Systemic Constitutional Dysfunction

This introductory chapter provides an overview of congressional litigation, which provides an outlet for the frustrations and constitutional arguments of members. Members often file the lawsuit because they know the regular legislative process will stall or fail to overcome a presidential veto even if they manage to pass a bill that curtails executive branch power. Member lawsuits deserve attention individually and together as separation of powers phenomena that are distinct from private litigation on the same topics. Private suits are more likely to succeed for a variety of reasons, while member suits provide an index of constitutional dysfunction. Ultimately, member lawsuits do not offer a simple solution to past, present, or future institutional imbalances, but they certainly provide opportunity for fresh analysis on how constitutional separation of powers principles can fall apart without deep and wide support. The chapter then considers the role of federal courts in constitutional conflicts.