The “Zone of Twilight”

by Jonathan H. Adler

I think that Senator Leahy is correct that Judge Alito misspoke yesterday in the way he characterized Justice Jackson’s Youngstown Steel decision by misusing the “zone of twilight” catchphrase. According to Jackson’s opinion, where Congress has not acted to affirm or restrict executive authority, the executive must “rely upon his independent powers” but acts within a “zone of twilight” in which the President and Congress have “concurrent authority.” Where Congress has sought to restrict executive power, however, the President’s “power is at its lowest ebb” and rests solely on “his own constitutional powers minus any constitutional powers of Congress over the matter.” Alito mistakenly characterized the latter as the “zone of twilight,” but correctly characterized the nature of executive power, and judicial review thereof, as being dependent upon whether Congress has acted to reaffirm or constrain executive power. Thus, I think it was clear that he was embracing Justice Jackson’s framework, and would apply it faithfully in separation of powers cases.