In an original assessment of all three branches, Jasmine Farrier reveals a new way in which the American federal system is broken. Turning away from the partisan narratives of everyday politics, Constitutional Dysfunction on Trial diagnoses the deeper and bipartisan nature of imbalance of power that undermines public deliberation and accountability, especially on war powers. By focusing on the lawsuits brought by Congressional members that challenge presidential unilateralism, Farrier provides a new diagnostic lens on the permanent institutional problems that have undermined the separation of powers system in the last five decades, across a diverse array of partisan and policy landscapes.As each chapter demonstrates, member lawsuits are an outlet for frustrated members of both parties who cannot get their House and Senate colleagues to confront overweening presidential action through normal legislative processes. But these lawsuits often backfire - leaving Congress as an institution even more disadvantaged. Jasmine Farrier argues these suits are more symptoms of constitutional dysfunction than the cure. Constitutional Dysfunction on Trial shows federal judges will not and cannot restore the separation of powers system alone. Fifty years of congressional atrophy cannot be reversed in court.
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CONSTITUTIONAL DYSFUNCTION ON TRIAL
CONSTITUTIONAL DYSFUNCTION ON TRIAL Congressional Lawsuits and the Separation of Powers
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First published 2019 by Cornell University Press
Library of Congress CataloginginPublication Data
Names: Farrier, Jasmine, 1970– author. Title: Constitutional dysfunction on trial : Congressional lawsuits and the separation of powers / Jasmine Farrier. Description: Ithaca [New York] : Cornell University Press, 2019. | Includes bibliographical references and index. Identifiers: LCCN 2019015732 (print) | LCCN 2019018379 (ebook) | ISBN 9781501744464 (pdf) | ISBN 9781501744471 (epub/mobi) | ISBN 9781501702501 | ISBN 9781501702501 (cloth ; alk. paper) | ISBN 9781501747106 (pbk. ; alk. paper) Subjects: LCSH: Separation of powers—United States—Cases. | Executive Power—United States—Cases. | Legislative power—United States—Cases. | Judicial power—United States—Cases. | Executivelegislative Relations—United States. | Political questions and judicial power—United States. Classification: LCC KF4565 (ebook) | LCC KF4565 .F37 2019 (print) | DDC 342.73/044—dc23 LC record available at https://lccn.loc.gov/2019015732
To Bonnie, Tovah, and Talia
Contents
Introduction: Systemic Constitutional Dysfunction
Par t 1 WAR POWERS 1.War Is Justiciable, Until It Isn’t 2. Suing to Save the War Powers Resolution
Par t 2 LEGISLATIVE PROCESSES 3. Legislative Processes Are Constitutional Questions 4. Courts Cannot Unknot Congress
Par t 3 MORE EXECUTIVE UNILATERALISM 5. Silence Is Consent for the Modern Presidency 6. So Sue Him