My new article, co-authored with my fellow Mason grad Elizabeth Bahr, was just published in the Memphis Law Review. It is titled Youngstown’s Fourth Tier: Is There A Zone of Insight Beyond the Zone of Twilight? (SSRN)

Here is the abstract:

Justice Jackson’s seminal framework in Youngstown Sheet & Tube Co. v. Sawyer has provided the Supreme Court with a taxonomy to analyze separation-of-powers issues since its creation over fifty years ago. However, recent national security cases such as Rasul v. Bush and Hamdi v. Rumsfeld reveal a glaring lacuna in the post-9/11 Youngstown cases and literature. When examining national security and separation-of-powers cases that have employed the Youngstown framework since its inception in 1952, a curious and previously unidentified revelation emerges. This Article addresses the irregularity in the contemporary application and analysis of national security cases that employ the Youngstown framework and seeks to explain how, as a result of vexing separation- of-powers cases like Rasul and Hamdi, the Supreme Court has adopted an implied fourth tier of Youngstown.

This Article contends that the Court has implicitly recognized and employed a fourth tier in the traditional Youngstown framework in contemporary national security-related separation of- powers cases. 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, however, 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 cannot look to congressional sources to define the limits of executive power but rather must look to Article II of the Constitution.

Contemporary application of the Youngstown framework has illustrated that beyond the “zone of twilight” lies 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 issue do not fit neatly within one of Jackson’s original three Youngstown tiers. Rather than residing in a Tier Two zone of twilight, Tier Four is the Court’s zone of insight. While the zone of twilight reflects issues where the Court must determine the constitutional balance of power between Congress and the President, the zone of insight reflects those cases where the Court must assess the limits of the President’s unenumerated Article II authority. In certain national security cases, the Court consistently chooses a functionalist approach to resolve such constitutional questions.

This zone of insight reflects the contemporary Court’s desire to perceive and penetrate the President’s unenumerated Article II powers in an intuitive manner. 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 hamper the President’s powers during future conflicts. Therefore, rather than adhering to formalist notions of the separation of powers between Congress and the President, this zone of insight focuses exclusively on probing the contours of what the President can do, and more importantly, what he cannot do. This methodology embodies the pinnacle of judicial functionalism. This Article explores this fourth tier and explains how the Supreme Court balances formalist methods with functionalist needs.

This article is outside my standard fare of constitutional law and individual liberty scholarship, but it was an enjoyable project.