Federal District Judges and Presidential Power During the Postwar Era

Analysis of nearly two hundred federal district court decisions in cases involving the exercise of presidential power during the postwar era reveals two very different models of judicial decision making. In cases concerning presidential control of foreign and military policy, judicial decision making appears to be dominated by the recognition of fixed rules. So clear are these rules of deference to the executive that identification of the policy-making area alone constitutes an excellent predictor of case outcomes. By contrast, the statistical importance of such predictor variables as presidential prestige and whether the judge was appointed by the same president as that whose powers are at issue in the case suggests much greater relativism in the judicial response when the president is challenged as a domestic policymaker. As far as the federal district courts are concerned, presidential power over foreign and military affairs may aptly be called “the power to command,” while the executive's power in domestic affairs is better thought of as “the power to persuade.” In these respective models, we find confirmation of a distinction, developed half a century ago by the Supreme Court in United States v. Curtiss-Wright Export Corp. (200 U.S. 304, 1936), that approximates the “two presidencies” concept.