In Youngstown Sheet & Tube Co. v. Sawyer, in a popular concurring opinion, Justice Jackson setup a tripartite framework for evaluating the President's proper authority:

When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances and in these only, may he be said . . . to personify the federal sovereignty. If his act is held unconstitutional under these circumstances it usually means that the Federal Government as an undivided whole lacks power.

When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes at least as a practical matter, enable, if not invite, measure on independent responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.

When the President takes measures incompatible with the express or implied will of Congress, his 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. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution for what is at stake is the equilibrium established by our constitutional system.

In Zivotofsky v. Kerry the court used this framework and did the analysis in the third category.

Are there any examples of cases where the court did the analysis in the second category?

  • Given that the guidance for the second category is essentially “gosh, that’s a tricky one”, it’s hard to see someone citing it as persuasive.
    – Sneftel
    Commented Feb 5 at 9:03
  • @Sneftel One of the main kinds of Presidential power in the second category are the President's foreign affairs powers, but I don't know if this case has been cited in support of them.
    – ohwilleke
    Commented Feb 5 at 17:21


You must log in to answer this question.

Browse other questions tagged .