The Collision of Political and Legal Time
Foreign Affairs and the Supreme Court's Transformation of Executive Authority
Publication: May 18
Publication: May 18
Publication: May 18
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Explores the dynamic institutional relationship that historically exists between the President and the Supreme CourtRead Chapter 1 (pdf).
How does the U.S. Supreme Court shape constitutional and political development? In The Collision of Political and Legal Time, Kimberley Fletcher answers this question by analyzing the key role the Court has played in interpreting presidential decision-making in the area of foreign affairs since 1936. She reconsiders the Curtiss-Wright Court, which instituted a new constitutional order that established plenary powers independent of congressional delegation. Fletcher also reexamines Japanese internment and detainee cases, demonstrating the entrenchment of the new constitutional order and how presidential ascendency becomes institutionalized. Other cases, such as Youngstown, illustrate how the Court, during a time of war, will check Executive power and authority.
The Collision of Political and Legal Time examines these cases and controversies in foreign policymaking through the twentieth and into the twenty-first centuries to show that the Court is not passive or constrained; it does not merely follow politics or the majority coalition. Through her nuanced analysis, Fletcher makes a larger argument about the role of the U.S. Supreme Court as an agent of change, which ultimately transforms power, shapes politics, and redirects history.
" Professor Fletcher lends an American political development approach to the president's power in foreign policy. The rise of executive authority emerges as a form of institution building, with the architect being the Supreme Court. Operating in legal time, the Court has constructed, stabilized, and checked a major political order. The Collision of Political and Legal Time places foreign policy alongside domestic accounts of political development, and it makes us think once again about the institutional resources that make the Court an agent of change." —Kathleen Sullivan, Associate Professor at Ohio University and author of Constitutional Context: Women and Rights Discourse in Nineteenth-Century America
" Supreme Court empowerment of independent presidential power rests on not only a series of judicial misinterpretations (such as John Marshall's sole-organ speech) but also a pattern of judicial deference to executive claims and assertions that lack a basis in evidence. Kimberley Fletcher's insightful and closely researched study, The Collision of Political and Legal Time , demonstrates how the Supreme Court has promoted presidential power in external affairs both beyond the Framers' intent and in conflict with express constitutional language." —Louis Fisher, author of Supreme Court Expansion of Presidential Power: Unconstitutional Leanings
"The Collision of Political and Legal Time is particularly timely.... (Fletcher’s) 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." — Law and Politics Book Review
"Fletcher sets out to explain how the Supreme Court, over the last century, has decided key cases concerning executive authority in foreign affairs.... She provides one of the most thorough and in-depth treatments of Supreme Court cases concerning executive authority in foreign policy to date. There is no doubt that these case studies will serve as a vital reference point for students of judicial politics, executive power, foreign affairs, and American political development."
— Perspectives on Politics
Table of Contents
1. The Court’s Constitutive Role: Shifting the Balance of Power
2. Curtiss-Wright: The Court’s Dynamic Role
3. The Court Defines the Legal Narrative of Japanese Internment and Exclusion
4. Steel Seizure: A Practical Approach to Presidential Power
5. Dames and Regan: Engineering a Shift in Authority from Congress to the President
6. Detainee Cases: A Definitive Statement of the President’s Monopoly in War Making
Conclusion: Constitutional Change Instigated outside the Legalized Constitution
Selected Cases Cited