The Supreme Court and the Powers of the Executive: The Adudication of F oreign Policy

Abstract

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.