Judicial Checks on the President

This article summarizes the judicial checks on the presidency from two perspectives. The first perspective describes the doctrinal framework within which the courts consider executive power. The second addresses the theoretical and empirical research on how these judicial checks operate in practice. The three legal doctrines that are relevant to the judicial checks are described: political question doctrine, doctrinal frameworks for evaluating assertions of presidential power, and Chevron doctrine for judicial review of administrative action. There is reason to be skeptical of the judicial check on the presidency as a heroic force in American politics. The judiciary is part of the broader political system, and the courts have particularly strong ties to the presidency. The judicial check will matter more if the executive branch anticipates it and adjusts its behaviour accordingly. Theoretical and empirical investigation is further needed to elaborate whether and under what conditions the executive anticipates judicial action.