Executive Power and Judicial Deference

Abstract

Judicial intervention is often required to define the boundaries of executive power. Although many separation of powers analyses examine the interaction of courts and legislatures, few examine how the design of executive and judicial institutions affect judicial decision making in cases involving challenges to executive power in the U.S. context. I argue that the degree of judicial institutional vulnerability to executive retaliation will have a significant impact on judicial making. Using an original dataset of cases involving executive power challenges in the American states between 1980 and 2010, I find that courts are more likely to uphold executive power in environments where the threat of institutional retaliation from the executive is high. The results of this analysis indicate that the strength of judicial checks against executive power depends on broader relations of institutional authority, not just on constitutional doctrine or culture.

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