Many people in the United States and throughout the world worry about the scope of unilateral executive power vested in the office of the President because of the erratic behavior of the current inhabitant of that office. Louis Fisher’s latest book pulls the lens outward on the problem of executive power by tracing its expansion primarily through judicial action, but also through weak congressional accountability. While his analysis ends with the presidency of Barack Obama, his passionate argument for a rebalancing of authority among the branches of government is rendered all the more urgent by the Donald Trump presidency. Because some political coalition generally wants an empowered president, few, including the Court, have considered the implications of allowing a genuinely dangerous or problematic individual to exercise this power. How have we gotten into this pickle, and can we get out?

Supreme Court Expansion of Presidential Power can be read as an indictment of the Court, particularly Justice George Sutherland, for the original sin committed in United States v. Curtiss-Wright Export Corp. This 1936 case established the highly influential but improperly grounded “sole organ” doctrine, or the idea that the president has plenary and exclusive authority over foreign affairs through the implications of Article II (pp. 65–67). Justice Sutherland’s opinion grounded this rule in what Fisher and others have shown to be a wrongheaded interpretation of a speech given by John Marshall when he was a member of the House in 1800. The concept and Sutherland’s supportive reasoning grounded an expansion of executive authority in foreign affairs that has bled over to other areas of domestic law and, in Fisher’s view, has undermined accountability and responsibility among all three branches of the national government.

After outlining the problem, the book looks back at the pre-Curtiss-Wright history, showing how the Constitution’s Framers consciously chose to require collaboration between Congress and the executive branch in the conduct of foreign affairs, particularly with regard to war. Presidents tested the limits of this arrangement, but the courts facilitated Congress’s efforts to maintain its role of oversight.

Nonetheless, even prior to 1936, clouds were on the horizon. Increasingly, minor military adventures, especially in the Caribbean and Latin America, were tolerated without significant congressional oversight or objection. The Teapot Dome scandal, which occurred in the twilight of Warren Harding’s administration, enabled the Court to underline Congress’s capacity to investigate, and limited the scope of independent executive power (pp. 59–61).

Curtiss-Wright then shifted the framework, providing the executive branch with a ready argument to expand presidential power, circumscribing the capacity of other branches to check the president’s acts. The federal courts’ penchant for citing the case reinforced this behavior, and even modest efforts to limit its scope did not undercut its fundamental utility for expanding executive power (pp. 78–80). While the Court attempted to rein in the sole-organ doctrine in Zivotofsky v. Kerry in 2015, Fisher notes that the ruling allowed the historically inaccurate dicta of Curtis-Wright to remain unchallenged. Fisher’s post-1936 analysis details the Court’s quiescence during World War II, which led to the establishment of a strong state-secrets doctrine during the Cold War. These developments in turn facilitated the executive branch’s further military adventures in the name of thwarting international communism. Even the celebrated framework established in Justice Robert H. Jackson’s concurrence in the Steel Seizure Cases, which purports to rebalance executive and congressional power, allows substantial executive independence by Fisher’s read of its subsequent uses in foreign affairs cases.

Fisher’s analysis highlights the distressing recurrence of major miscalculations and deception in the executive branch’s decision-making processes and in its communications to Congress, the courts, and the public. The author calls out both Republican and Democratic administrations, not to provide a falsely balanced “both sides” narrative but, rather, out of genuine concern over each successive breach of trust or confidence. As his narrative advances into the late twentieth century, Fisher injects his own observations based on his years of service as a Senior Specialist in Separation of Powers for the Congressional Research Service.

Increment by increment, the path empowered the 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.