Jasmine Farrier’s work demonstrates the incredible restraint among judges in the federal system when it comes to addressing separation-of-powers questions, especially when members of Congress bring suits against the president. After providing historical context by referencing The Federalist Papers and early court decisions, the work focuses on cases from the 1970s onward. Before Nixon’s unprecedented actions, members of Congress had never asked the courts to help them restrain presidents. Although this change may seem reasonable, Farrier effectively demonstrates that congressional members’ efforts in the 1970s and future efforts to seek help from the courts reveals a dysfunctional system that the judiciary cannot fix. She argues that Congress has shirked its duties and delegated its prerogatives to the president. Judges agree but demonstrate a strong reluctance to solve the legislature’s problem for them.

In several instances, justices state plainly that Congress has a means of restraining the president—namely through legislation—but they do not use that tool effectively. The actions of Congress have caused an imbalance between the political branches, and Congress no longer has the capacity to repair it. For example, when explaining why she dismissed the case in Conyers v. Reagan (1984) District Judge Green wrote, “If plaintiffs are successful in persuading their colleagues about the wrongfulness of the President’s actions, they will be provided the remedy they presently seek from this Court. If plaintiffs are unsuccessful in their efforts, it would be unwise for this Court to scrutinize that determination and interfere with the operations of the Congress” (quoted on p. 43).

Despite consistently receiving decisions like Green’s, members of Congress continue to ask the judiciary to restrain presidential overreach rather than using their legislative tools. Farrier addresses this puzzle through interviews with some individuals who participated in the lawsuits. In an interview with some of the plaintiffs in Campbell v. Clinton (1999), Farrier discovers that “the lawsuit was designed to bring public attention to Congress’s ‘lack of will’ to confront President Clinton on war” (p. 48). The plaintiffs felt compelled to use this route to gain attention because they knew they could not use their branch’s prerogatives. As the plaintiffs note, despite the broad consensus among both parties that presidents overreach, especially in military affairs, “war brings…institutional disinterest” (as quoted on p. 48).

In the specific area of war powers, modern courts avoid definitive answers—with a few exceptions—despite the incredibly broad interpretation of executive powers adopted by presidents of both parties. The reserve of federal judges is even more perplexing after examining the historical evidence. As Farrier notes, Federalist 51 implies that a “healthy separation of powers system requires peaceful but consistent interinstitutional combat,” and the Constitution does not state or imply that questions of war powers are off-limits to the courts (p. 5). Furthermore, courts adjudicated war powers cases until at least the Mexican American war by tracing presidential power back to congressional authorization. Modern courts have therefore abandoned earlier practice and switched from requiring presidents to prove they have permission to go to war to requiring Congress to proactively restrain presidents from doing so, which requires achieving a supermajority that will overcome a veto from the White House. Farrier demonstrates how these changes occurred over the course of three major wars culminating in Truman’s constitutionally suspect decision to initiate the Korean War.

That move was the first time a president unilaterally initiated a large-scale military operation—and Congress let him. It may have been helpful in this section if Farrier had briefly addressed why the Cold War caused such a dramatic shift among all of the branches, with special attention to the motivation of the federal courts during a lengthy period of heightened insecurity. This would be especially enlightening in the case of the Korean War. Why did Congress agree to fund the war after failing to authorize it? Why did they not appeal to the courts, in this instance, as they did during Nixon’s presidency?

As Stephen Griffin notes in Long Wars and the Constitution (2013), the shift in the balance of power during the Cold War is akin to a constitutional amendment. For that reason, the “peaceful but consistent interinstitutional combat” gave way to an imperial president, a supine Congress, and a Court burdened by a more clearly “defined… political question doctrine” after Baker v. Carr (1962) (p. 5). Including a section addressing how Cold War federal judges saw their role in the shifting balance between the other branches would have greatly increased the reader’s understanding of why this occurred and what role the courts played.

Farrier’s discussion of the important cases of the era hints at an assessment of judicial acquiescence to the new balance of power, as she demonstrates how such cases helped presidents continue to overreach as Congress failed to check them. This was compounded after the passage of the War Powers Resolution (1973) when we see the turn toward requiring Congress to restrain presidents, rather than requiring presidents to have prior congressional authorization.

Another meaningful contribution of the work is her examination of these cases at the lower levels. However, it may have been valuable for Farrier to have a brief discussion of why she included certain lower-level cases and which judges she quoted from them. This would provide insight into why the lower-level judges appeared more friendly toward Congress. Does Farrier think those judges had a more accurate interpretation of their judicial powers and of what burden should fall on whom? This approach might have shed more light on why these were included rather than other possible cases. At the highest level, with remarkable consistency, judges dismiss cases brought by members of Congress against presidents. What accounts for this change once a case reaches the Supreme Court?

Interestingly, the partisanship of judges does not seem to affect their decisions, especially on foreign policy questions. As Farrier notes, “Whatever the motivations of federal judges who have formed these multilayered barriers around war powers, the consistency of the judicial position defies ideological polarization” (p. 51). Just as the interviews with plaintiffs meaningfully contribute to the book, having interviews with judges would also have provided interesting insights. Why do they adjudicate so consistently on these questions? For instance, Sanchez-Espinoza v. Regan (1984) looks like a case in which members of Congress should have prevailed. It would have been engaging to have a better sense of why the judges in this case seemed overly cautious and what motivated them.

Despite demonstrating that modern courts put a heavy burden on a dysfunctional Congress, Farrier proves that courts cannot solve the problem. Instead, the very fact that Congress asks courts for assistance allows (1) presidents to implicitly win when the court dismisses the case and (2) risks the possibility of a very pro-presidency decision. The problem goes even deeper. In addition to losing their ability to counter the “ambition” of the executive, Congress shows “two sides” that “are often in tension: a drive to protect constituents and counterintuitively, a drive to shed institutional power” (p. 89). Her discussion of the decision-making process used to determine what military bases to close in the 1990s is particularly illuminating.

In addition to delegating powers, Congresses also imposes “a variety of legislative process obstacles.” These, according to Farrier, are “self-inflicted wounds” (p. 93). When combined with the fact that “presidential unilateralism is often supported by all branches through overt approval or tepid opposition” (p. 98), Farrier has ample evidence that “it seems all three branches are working against Congress” (p. 93).

Unfortunately, this dysfunctional system is here to stay, barring a major catalytic event like the Great Depression or the Cold War (that does not reinforce the current imbalance). Farrier has diagnosed the problem effectively and explored it thoroughly. After examining the systemic problems, one must ask, Does she think the dysfunction is so deep that there are no solutions worth offering? It would have been interesting to explore what a judicial shift would do to the balance of power among the political branches. As Sanford Levinson and Jack Balkin note in Democracy and Dysfunction (2019), judges alter the way they interpret the Constitution in different eras. Is it possible that judges could shift toward providing Congress with more support? This would not eliminate the problem, but perhaps this change and some other reforms could slowly start a rebalancing between the political branches, especially in the realm of foreign policy.

Except for these few minor questions, I think this book makes an excellent and unique contribution to a very well-researched field. A number of audiences will benefit from reading Farrier’s careful analysis of American constitutionalism and the separation of powers.