I knew when I started researching Aaron Wildavsky’s Dual Presidency Thesis that I would be exposed to literature and case law which sometimes seem to point in different directions. However, what was perhaps the most interesting part of my research for this paper was coming across several memos in the papers of Supreme Court justices which reflected the inherent difficulty that the Court faces when trying to draw lines between acceptable and unconstitutional exercises of executive authority. In particular, the Justices of the Court seem well aware of the political difficulty of deciding against the President and acknowledge that their position on the Court sometimes requires them to make these tough decisions. But, the Court also has to make these decisions against the backdrop of previous cases and doctrine. Navigating the sometimes tricky political scene in Washington while staying true to past precedents is of course a difficult task.
It was the need on the part of the Court to keep these two concerns in balance which convinced me to approach my research on presidential power by utilizing a power matrix which reflects this tension. The matrix divides presidential power into four separate quadrants that vary from each other depending upon whether the presidential act in question was a domestic or foreign concern and whether or not the President engaged in this action with the support of Congress, in the absence of congressional authorization, or against the expressed will of Congress. This matrix allowed me to approach these cases in the same manner as the Court. In other words, the domestic/foreign breakdown was used in the matrix because the Court’s precedents have always acknowledged that the President has more power when acting on foreign issues than he does when acting on domestic issues. The unilateral/bilateral dimension to the matrix reflects the Court’s desire to tread the political waters by carefully considering what the other power players in D.C. are doing. Thus, if the President is acting bilaterally, the Supreme Court has tended to give the President and Congress more leeway and vice-versa.
The matrix of presidential power,which grew out of the research I conducted at the Library of Congress, is a nice and neat way of summarizing the Court’s stated position on executive power. However, the matrix does not entirely explain the Court’s jurisprudence. Thus, in addition to the two considerations used to construct the matrix, there is also a section of my research devoted to how the presence of exigent circumstances can sway the Court away from the decision that the matrix would predict.
All in all, my research has tended to support the proposition that Wildavsky’s thesis is still a good summary of executive power but that it does need slight revisions which incorporate the unilateral/bilateral distinction. Thus, although predicting how the Court will react to each and every case that it hears on presidential power is difficult, the construction of this matrix has allowed me to organize these decisions in a way that makes it easier for people to grasp the Court’s movement on executive power.