Podcast Summary: 3 Takeaways™ with Lynn Thoman

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

Date: February 17, 2026
Guest: Cass Sunstein, Harvard Law Professor and leading legal scholar

Overview

In this episode, Lynn Thoman interviews Cass Sunstein about the role of the U.S. Constitution in constraining government power, focusing on the "six separations of powers." Sunstein explains the founders' intentions, the current risks to constitutional structure, and clarifies common misconceptions about how American democracy guards against tyranny. The discussion culminates in three key takeaways for listeners about the importance and modern relevance of the separation of powers.

Key Discussion Points and Insights

1. Founders' Fears and the Necessity of Separation of Powers

• [02:08] Sunstein explains the founders’ central worry: the accumulation of power in a single person or institution would inevitably lead to tyranny.
• The U.S. system was designed not simply to declare rights but to diffuse authority among multiple branches.

“The founders obsessed over separation of powers...the accumulation of powers in a single person would produce tyranny.”
— Cass Sunstein [02:17]

2. Six Distinct Separations, Not Just One

• [03:56] Sunstein introduces his concept of the “six separations of powers”. Instead of a single doctrine, there are six distinct prohibitions preventing branches of government from overlapping their functions:

  • Courts can’t make law
  • Courts can’t execute law
  • Legislature can’t execute law
  • Legislature can’t interpret law
  • Executive can’t interpret law
  • Executive can’t make law

• This framework insists each branch has its own defined role, creating a “dinner party rather than a solo endeavor.”

• Notable quote:

“It’s not the separation of powers. It’s six separation of powers...It’s a little dinner party rather than a solo endeavor.”
— Cass Sunstein [02:44]

3. Separation of Powers vs. Checks and Balances

• [06:06] Sunstein clarifies the difference:
  • Separation of Powers means institutions have exclusive domains.
  • Checks and Balances are mechanisms for mutual constraint (e.g., vetoes, impeachment, judicial review).

“Checks and balances means that each gets to constrain...that is independent of separation.”
— Cass Sunstein [06:14]

4. Why the Power to Make Law Is Reserved for Congress

• [07:23] Sunstein stresses that the President cannot make law and must obtain legislative authorization for significant actions—preserving both freedom and self-government.

“Any exercise of authority by the president...needs to have legislative permission.”
— Cass Sunstein [07:56]

5. Public Attitudes Toward Strong Leaders

• [08:59] Sunstein observes that public opinion about power is more about personalities than institutions, often shifting depending on who holds office.

“People’s judgments about who has power...are often, in fact, judgments about the person who would exercise the power.”
— Cass Sunstein [09:00]

6. Presidential Emergency Powers—How Limited Are They?

• [10:48] Emergency powers are narrow; the president can repel sudden attack, but other broad powers are highly contested and generally require Congressional authorization.

“Whether the President has any other emergency powers under the Constitution is most unclear...The safest answer is rarely, if ever.”
— Cass Sunstein [11:07]

7. The Dangers of Speed vs. Deliberation

• [12:06] Sunstein uses an anecdote about Vladimir Putin’s power to illustrate the risk of leaders acting without constraints, contrasting it with American constitutional limits which can sometimes slow down responses.

“Fascists and communists often don’t like separation of powers much because they think they need to respond quickly...Our presidents can’t do that.”
— Cass Sunstein [12:06]

8. What Is Lost If Separation of Powers Weakens?

• [14:06] Two main losses:
  • Freedom (protection from arbitrary power)
  • Self-Government (institutional checks ensure government reflects the people's will)
• If the executive and judiciary aren’t separate, there is no entity to “call to account” state power.

“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...can end up in prison and be shattered.”
— Cass Sunstein [14:20]

9. Can Midterm Elections be Canceled?

• [15:42] Sunstein states there is no legal authority for canceling congressional midterm elections; doing so would “make self-government tatters.”

“If you cancel the midterms, you’re canceling something which is fundamental to our system of constitutional self government...”
— Cass Sunstein [15:46]

10. Presidential Immunity and the Supreme Court

• [17:06] Sunstein explains the Trump immunity case, noting that true “core” executive actions are immune from prosecution, but criticizes the Supreme Court for “making it up” on broader immunity.

“The Court made it up. And this was not a good moment for Chief Justice Roberts, whom I generally admire.”
— Cass Sunstein [18:27]

Notable Quotes & Memorable Moments

• On the purpose of separation of powers:
  “The separation of powers is a bet. There’s very good reason to think it’s the right bet, but any bet can go sour.”
  — Cass Sunstein [13:26]

• On broad presidential immunity:
  “The more inflammatory way to say it, which I subscribe to, is the Court made it up.”
  — Cass Sunstein [18:27]

• Anecdote about Russian government power:
  “I’ll close all the streets. You can just go. You won’t have any traffic.”
  — Cass Sunstein, quoting Vladimir Putin [12:34]

Timestamps for Key Segments

• Introduction to Cass Sunstein & the separation of powers: [01:04]
• Six separations of powers explained: [03:56]
• Difference between separation of powers and checks and balances: [06:06]
• Presidential emergency powers: [10:48]
• Consequences of weakening separation of powers: [14:06]
• Canceling midterm elections discussion: [15:42]
• Presidential immunity & Supreme Court: [17:06]
• Three takeaways summary: [18:46]

Three Key Takeaways (from Sunstein) [18:46]

1. The separation of powers consists of six distinct constraints, each crucial to a functioning democracy and deserving of “firmest imaginable endorsement.”
2. The two most important separations today:
   • The executive cannot make law.
   • The executive cannot interpret law—courts alone have this power.
3. The President controls only the executive branch, not the whole government—even the President “generally requires legislative authorization to do anything at all.”

Closing

Cass Sunstein delivers a clear, insightful explanation of how the U.S. Constitution prevents the concentration of power and why those limits matter more than ever in the modern era. He urges listeners to understand, value, and defend the subtle but vital distinctions embedded in the American political system.