I am grateful for Daniel O’Neill’s invitation to engage in this critical dialogue and also for Sarah Burns’s insightful review of my book.

One important area of questioning that Sarah Burns raises concerns the broadest of all topics: “Why”? Why has Congress allowed presidential/executive branch power to grow regarding extant and potential national security threats? Why is the delegation of power relatively stable across different partisan and policy eras? She is correct that my book could take up that question more centrally. Looking at the literature in a broad way (spanning Ackerman to Zeisberg), we know that there are a variety of explanations for these stubborn trends. The most convincing of those explanations include electoral indifference to legislative abdication, lack of institutional maintenance from House/Senate leadership, and the fright of twentieth- and twenty-first-century technologies of war that may require rapid response.

Another area of the book that Burns would have liked to see expanded is the nature of the lower courts’ decisions in member lawsuits. Again, I heartily agree that this is fertile ground for additional research and more dedicated focus. Are lower federal court judges more courageous—sometimes taking up robust defenses of members’ claims? Or are they penned in by hewing to precedent and (consciously or not) their own ambitions of promotion to a higher level, which could be damaged by anti-presidential opinions? Burns is on to something here. Several years ago when I began the project, I had dreams of extended appendices that would include the president’s name/party and US Senate majority at the time of the federal judge’s appointment, as well as the president’s party, congressional majority, and type of holding for every member case that came to each judge. A pilot of that database on war powers cases compiled by an undergraduate researcher that I supervised showed that there was no predictive quality to these data points. I remain intrigued by the idea that there is an elegant way to display these variables for future researchers who remain skeptical that war is a corner of jurisprudence not tainted by partisan and ideological polarization.

This point leads to Burns’s final suggestion for additional work. What if federal judges took a greater interest (and heavier hand) in congressional lawsuits? Would these judges help heal or further inflame the United States’ dysfunctional separation-of-powers system? As Constitutional Dysfunction on Trial explains, judicial restraint is akin to executive branch victories, because it sends members back to their legislative chambers to pass disapprovals of delegations of power that may not have been authorized in the first place—and then try to muster supermajorities to overcome certain presidential vetoes. Federal judges take these precedents and build a wall under the not-very-compelling judicial default of, in effect, “we do not take these types of cases because…we do not take these types of cases.” As we face another semester of teaching the outdated separation-of-powers fantasy called Federalist 51, we can be forgiven if we wonder why only one of three branches appears to relish flexing institutional muscle.