Lawful but Awful

Abstract

This concluding chapter assesses whether federal courts can stop the systemic dysfunction in the separation of powers by policing every allegedly egregious instance of presidential overreach and/or force members of the House and Senate to revive institutional ambition? This book answers no, while also acknowledging the deep and broad existential crisis that has led hundreds of members to seek relief outside of the chambers' vast arsenal of existing constitutional weapons. The twelve interviews conducted for this book explored the “awful” side of congressional delegation of power and executive expansion, which are more than theoretical constitutional arguments. The human consequences of executive branch unilateralism can be tragic, with ripple effects that last decades. These points were especially prominent among members and attorneys on specific foreign policies that have destabilized governments around the world and inflicted lasting harm to innocent civilians and, some argue, long-term U.S. national security. The “lawful” perspective of these conflicts is not necessarily a defense of these policies, nor a muscular executive branch in general. Rather, federal judges cannot take on the presidency in sustained and meaningful ways without Congress's support for its own prerogatives and powers—regardless of which party is in power and where.