Martin S. Flaherty’s book advances the argument that the U.S. Supreme Court should discontinue its subservience to the president in foreign affairs and regain its role within the separation of powers framework as a check on executive power in domestic and foreign affairs. The current imbalance of power among the three branches of government is due to globalization increasing the power of the president, a trend noticeable not just in the United States but worldwide.
Flaherty contends that it is the Supreme Court, not Congress, that is best able to rein in the president. Congress is ill equipped to restrain the president because of frequent turnover in membership, the propensity to hastily enact statutes in response to international threats (for example, the PATRIOT Act), and reliance on executive branch information. The Supreme Court, on the other hand, is empowered by the Constitution to interpret the law and check executive and legislative actions. Additionally, the justices can do so without fear of retribution because they are largely insulated from political pressure through their lifetime appointments to the bench. Lifetime tenure, along with the fact that the Supreme Court can and does reverse precedent, is why Flaherty argues that the justices can withstand any criticism associated with ending executive deference in foreign affairs and bec
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