In his canonical concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson set forth a “tripartite” framework for evaluating exercises of presidential power. Regarding the middle category of that framework, Justice Jackson famously suggested that presidential actions undertaken “in absence of either a congressional grant or denial of authority” implicate “a zone of twilight,” within which “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Since the articulation of this idea some seventy years ago, the Supreme Court has furnished little additional guidance as to how courts should evaluate presidential actions that implicate the “zone of twilight,” thus leaving it largely to the lower courts to translate Justice Jackson’s “contemporary imponderables” into workable doctrinal commands. Taking that observation as its starting point, this Article canvasses the small but important body of lower court opinions that have grappled with Justice Jackson’s zone of twilight. Its investigation yields two important takeaways. First, these opinions reveal a varied, ad hoc, and sometimes-inconsistent set of approaches to reviewing twilight-zone actions, as lower courts have failed to converge on a single methodological approach to evaluating presidential action against a backdrop of formal legislative silence. And second, the opinions reflect a longstanding and steadfast reluctance to engage with the twilight zone’s substance, as lower courts have frequently found ways to avoid concluding that plausible instances of twilight-zone action give rise to the “contemporary imponderables” that Justice Jackson himself invoked. We hypothesize that these two features of contemporary twilight-zone opinions—their doctrinal haphazardness and their sporadic incidence—may exist in something of a positive feedback loop, with the uncertain and amorphous state of “twilight-zone doctrine” deterring lower courts from assigning presidential action to Justice Jackson’s middle category, and with the relative paucity of twilight-zone opinions impeding the development of a coherent and streamlined decisional methodology. We thus conclude this Article by proposing a simple but flexible method of two-dimensional twilight-zone analysis—an approach that might help to break this cycle of avoidance and amorphousness and thus render Justice Jackson’s zone of twilight a more useful and active venue for the resolution of separation-of-powers cases.
Michael Coenen & Scott M. Sullivan, The Elusive Zone of Twilight, 62 B.C. L. Rev. 741 (2021), https://lawdigitalcommons.bc.edu/bclr/vol62/iss3/2