Vol. 29 No. 2 (February 2019) pp. 23-26THE COLLISION OF POLITICAL AND LEGAL TIME: FOREIGN AFFAIRS AND THE SUPREME COURT’S TRANSFORMATION OF EXECUTIVE AUTHORITY by Kimberly L. Fletcher. Temple University Press, 2018. 296pp. Hardcover $91.28. ISBN-10: 1439914923. ISBN-13: 978-1439914922.
Reviewed by Gbemende Johnson, Department of Government, Hamilton College. Email: gxjohnso@hamilton.edu.
One hallmark of 20th century and current politics is the expansion of presidential power and the increased use of executive unilateral action. Use of unilateral tools, such as executive agreements, to facilitate and manage diplomatic policy has increased substantially since the U.S. Supreme Court established the constitutionality of these agreements in UNITED STATES v. BELMONT. Between 1939-1989, executive agreements composed approximately 95 percent of all international agreements (Krutz and Peake 2009, 42). A public that increasingly holds the president responsible for the safety and economic performance of the country arguably incentivizes presidents to act autonomously where possible. Interestingly, scholars have given less attention the U.S. Supreme Court’s role in delineating and shaping the boundaries of executive power in foreign affairs. Fletcher’s theoretically and contextually rich analysis of U.S. Supreme Court jurisprudence in foreign policy disputes serves as a much-needed contribution to this dialogue.
Fletcher’s analysis focuses on U.S. Supreme Court litigation from Franklin Delano Roosevelt to George W. Bush, with detailed reference to the foreign affairs jurisprudence during the pre-modern presidency (Chapter 2). Fletcher explains that the balance of foreign affairs authority in favor of the president vis-à-vis Congress became rooted with the ruling in UNITED STATES V. CURTISS-WRIGHT EXPORT CORPORATION (1936). Early decisions such as BAS V. TINGY (1800) and TALBOT V. SEEMAN (1801) saw the Court affirming Congress’s power to initiate hostilities and “restate Congress’s primary role in authorization of war” (p. 6). However, the Court’s holding in CURTISS-WRIGHT that the president could establish arm embargos in accordance with broad Congressional statutory authorization marked a “doctrinal shift,” with the Court establishing a new “constructed constitutional order for executive supremacy for executive supremacy in foreign affairs” (p. 41). In addition to confirming that Congress has the capacity to confer the president with broad authority to act in foreign disputes, the CURTISS-WRIGHT decision institutionalized the “sole organ” doctrine allowing the president to wield plenary authority in foreign affairs, and substantial discretion on whether and when to act (p. 27). This favorable ruling was also significant given that the Court had recently ruled that components of National Industrial Recovery Act violated the Constitution’s non-delegation doctrine (p. 31). Fletcher’s argument explores the continued trajectory of judicial deference to the executive through a detailed exposition of significant cases such as KOREMATSU v. UNITED STATES (1944) and DAMES & MOORE V. REGAN (1981).
Fletcher situates her analysis within an American Political Development (APD) and historical institutionalist framework, and her discussion engages with APD interlocutors such as Kahn and Kersch (2006), Orren and Skowronek (2004), and Whittington (2007). Path dependency necessarily biases the status quo. However, a key component of Fletcher’s argument is that the U.S. Supreme Court is uniquely positioned, to shape, shift, and, if necessary, redirect the balance of authority between the president and Congress in the course of foreign policy leadership and management. Fletcher notes, “If the Court chooses to alter or overturn precedent, it does so with the knowledge that the trajectory of the previously established course of path taken by [*24] the actors involved in the dispute might be forever changed” (p. 11).
As political actors operate within “political time” (Skowronek 1997) to legislate and manage foreign affairs crises, Fletcher explains that the Court also occupies “legal time,” which includes the constitutional questions and controversies that emerge as the president navigates conflicts. These questions hold significant implications for the nation’s understanding of the juxtaposition between executive power, national security, and civil liberties, and undoubtedly bear on the political discourse of other institutional actors (p. 19). When faced with legal disputes such as those at the center of CURTISS-WRIGHT and KOREMATSU, Fletcher contends that a key consideration of the Court is whether the justices accept the president’s framing of the foreign dispute and, thus, the propriety of the challenged executive action. This consideration accompanies what Fletcher terms the Court’s “geopolitical” construction, which includes factors such as the nature of the conflict (i.e. if there is a national emergency), foreign policy considerations, the constitutional provisions under question, and the political climate (pp. 15, 91). In judging the validity of executive action, the Court will also look to Congress for authorization (both explicit and implicit) underpinning the executive’s assertion of authority, per Justice Jackson’s “zone of twilight” framework in his YOUNGSTOWN concurrence. Even if the authorization is not explicit, the lack of an explicit congressional restriction on the executive’s course of action can be, in some instances, taken as tacit approval or consent of executive action and autonomy (Chapter 5). However, the Court is willing to rebuke an executive whose management of foreign affairs drifts too far into domestic politics (Chapter 4) or seems to challenge the authority underlying judicial supremacy (Chapter 6).
The convergence of issues that occupy legal time at a given moment may be somewhat endogenous to political time and, expectedly, presidents advantaged in political time (i.e. Reconstructive and Articulation presidents) have found success on key constitutional questions in legal time. Given their warrants to deconstruct the prior waning political order (Skowronek 1997), Reconstructive presidents and their affiliated counterparts will in many instances find a Court willing to legitimatize executive action (Whittington 2007). However, Fletcher explains that outcomes in legal time sometimes clash and “collide” with the political and institutional space occupied by the president in political time. While the Court upheld executive action in key disputes involving FDR and Reagan, both Reconstructive presidents, it rejected Articulation President Truman’s framing of the state of foreign affairs in YOUNGSTOWN SHEET & TUBE CO V. SAWYER (1952), and upheld Disjunctive President Carter’s executive order that terminated litigation involving Iran during the Iranian Hostage Crisis (p. 112).
Fletcher’s analysis provides order and structure to the complex narrative underlying U.S. Supreme Court decision-making during the Bush Administration’s War on Terror. With a green light from Congress in the form of the Patriot Act (2001) and the Authorization for Use of Military Force (2001), the Bush Administration claimed expansive powers in order to bring those involved in the 9/11 attacks to justice and to eliminate future threats to national security. Despite domestic and international criticisms toward actions of the Bush Administration, as Fletcher notes, the geopolitical construction in the aftermath of the 9/11 attacks would seem to be one that strongly favored continued deference to the broad and expansive executive authority. Although the Court ruled that detained U.S. citizens were procedurally due access to a mechanism or inquiry to challenge their detention, the Court confirmed the president’s ability to hold U.S. citizens categorized as “enemy combatants” in HAMDI V. RUMSFELD (2004) (p. 157). However, in BOUDMEDIENE V. BUSH (2008), the assertion that the federal judiciary lacked the authority to review habeas challenges from detainees seemingly encroached too far into the Court’s ability to make assessments about the legitimacy of executive action, particularly on questions involving key civil liberties, such as habeas corpus access. [*25]
THE COLLISION OF POLITICAL AND LEGAL TIME is particularly timely given the Trump Administration’s controversial executive orders aimed at limiting the ability of individuals from entering the United States for a number of countries, many majority-Muslim. Fletcher references President Trump’s executive orders; however, THE COLLISION OF POLITICAL AND LEGAL TIME was published prior to the conclusion of HAWAII V. TRUMP (2018), which upheld Trump’s revised travel ban executive order in a 5-4 decision. Fletcher’s work illustrates that despite the controversial nature of the policy, deference to President Trump’s executive order should not necessarily be surprising given the Court’s prior foreign affairs jurisprudence.
Fletcher’s work will be of great interest to judicial and presidency scholars, APD scholars, and U.S. foreign policy researchers. Her work contributes to the field by presenting a complex yet clear analysis of the intricacies of foreign affairs jurisprudence through multiple Court-presidency configurations. Fletcher provides a detailed overview of each conflict underlying the litigation in her analysis, a nuanced discussion of congressional and presidential responses, and an illuminating review of each Court’s consideration of the contours of each dispute. Constitutional questions emerging in the midst of foreign conflict sometimes require the Court to conduct their own examination of the state of external affairs prior to a judicial assessment of the legitimacy of the actions triggered by said conflict. Specifically, “when rights and polity principles collide, the Supreme Court asserts its autonomy to determine when military actions are “reasonably” based” (p. 69). These foreign policy conflicts are many times unpredictable, dynamic, and fluid and can stretch beyond circumstances codified in statutes and events envisioned by the framers. The ability to perform their own assessment of foreign conflicts yields substantial power to the judiciary. While the substance of the geopolitical construction can sometimes constrain the Court, Fletcher explains, “the geopolitical concerns of our nation’s foreign policy and/or the perceived national emergency, yield the constitutional space of interpretive turn that allows the Court to act more freely” (p. 15). This occurs even when the Court takes a posture of deference to executive action. Fletcher’s works shows that greater inclusion of the U.S. Supreme Court is essential for a comprehensive understanding of the path and trajectory of the presidential leadership of U.S. foreign affairs.
REFERENCES:
Kahn, Ronald, and Kenneth Ira Kersch, eds. 2006. THE SUPREME COURT AND AMERICAN POLITICAL DEVELOPMENT. Lawrence, KS: University Press of Kansas.
Krutz, Glen S., and Jeffrey S. Peake. 2009. TREATY POLITICS AND THE RISE OF EXECUTIVE AGREEMENTS: INTERNATIONAL COMMITMENTS IN A SYSTEM OF SHARED POWERS. Ann Arbor, MI: University of Michigan Press.
Orren, Karen and Stephen Skowronek. 2004. THE SEARCH FOR AMERICAN POLITICAL DEVELOPMENT. Cambridge, UK: Cambridge University Press.
Skowronek, Stephen (1997). THE POLITICS PRESIDENTS MAKE: LEADERSHIP FROM JOHN ADAMS TO BILL CLINTON. Cambridge, MA: Harvard University Press.
Whittington, Keith 2007. POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY: THE PRESIDENCY, THE SUPREME COURT, AND CONSTITUTIONAL LEADERSHIP IN US HISTORY. Princeton, NJ: Princeton University Press.
CASES:
BOUMEDIENE V. BUSH, 553 U.S. 723 (2008).
DAMES AND MOORE V. REGAN, 453 U.S. 654 (1981).
HAMDI V. RUSMFELD, 542 U.S. 507 (2004).
HAWAII V. TRUMP, 585 U.S. _____ (2018). [*26]
KOREMATSU V. UNITED STATES, 232 U.S. 214 (1944).
UNITED STATES V. BELMONT, 301 U.S. 324 (1937).
UNITED STATES V. CURTISS-WRIGHT EXP. CORP., 299 U.S. 304 (1936).
YOUNGSTOWN SHEET & TUBE CO. V. SAWYER, 343 U.S. 579 (1952).
© Copyright 2019 by author, Gbemende Johnson.
