The "Sole Organ" before the Court: Presidential Power in Foreign Policy Cases, 1790-1996

By King, Kimi Lynn; Meernik, James | Presidential Studies Quarterly, Summer 1998 | Go to article overview

The "Sole Organ" before the Court: Presidential Power in Foreign Policy Cases, 1790-1996


King, Kimi Lynn, Meernik, James, Presidential Studies Quarterly


Few substantive areas have merited as little empirical scrutiny as the Supreme Court's decisions on the conduct of U.S. foreign policy. The Court's edicts on diverse domestic policy issues such as civil rights and liberties(1) and economic regulations(2) have been given a considerable degree of social science analysis, yet a systematic examination of rulings in this "high politics" domain have lagged far behind. While the public law literature has provided us with extensive historical and especially doctrinal analyses of Supreme Court decisions,(3) many scholars have seemingly accepted as axiomatic that foreign policy decisions have been rare and that when the Court does enter into the political thicket of foreign affairs, the decisions are almost always supportive of the president.

We believe that these twin assumptions regarding the president's prerogative power may not be completely accurate because of the Court's strategic importance as an institution in the separation of powers and the Court's role as an arbiter in the horizontal and vertical separation of powers.(4) In addition, most analyses of foreign policy tend to focus on specific periods in U.S. history,(5) but almost all of the research focuses a critical eye on the Supreme Court's watershed decision in the case of United States v. Curtiss-Wright Export Corp. (1936).(6) There, the Court supported a much earlier interpretation regarding a sole-organ theory of presidential power because the "President alone has the power to speak or listen as a representative of the nation."(7) We believe that interpreting the Court's role as an institution requires an analysis that covers the entire history of Supreme Court jurisprudence and conflict resolution.

The Supreme Court is, first and foremost, responsible for resolving disputes between the different institutions of government and the policy actors who challenge the executive's authority. Aware of its role in adjudicating conflicts that allocate or deny power, the Court serves as a check on executive power. As a policy player--particularly in this substantive area where the nation's security may be at stake--the Court may be careful to not openly defy the executive's foreign policy powers, even though it may ultimately limit his authority. Thus, the scholarly community may have accepted a veiled perspective on judicial decision making that takes a narrow view on what constitutes a "foreign policy" decisional outcome.

A few examples of where this has occurred in foreign policy decisions prove illustrative. New York Times Co. v. United States (1971) is generally taught as a classic case involving freedom of the press, but it was also a case where the executive branch lost the argument that the powers of the president and the effective conduct of the nation's foreign policy were at stake.(8) Youngstown Sheet & Tube Co. v. Sawyer (1952) is best remembered for the Court's opinions that discussed the parameters of executive power and the major defeat it occasioned for President Truman.(9) Yet, it was also related to the Korean conflict and the president's ability to manage the war-making effort. Far less known is Little v. Barreme (1804), where the Court held that President John Adams--much like Harry Truman--overstepped his powers by ordering a naval officer to take certain actions that exceeded the legislative authority the president had been given to patrol the high seas.(10) Thus, while much has been made of the High Court's reluctance to tackle foreign policy cases and limit presidential power, we believe a more detailed review of Court decisions is necessary to provide more thorough evidence about judicial decision making.

We do several things in this article. First, we provide a brief overview of the literature on the Supreme Court and foreign policy to detail why the common wisdom encourages the stereotype that the justices show deference to the president. Second, we follow recent research by taking a broader perspective in examining the doctrine of presidential prerogative power. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

The "Sole Organ" before the Court: Presidential Power in Foreign Policy Cases, 1790-1996
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.