Layered Legitimacy: A Systematic Expansion of Unilateral War Powers

The US Supreme Court forever constitutionalized foreign policy making when it decided Curtiss-Wright in 1936. The Court argued the US President is the sole organ of foreign affairs, and with over 10,000 court citations authorizing presidential prerogatives the imperial president is enshrined in law. Drawing on Fletcher’s (2017) evaluation of President Truman’s entrenchment of the sole organ doctrine, this article illustrates that the juncture of legal and political time creates constitutional moments that present to both the Executive and judicial branches the opportunity to (re)define presidential prerogatives through the mutual construction process. As such, Executive powers continue to be legally and politically embedded. In fact, President George W. Bush’s systematic expansion of unilateral war powers coupled with President Barack Obama’s targeted and innovative legal elucidations, confers an extra layer of legitimacy as both administrations normalized and further institutionalized the security state. Legal acrobatics, a robust rhetorical superstructure, and the constitutionalization of politics, by both the Bush and Obama administrations, cumulatively produced a new benchmark or branching point that provided President Donald Trump, and now President Joe Biden, with a heightened set of legal norms when forging unilateral decision making in foreign affairs. This analysis illustrates that a dynamic and fluid institutional relationship endures between the Court and the Executive branch; both the President and the courts affect constitutional and political development as each institution interprets Executive decision-making in the area of international relations. Ultimately, this paper exposes patterns of regime construction, identifies feedback loops, and argues that a President is unconstrained by the institutional context of their management in foreign affairs.