real danger is concentration.
• Checks and balances are active brakes, separate from the static framework of separation—they constrain, not replace.
• Legislative power to make laws anchors freedom; presidents can frame policy, but Congress finalizes the text.

Who speaks in this episode?

• Lynn (Guest) · 4 min speaking
• Cass Sunstein (Guest) · 15 min speaking

What is discussed, and when

1. 0:00 – 3:00: Cass Sunstein, separation of powers, Separation of Powers, Liberty
2. 3:00 – 6:00: separation of powers, checks and balances, Separation of Powers, Constitution of the United States
3. 6:00 – 9:00: separation of powers, Constitution of the United States, checks and balances, Separation of Powers
4. 9:00 – 12:00: Emergency Powers, separation of powers, Separation of Powers, Communism
5. 12:00 – 15:00: separation of powers, Separation of Powers, self-government, Liberty
6. 15:00 – 18:00: self-government, Constitution of the United States, Donald Trump, Department of Justice
7. 18:00 – 19:18: separation of powers, Separation of Powers, Anthony Lynn

Notable quotes from "Six Ways the Constitution Keeps Leaders in Check with Cass Sunstein (#289)"

• Including books with Nobel laureates Danny Conaman and Richard Thaylor. From 2009 to 2012, Cass served under President Obama as the administrator of the Office of Information and Regulatory Affairs.

  about Cass Sunstein · at 0:14

• Protect first and foremost in their account liberty but secondarily and not like a distant second the conditions for self-government and what they did with the separation of…

  about self-government · at 1:56

• Of fascist or communist systems, the combination of judicial and executive authority is a very bad thing from the standpoint of liberty. The legislature can't execute the laws.…

  about Liberty · at 3:47

• And how is separation of powers different from checks and balances? Many people conflate them.

  about checks and balances · at 5:11

• Article 1, section one. Amazing. That's how it starts.

  about Constitution of the United States · at 7:52

• Institutional objection to the president a issuing executive orders and b having zars. President Trump has issued a very large number of executive orders and the people who…

  about Donald Trump · at 9:08

• If separation of powers slows things down, what's the danger of speeding things up? So fascists and communists often don't like separation of powers much because they think…

  about separation of powers · at 11:02

• First and foremost is that the separation of powers includes six ideas and each of them is something to honor and celebrate, not one idea. The second idea is that the most important of the.

  about Separation of Powers · at 17:56

Who and what is mentioned in this episode?

People

• Cass Sunstein — Person · Main guest · 2 mentions · first at 0:00
  He explains the constitutional logic of separation of powers, contrasts it with checks and balances, and discusses modern risks like executive overreach and emergency powers.
• Anthony Lynn — Person · Host (as named in transcript) · 2 mentions · first at 0:55
  The interviewer guiding the discussion; Sunstein thanks 'Lynn' at the end, indicating the host's name.
  The EPA to Homeland Security and the Department of Agriculture. His new book is Separation of Powers. Cass, it's great to be back with you. Thanks so much for joining us.
• Donald Trump — Person · Referenced political figure · 1 mention · first at 16:25
  Used to contrast reactions to executive orders and to discuss presidential immunity after the Supreme Court's 'Trump case.'
• Barack Obama — Person · Referenced political figure · 2 mentions · first at 0:20
  Used as a case study for how public attitudes toward executive power and executive orders vary depending on who holds office.
  Crazy with all the executive orders. And then there was a flurry, this is kind of ancient history now of complaints that President Obama had created ZARS and that was, we don't…
• James Madison — Person · Referenced founder / theorist · 1 mention · first at 1:27
  Cited for the warning that accumulation of powers in one person produces tyranny and for emphasizing separation as a safeguard in constitutional design.
  There's something I think more interesting. I'll start with pedestrian, which is that James Madison said that accumulation of powers in a single person would produce tyranny.…
• Daniel Conaman — Person · Referenced collaborator (as stated by host) · 1 mention · first at 0:14
  Mentioned as a Nobel laureate co-author with Cass Sunstein, used to emphasize Sunstein's prolific and high-profile collaborations.
  Legal scholars in the world. He's the author or co-author of dozens of books including books with Nobel laureates Danny Conaman and Richard Thaylor. From 2009 to 2012, Cass…
• Richard Thaylor — Person · Referenced collaborator (as stated by host) · 1 mention · first at 0:14
  Mentioned as a Nobel laureate co-author with Cass Sunstein, reinforcing Sunstein's influence and interdisciplinary reach.
  Legal scholars in the world. He's the author or co-author of dozens of books including books with Nobel laureates Danny Conaman and Richard Thaylor. From 2009 to 2012, Cass…

Books & papers

• Separation of Powers — Book · Primary referenced work · 11 mentions · first at 0:52
  Sunstein's new book frames the discussion, especially the idea that there are 'six separations' and the modern importance of limiting executive interpretation and lawmaking.

Companies & orgs

• Department of Justice — Organization · Referenced executive-branch institution · 2 mentions · first at 0:46
  Appears as an example of agencies overseen via OIRA regulatory review and as an example in the presidential immunity discussion (oversight of DOJ).
  President has absolute immunity for things that are in his core authorities, including oversight of, let's say, the Department of Justice. can't make it what he says to the…
• Department of Transportation — Organization · Example federal agency · 1 mention · first at 7:24
  Used to illustrate that executive agencies can regulate only when Congress has granted authority (legislative permission).
  Going to have some exceptions, but broadly speaking, needs to have legislative permission. So, you can't have a Department of Transportation regulating road safety or an Occupational Safety and Health Administration regulating occupational.
• Occupational Safety and Health Administration — Organization · Example federal agency · 1 mention · first at 7:29
  Used as a concrete example of delegated authority: OSHA can regulate only if Congress has authorized it.
  Have a Department of Transportation regulating road safety or an Occupational Safety and Health Administration regulating occupational safety and health unless Congress has…

Concepts & topics

• separation of powers — Concept · Core topic · 11 mentions · first at 0:55
  The episode centers on what separation of powers means, why the founders designed it, and how it protects liberty and self-government through six distinct separations.
• Constitution of the United States — Concept · Foundational framework · 3 mentions · first at 4:23
  Serves as the legal basis for allocating legislative power to Congress, structuring elections, and constraining executive action absent legislative authorization.
• self-government — Concept · Core value / outcome · 6 mentions · first at 2:02
  Explained as a key purpose of separation of powers: keeping lawmaking with elected bodies and preventing an 'elected monarch' from escaping ongoing control.
• Liberty — Concept · Core value / outcome · 3 mentions · first at 1:58
  Presented as the founders' primary aim for separation of powers—preventing tyranny and protecting individuals from combined prosecutorial and adjudicative power.
• checks and balances — Concept · Core topic (contrast term) · 3 mentions · first at 5:13
  Distinguished from separation of powers: checks and balances are mutual constraints (veto, impeachment, judicial review) beyond mere division of functions.
• Emergency Powers — Concept · Core topic (modern stress test) · 3 mentions · first at 9:39
  Discussed as a contested area: the Constitution clearly allows repelling sudden attacks, while broader emergencies are legally disputed and often depend on statutes.
  Authority to respond? People dispute that. The safest answer is rarely if ever. Then there are statutes that give the president some emergency authority to respond to crisis so…
• ZARS — Concept · Political/administrative controversy reference · 1 mention · first at 8:58
  Raised as an example of institutional anxiety about executive branch 'czars' and how such concerns shift depending on the president.
  Crazy with all the executive orders. And then there was a flurry, this is kind of ancient history now of complaints that President Obama had created ZARS and that was, we don't…
• Fascism — Concept · Comparative reference · 1 mention · first at 11:20
  Invoked to illustrate how regimes that concentrate power often reject separation of powers to enable rapid action, at the cost of liberty.
  Much because they think they need to respond quickly. And while yours truly has no enthusiasm for fascism or communism, it's a point. I had a an acquaintance who was in Russia…
• Communism — Concept · Comparative reference · 1 mention · first at 11:22
  Paired with fascism as an example of systems where combining executive and judicial authority undermines liberty and encourages speed over safeguards.
  If separation of powers slows things down, what's the danger of speeding things up? So fascists and communists often don't like separation of powers much because they think…

Places & events

• Russia — Place · Comparative governance example · 1 mention · first at 11:26
  Used in an anecdote about Vladimir Putin closing streets to show how unconstrained executive power can 'speed things up' in ways U.S. presidents cannot.
  Respond quickly. And while yours truly has no enthusiasm for fascism or communism, it's a point. I had a an acquaintance who was in Russia and had a meeting with President…

Full transcript with timestamps

0:00 Today I'm excited to be with Cass Sunstein. Cass is a professor at Harvard Law School and one of the most cited legal scholars in the world. He's the author or co-author of dozens of books including books with Nobel laureates Danny Conaman and Richard Thaylor. From 2009 to 2012, Cass served under President Obama as the administrator of the Office of Information and Regulatory Affairs. It's not a sexy sounding job, and it's not a job that most people have ever heard of, but it sits at the center of American power. He reviewed and oversaw federal regulations across the executive branch from the Justice Department and the EPA to Homeland Security and the Department of Agriculture. His new book is Separation of Powers. Cass, it's great to be back with you. Thanks so much for joining us.

1:02 It's great to see you and I am very grateful to you for having me. Cass, the founders obsessed over separation of powers. What were they afraid would happen if it failed?

1:15 There's a kind of a pedestrian answer that's extremely unoriginal. And then there's something I think more interesting. I'll start with pedestrian, which is that James Madison said that accumulation of powers in a single person would produce tyranny. So I'm speaking for Massachusetts and that's where the American Revolution kind of started and the idea of a monarchical authority was something that the founders sought to avoid and good students of Montescua they thought that separating the executive legislative and judicial authority was necessary to protect first and foremost in their account liberty but secondarily and not like a distant second uh the conditions for self-government and what they did with the separation of powers and this is the I hope the less pedestrian thought is six different separation of powers it's not the separation of powers it's six separation of powers and the

2:21 separation of powers is a they not an it it's a little dinner party rather than a solo endeavor and that I think is the genius of our constitutional structure it's something of maybe a little more importance today than let's just call it the day before yesterday, but it's something of enduring importance. Six separations of powers

2:47 in plain terms, what is separation of power actually mean? And what does it do for ordinary people?

2:56 So, let's get at the six, shall we? Courts can't make law. And that for ordinary people means that we get to govern ourselves and that people with life tenure and guarantees of independence they don't tell us what the law is. So courts can't make law that ensures a kind of capacity for self-government. Second courts can't execute the laws. That's extremely important because we have an executor of the laws that is the executive branch which has incentives and safeguards if things are working well and independence which means if the judge is mad at you the judge can't go putting you in jail.

3:40 There's a separation between law makingaking and execution of the laws. That's really important. And if we think of fascist or communist systems, the combination of judicial and executive authority is a very bad thing from the standpoint of liberty. The legislature can't execute the laws. That's very important. It means that you have two safeguards before you get in trouble. The legislature has to authorize the executive to act and then the executive has to decide independently to go against you. The legislature can't interpret the laws. That's very important because the legislature doesn't have neutrality with respect to the meaning of let's say the constitution of the United States. So we need a different body so as to prevent self-interested interpretation. The main event, which is the executive can't interpret the laws or make the laws, is something I'm just going to put in bold letters, and it's going to be like an

4:41 airplane in the sky. And we can talk more about it if we like, but the framers got one thing wrong. They were most scared of the legislature. They should have been most scared of the executive. They did something right, which is they forbade the executive from being the authoritative interpreter of the law. That's a separation of powers. and they prohibited the executive from making the law. That's the separation of powers also. That's our little family of six friendly diners.

5:11 And how is separation of powers different from checks and balances? Many people conflate them.

5:18 What Madison emphasized in talking about how the constitution protect against tyranny was separation. So the executive doesn't make the law, the executive doesn't interpret the law, the legislature doesn't execute the law, the legislature doesn't interpret the law. That's separation of powers. Checks and balances means that each gets to constrain the other independent of the mere fact of separation. That might sound like gobbledygook. You can't have a law without presidential participation through the opportunity to veto. the head of the executive branch can be impeached by the legislature. That's a check. The system of checks and balances involves some mutual constraints that is independent of separation. You can think of the fact that the court can strike down laws as unconstitutional as both separation of powers and checks and balances. Separation meaning it's a different body and check meaning the

6:22 court gets to say to Congress sorry but the first amendment stands in your way.

6:27 The Constitution says that all legislative power the power to make laws belongs to Congress. What does that mean in practice and why is that so essential to preserving freedom? If um a legislature is around, and it is, it gets to say what the law is, and the president can't do that. So, if the president wants the Clean Air Act to say something very different, it wants the Clean Air Act, let's say, to be scaled back or to be much more aggressive, Congress does that. If the president wants, let's say, there to be some law about cryptocurrency that goes in one or another direction, Congress has to do it. The president can't get it to happen. So any exercise of authority by the president, this is going to have some exceptions, but broadly speaking, needs to have legislative permission. So, you can't have a Department of Transportation regulating road safety or an Occupational Safety and Health

7:30 Administration regulating occupational safety and health unless Congress has told you to. You have to ask Congress for permission. Now, recent presidents and not so recent presidents have occasionally transgressed that limitation on authority. Nonetheless, the constitutional restriction is clear. Article 1, section one. Amazing. That's how it starts.

7:56 Why do you think so many people today seem comfortable with power being concentrated in one strong leader?

8:03 People's judgments about who has power often are framed as judgments that are enduring about institutions and who can be trusted, but they're often in fact judgments about the person who would exercise the power. So under President Obama, I noticed this is something I don't know whether to be amused by or a gasast that under President Obama a lot of President Obama's critics were complaining about all the executive orders he issued and because I was there I spent a lot of time on it and he actually didn't issue an unusually high number of executive orders. There's a national debate. So many executive orders from Obama with the Democrats saying not so many not so bad and Obama's critics saying he's gone crazy with all the executive orders. And then there was a flurry, this is kind of ancient history now of complaints that President Obama had created ZARS and that was, you know, we don't have ZARs

9:05 in the United States. Now this was all institutional objection to the president a issuing executive orders and b having zars. President Trump has issued a very large number of executive orders and the people who criticize President Obama for a much smaller number of executive orders don't seem alarmed at the Trump executive orders and vice versa. And the founders were very wary of that. They wanted institutional judgments to outrun this week's judgment about particular people.

9:39 Cass, emergency powers are meant to be temporary. What are the president's emergency powers and what stops them from becoming normal?

9:50 Okay. So, under the constitution, there's a question whether the president has emergency powers. There's one that the president clearly has which is to repel a sudden attack. So Congress has the authority to declare war. That's a precondition for war making. If we are attacked, God forbid today or we're about to be attacked. The president can act on an emergency basis. That was described in the constitutional convention. Whether the president has any other emergency powers under the constitution is most unclear. That's an unresolved question. If there's some economic or health related horror, does the president by virtue of having the executive power have authority to respond? People dispute that. The safest answer is rarely if ever. Then there are statutes that give the president some emergency authority to respond to crisis so long as it's shortterm and so long as it's got a factual predicate. There aren't a lot of

10:58 those, but there are some in the domain of economics and health. If separation of powers slows things down, what's the danger of speeding things up? So fascists and communists often don't like separation of powers much because they think they need to respond quickly. And while yours truly has no enthusiasm for fascism or communism, it's a point. I had a an acquaintance who was in Russia and had a meeting with President Putin and Putin's schedule was very crowded and he was late for the meeting and my friend said that she couldn't make the meeting because she had to fly back to the United States and Putin's meeting was too late. And when she went in to see Putin, she said, "I'm so sorry. I have to leave right now. We can't do the meeting because I have to make my flight." And he said, "You'll make your flight." And she said, "How am I how am I going to make my flight?" And he said, "I'll make sure you make your flight."

11:59 She said, "How can I do that? It's, you know, there's traffic. It's far away and I can't get there." And he said, "I'll close all the streets. I'm going to close all the streets. You can just go. You won't have any traffic. You'll be there ahead of time." Okay? So, our presidents can't do that. That's not exactly an emergency of the first order. But if you slow things down, it might be the president can't do anything about school loans, can't do enough about a sudden economic downturn, can't do enough about immigration, can't do enough about violence in the streets.

12:36 There are any number of things that the separation of powers potentially forbids a necessary response to. Now, the bet is that Congress will either have previously or will now authorize relevant presidential action. So, the right way to think of it is the separation of powers is a bet. There's very good reason to think it's the right bet. But your question correctly points to the fact that any bet can go sour.

13:07 What do we lose when separation of powers weakens? freedom first and self-government second. So the freedom I think is intuitive that if you know the legislature can execute the laws or interpret the laws then you and I are vulnerable. If the executive can act without a court then you and I are definitely vulnerable. So, the separation between executive and judicial authority, at least today, that's my favorite of the six. That one I put first. The power of the prosecutor is terrifying, though essential. If the power of the prosecutor includes the power of adjudication, then any one of us or someone we know can end up in prison and be shattered.

13:59 and that there's no independent entity to call to account. So that's what we lose liberty. Self-government is less obvious because if you have, let's say, an elected monarch, why don't you have self-government? The absence of checks on that elected monarch means that in practice, the capacity for self-governance will be severely compromised. the person isn't on an ongoing basis subject to electoral control. No one is. And if the separation of powers isn't in play, that person can go off in all sorts of directions that defy the will of the people.

14:44 What is the danger of calling for insurrection and cancelling midterms? What are the consequences? Um, if you cancel midterms, this lawyer immediately wonders what's the legal authority for that. And there's not likely to be an answer to that question. If you cancel the midterms, you're cancelelling something which is fundamental to our system of constitutional self-government. It's inconsistent with the text of the constitution which calls for election of the house every two years and actually election of senators every six years. So there's that. Then we would get less lawyerly and think that we're cancelling the outcome of something which is fundamental to our system in a way that makes self-government in tatters. So that's pretty unspeakably horrifying to cancel the midterms.

15:51 Insurrection, this is a term. Its application to any set of events should be approached with caution and humility and fear and trembling. And to wield the word insurrection would be not forbidden. There could be an insurrection but I'm looking out the window and not really seeing it.

16:18 How do you see presidential immunity? Okay, so if one is a treatis writer, one would say that under the Trump case, the president has absolute immunity for things that are in his core authorities, including oversight of, let's say, the Department of Justice. can't make it what he says to the attorney general a criminal offense. Pardon power is something where there's absolute immunity. Then there are other authorities which are if they're within his general presidential job but not in the core. They are presumptive immunities where you can overcome the immunity showing that holding him subject to let's say criminal penalty after he's president wouldn't compromise his ability to perform his job. That's kind of the treatis writing. So the music of the Supreme Court's decision in the Trump case is it's going to be really hard to hold the president criminally accountable for anything. But outside of the core, it's not

17:24 impossible. That's the treatise. The law reviewview article, let's call it, or the op-ed, the op-ed would say that the Supreme Court was very adventurous in establishing such broad immunity from the president. The more inflammatory way to say it, which I subscribe to, is the court made it up and this was not a good moment for Chief Justice Roberts, whom I generally admire. pass. What are the three takeaways you'd like to leave the audience with today?

17:56 Uh, first and foremost is that the separation of powers includes six ideas and each of them is something to honor and celebrate, not one idea. The second idea is that the most important of the six separation of powers in the modern era denies the executive the power to make the law. And the second of the two we celebrate most denies the executive the power to interpret the law. That courts have the power to interpret the law. And whether you like donkeys or elephants or Biden or Trump, those things deserve the firmst imaginable endorsement. The third takeaway is the idea of a unitary executive, whether you like it or don't like it, means only that the executive is in control of the executive branch. It doesn't mean that the executive is in control of the government's apparatus. Even the president of the United States generally requires legislative authorization to do anything at all.

19:06 Thank you, Cass. I've enjoyed our conversation and I especially enjoyed your book, Separation of Powers. Well,

19:13 thanks, Lynn. Good to see you.

Questions about this episode

Who speaks in "Six Ways the Constitution Keeps Leaders in Check with Cass Sunstein (#289)"?

Lynn (Guest), Cass Sunstein (Guest).

What is "Six Ways the Constitution Keeps Leaders in Check with Cass Sunstein (#289)" about?

The discussion explains how the U.S. Constitution uses multiple layers of separation of powers to prevent tyranny and protect liberty, emphasizing that there are six distinct, interacting branches rather than a single, isolated system. It highlights how this complex balance—spanning executive, legislative, and judicial functions—ensures self-government and accountability in American governance.

What is mentioned in this 3 Takeaways episode?

21 people, works and ideas are mentioned, including separation of powers, Cass Sunstein, Constitution of the United States, Separation of Powers, self-government, Liberty. Each one on this page links to its own page with every episode that mentions it.

How long is "Six Ways the Constitution Keeps Leaders in Check with Cass Sunstein (#289)"?

The episode runs 19 min; the transcript is about 2,721 words in 30 timestamped sections.

More from 3 Takeaways

• All analyzed episodes
• Books mentioned on 3 Takeaways
• People mentioned on 3 Takeaways
• Topics mentioned on 3 Takeaways