LAUSR

Studying the separation of powers is disheartening at best. Understanding how members of Congress became so ambivalent, the executive became so unilateral, and the courts acquiesced to this imbalance requires the acceptance of an unhealthy constitutional order that shows no sign of improvement. Jasmine Farrier and I took different approaches to these issues. We diagnose the same problems, but we diverge on which parts of the dysfunction to address and how to address them. In her book, she carefully examines the three branches over the course of several decades to demonstrate how different branches have contributed to the current state of affairs. As Farrier points out in her review of The Politics of War Powers, I do not discuss judicial decisions or the reasoning of judges who have decided to avoid weighing in on many political questions. I think this is a valid critique, and I hope I can address why I did not discuss it. My reason for this exclusion relates to the very situation she demonstrates in her work. Despite major changes to the balance of power between the executive and legislative branches in the realm of foreign affairs, with a few exceptions federal judges refuse to hear cases brought by members of Congress who ask the judiciary to constrain presidential unilateralism. For better or worse, they leave the political branches to sort out the dispute themselves, occasionally telling the plaintiffs that Congress possesses the formal powers needed to address executive overreach. Because of this state of affairs, the judiciary does not figure into the central concern of my book: the failure of Congress to impose serious constraints on the executive, which has caused significant problems at home and abroad. At home, it has warped the constitutional system to the point where the idea of serious deliberation about what kind of operation and what would constitute a successful conclusion of military operations has fallen by the wayside. Abroad, it has allowed poorly developed and poorly executed policy to have a detrimental impact on various countries, and it has failed to improve national security. The imbalance and the problems it causes have been the state of affairs for more than 70 years, and there are no signs of improvement. Understanding why that happened and why it persists is a central focus of my work. Seeing how the imbalance grew over the course of the twentieth century (especially during the Cold War) provides further evidence that the problem is not, strictly speaking, a constitutional one. Before the United States entered World War II, members of Congress had the capacity to hold presidents accountable, and more importantly, they did. On paper, it is therefore constitutionally possible for Congress to display the bipartisanship and branch unity needed to pass a bill that would constrain the executive and survive the inevitable presidential veto. Although it is not likely, it is possible. At present, the United States is merely experiencing the kind of imbalance that regularly imperils developed liberal democracies. There is, however, a point of no return.