LAUSR

executive branch despite often merely cosmetic retreats, such as the 1974 congressional amendments to the Freedom of Information Act allowing federal judges to examine secret documents in camera (see pp. 179–81), the establishment of independent counsels (pp. 206–8), the Court’s denial of immunity for presidents against private suits (pp. 238–42), and its efforts to rein in the use of military commissions during George W. Bush’s presidency (pp. 252–62). Ultimately, Fisher concludes, we have wound up in a circumstance in which an innocent individual subjected to CIA-facilitated torture had to seek justice from the European Court of Human Rights because the U.S. system was impenetrable (pp. 276–77), and where presidents increasingly have sought authorization for major military engagements from the international community, rather than through the constitutionally prescribed democratic process. The book offers much to admire. The analysis is meticulous and comprehensive, and Fisher superbly breaks down complex doctrinal developments, enabling nonexperts to understand the historical trajectory and the urgency of the problem. Even not taking into account developments during the Trump administration, Fisher presents a compelling case for rebalancing executive authority in favor of more direct and specific congressional authorization for actions and more robust judicial oversight. His argument that the eroded state of separation of powers is dangerous was strong even for admirers of any given inhabitant of the Oval Office in prior years. While he does not caution that things could be immeasurably worse, his description of developments during the Clinton, Bush, and Obama years takes on a certain hair-raising quality now. Fisher believes that we have gone wrong, that the wrong turn is largely due to wrongly decided court cases, principally Curtis-Wright, and to go right would be to return to the Framers’ vision of separation of powers. I share his alarm at the current state of affairs. However, I see the problem not so much as an unwarranted departure from constitutional structure as the collective failure of our institutions to integrate a solid theory of constitutional limitations with a national identity that is increasingly that of a warrior state. The debate over how to conduct constitutional politics in a time of exigency, emergency, or military engagement presumes a contrasting normal state of affairs that the nation inhabits outside of wartime. With U.S. troops having been in the field somewhere in the world since just prior to World War II, the idea of warmaking and troop deployments as an exceptional state of affairs seems almost quaint. Our institutions, and our interpretations of the Constitution, need to adjust to this reality. The author criticizes Congress and the courts for failing to live up to their constitutional responsibilities. I see these failings as primarily institutional problems, not simply a failure to abide by and enforce constitutional norms. The Constitution provides a basic framework for separation of powers and coordination of responsibilities, but each branch must independently defend its authority and exercise it responsibly. Constitutional structure cannot fix broken politics, and resolving constitutional crises in the United States has always required political action beyond constitutional argumentation. Mark Graber’s sobering account of Dred Scott illustrates how any mode of constitutional argumentation can be manipulated to achieve Chief Justice Roger Taney’s repulsive outcome; fidelity to principle alone is helpful, but not sufficient (Graber, Dred Scott and the Problem of Constitutional Evil, 2006). As long as the nation maintains a high degree of ideological polarization that maps onto partisan identification, and congressional districts remain subject to partisan gerrymandering, it is hard to imagine any easy political remedies. In this environment, electing a Congress on the whole that is responsive to the political center and accountable for making positive policy choices seems nearly impossible. With reelection within a charged partisan environment supplanting responsible governance for many members of Congress, their incentives either to cede difficult political choices entirely to the president or to reflexively support or block executive agendas remain strong. The situation grows worse as frustrated presidents devise new and more aggressive ways to work around a dysfunctional Congress. All that prevents serious constitutional degradation or crisis is the hope that the president will behave in a responsible manner, since accountability cannot be engendered through institutions. My standpoint converges back with Fisher’s in the hope that principled claims for constitutional limitations could ultimately help. His argument proceeds from a basis of his beliefs about correct interpretations of the Constitution, mine from the belief that perhaps invocations of constitutional limitations, if extended to include foreign affairs and emergency powers, could help to regenerate responsible and responsive democratic politics. Regardless, we share the diagnosis that the imbalance of executive power is a serious threat to continued legitimate constitutional governance. Supreme Court Expansion of Executive Power does a great public service in laying out the history and implications of this dangerous developmental trajectory.