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Constitutional Dysfunction on Trial: Congressional Lawsuits and the Separation of Powers, Jasmine Farrier

Reviewed by Aaron M. Houck

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U.S. presidents today exercise powers that the Constitution’s Framers feared—powers to prosecute wars unlimited in geographic or temporal scope; to regulate all manners of civic, economic, and social life through an expansive administrative state; and to make policy on highly contentious (and actively contested) issues through executive orders. The executive branch exercises powers that are supposedly vested in the Congress. But curbing executive expansionism has proved elusive. Jasmine Farrier’s Constitutional Dysfunction on Trial considers the efficacy of one potential check on presidential power—member suits, or lawsuits by legislators seeking judicial correction of executive violations of separation-of-powers principles. Her analysis leads to an ultimately pessimistic view of the vibrancy (and potentially the viability) of the separation of powers in contemporary U.S. politics.

In some ways, member suits offer a conceptually attractive application of checks and balances: two branches engage in a power struggle mediated by the third branch. Farrier carefully catalogs the universe of these interbranch suits (the first, Mitchell v. Laird [1971], challenged President Richard Nixon’s use of military force during the Vietnam War). They generally follow the same plot: a president exploits ambiguous

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