Cass Sunstein

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.

What Madison emphasized in talking about how the Constitution protects 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 court gets to say to Congress, sorry, but the First Amendment stands in your way.

If 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.