I recently co-authored an article with my Mason Law Review colleague, Elizabeth Bahr. Liz is currently working  as an Assistant Counsel, Department of the Navy General Counsel, Strategic Systems Programs. She has an extensive background in military law, and I am honored to have had the opportunity to write with her.

The article, available here on SSRN, will be published in Volume 40 of the Memphis Law Review, sometime this Spring.

The article presents an interesting question. You all remember the classic steel seizure case, Youngstown Sheet & Tube. In his famous concurring opinion, Justice Jackson three tiers to understand the separation of powers concerns between the executive and the Congress. But what happens when the Court is in fact considering the tension between the Executive and the Judiciary?

We contend that this is exactly what the Court considered in the recent Detainee cases, yet ostensible applied the old Youngstown Framework. Is there an implied Fourth Tier of Youngstown? Beyond the Zone of Twilight is there a Zone of Insight?

I will be blogging more about this article to solicit feedback and comments in future posts, but in this post I will copy some points from the Introduction to whet your appetite. More after the jump.

In Jackson’s opinion, Tier 1 involves a situation where “the President acts pursuant to an express or implied authorization of Congress, [bringing] his authority [to] . . . its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Tier 2 arises when the President acts in absence of either a congressional grant or denial of authority, [and] he can only rely upon his own independent powers . . . .” More famously, however, Tier 2 is known as the “zone of twilight,” used to describe scenarios where President and Congress may have “concurrent authority, or in which its distribution is uncertain.” Tier 3 occurs when the “President takes measures incompatible with the expressed or implied will of Congress,” and where the President’s “power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.”

In some cases, the Supreme Court has ostensibly applied the Youngstown framework, yet the Court’s analysis cannot be reasonably pigeonholed into one of the three tiers. Scholars and jurists have asserted that an implicit holding in Youngstown has always been that “the President is not and cannot be the sole judge of the scope of his own constitutional and statutory powers,” and that the “Supreme Court can and will . . . rule on such questions, . . . even in times of war or national emergency.” However, when one examines some of the most significant separation of powers cases in which the Supreme Court has either implicitly or explicitly used the Youngstown framework, one rarely finds the Court actually ruling on the scope of the President’s Article II authorities—and yet the Court still invokes the Youngstown framework to rule on the separation of powers issues at hand.

This Article, therefore, contends that the Court has implicitly recognized and employed a fourth tier to the traditional Youngstown framework in contemporary separation of powers cases. As evidenced above, the traditional three-tiered Youngstown framework was a judicially created tool to assist courts in determining the balance of power between Congress and the President. Although Jackson’s Tier 2 mentions a scenario where courts must assess whether the President is relying “upon his own independent powers,” such a scenario was not the subject of Jackson’s infamous zone of twilight—which occurs when the President and Congress may have concurrent authority. Thus the thrust of the original Youngstown framework—and most subsequent judicial application of the framework and resulting precedent—focuses on determining the balance of power between Congress and the Executive. As prescient as Justice Jackson’s original framework is, it does not provide any judicial tools to assist in determining the balance of power when the struggle is between the Executive and the Judiciary, where the President declares he is rightly acting within his “own independent powers.”  In such a scenario, courts are forced not to look at Congressional sources to define the limits of Executive power, but rather must look at Article II of the Constitution, to definitively “say what the law is.”

Defining the scope of the President’s unenumerated Article II powers, however—especially those powers that touch upon national security and war-time issues—could potentially straightjacket the President’s Commander in Chief powers during future conflicts. In order to avoid this perilous precedent, the Court has employed an implicit fourth tier. Beyond the zone of twilight, therefore, contemporary application of the Youngstown framework has exposed a zone of insight.

The zone of insight can be defined as a judicially pragmatic tool employed by the Court when the particular facts of a separation of powers issues does not fit neatly within one of Jackson’s original three Youngstown tiers. This Tier 4 zone of insight reflects the contemporary Court’s desire to perceive and penetrate national security and separation of powers issue in an intuitive manner, and embodies the pinnacle of judicial functionalism. This Article explores this fourth tier, and explains how the Supreme Court balances formalist methods with functionalist needs.