SEPARATION OF POWERS

The noted legal scholar and economist describes how a fundamental principle of a free society is meant to work.

Sunstein, among other things a veteran federal administrator under Presidents Obama and Biden, writes, memorably, that “freedom from fear is the central goal of the system of separation of powers.” Moreover, it is a kind of bill of rights, a requirement that those in power justify their actions as a bulwark against authoritarianism. By Sunstein’s account, this separation of powers essentially holds that the legislature cannot exercise executive or judicial power, the judiciary cannot exercise executive or legislative power, and the executive cannot exercise legislative or judiciary power. But is that so? There are considerable shades of interpretation there, ranging from originalism to the view that, as Sunstein puts it, “We can readily imagine one or another time and place in which one or another of [these] propositions might be rejected”—a time of national emergency, say. Sunstein cautions that separation does not imply checks and balances; there’s always overreach, and the much-mooted “deep state” does its part to preserve liberty by refusing to put some example of that overreach into actual motion. All this leads to a discussion of where the lines are really drawn, and here Sunstein hedges into fine distinctions: If President Trump (Sunstein names names) has immunity from anything he does in office, does that truly mean that he can direct the Justice Department to investigate and prosecute political enemies “only for one reason: to exact retribution?” Perhaps. But perhaps not, too: It depends on judges and lawmakers who are willing to do their jobs. And therein lies a rub, for, as Sunstein notes at the conclusion of this brief but packed book, “grave threats come from a government that is liberated from the constraints of the separation of powers.”

A subtle but critical examination into federal power and the many ways it can be used—and abused.