The Supreme Court and the Powers of the Executive: The Adjudication of Foreign Policy

Article excerpt

Few substantive areas have merited as little empirical scrutiny as the Supreme Court's decisions on the conduct of United States foreign policy Many scholars have seemingly accepted as axiomatic that Court decisions on foreign policy have been rare and almost always supportive of the President. We challenge these twin assumptions and demonstrate that the Supreme Court has repeatedly issued decisions on the substance and process of American foreign policy, and that while generally supportive of the executive branch, the High Court has often ruled against it. Moreover, we model the outcomes of these decisions emphasizing the importance of the constitutional basis of laws and issues raised in judicial decision-making. We find that the executive branch is least likely to be supported when a case involved civil liberties, and when the executive powers claimed by the President were neither expressly permitted nor prohibited by the Constitution. The executive branch is more likely to emerge victorious when the case involved the supremacy of federal over state law, foreign actors, or the President's constitutional powers.

Few substantive areas have merited as little empirical scrutiny as the Supreme Court's decisions on the conduct of United States foreign policy The Supreme Court's edicts on domestic policy issues such as civil rights and liberties and economic regulations have received considerable scholarly analysis-, yet a systematic examination of this "high politics" domain has lagged far behind. The public law literature has provided us with extensive doctrinal analyses of Supreme Court decisions (Adler and George 1996; Franck 1992; Glennon 1990; Henkin 1990, 1996; Koh 1990), but many scholars have accepted as axiomatic that decisions with foreign policy implications are infrequent and that the Court "almost always" (Koh 1990) supports the Executive. We question these twin assumptions and demonstrate that the Supreme Court has often issued decisions where there are American foreign policy concerns in either the holding or the obiter dictum of the Court's reasoning, and that-while generally supportive of the executive branch-the High Court has often ruled against it. An analysis of the Court's foreign policy decisions is important not just because it investigates unexplored terrain or challenges conventional wisdom, it also enhances our understanding of Supreme Court decision-making.

The cases we analyze involve important questions regarding the President's Article 11 powers, such as treaty-making and war powers as well as the constitutional powers and rights of the coordinate branches of government and the citizenry. Whose privileges and powers triumph in these disputes? A majority of doctrinal analyses suggest Presidents prevail, but we demonstrate that there are issues on which the Supreme Court will support those opposing the Executive because of the types of constitutional claims advanced. Our analysis includes all cases with foreign policy implications since the Constitution's ratification, thus providing greater generalizability and historical insight into High Court decisions (Gates 1991; Epstein, Walker, and Dixon 1989). An exploration into the relationship between the Executive and the judiciary provides greater insight into the separation of powers and our system of checks and balances. Does competition among these institutions insure independence from one another, or is it possible that in some constitutional areas the Executive receives judicial deference?

We organize this article as follows. First, we review the literature on the Supreme Court and foreign policy to detail why the common wisdom encourages the stereotype that the justices show such deference to the executive branch. Second, based on doctrinal studies of judicial decision-making, we advance several hypotheses to predict when the Court supports the Executives position. Third, we discuss how we collected Supreme Court cases where foreign policy issues are raised and briefly explore trends in executive success. …