The twilight zone

In his famous concurring opinion in Youngstown Sheet & Tube, the case involving President Truman’s seizure of steel mills pursuant to his executive power during war time, Justice Jackson identified three categories of presidential exercise of power:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum . . . .

2. 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. . . .

3. When the President takes measures incompatible with the expressed 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.

In which category does President Bush’s authorization of warrantless wiretaps of the communications between terrorists abroad and individuals in America fall? Arguably, it falls in the first, since Congress granted the president broad authority to take necessary and appropriate action to prevent another 9/11. Arguably it falls in the second, if one construes the post 9/11 resolution more narrowly and also finds that FISA is not a clear denial of the president’s right to authorize the wiretaps. Arguably it falls in the third, if one construes the post 9/11 resolution narrowly and finds that FISA clearly expresses Congress’s intent not to allow the NSA wiretaps. Or perhaps we need a fourth category to cover cases in which Congress talks out of both sides of its mouth.

Even if Bush’s action does fall in the third category, it may be that the president’s inherent authority to protect the country from foreign attack, minus Congress’s power to legislate on the subject, leaves him with the power to act as he did here. The steel mills case involved the president taking private property and intervening in a labor dispute, areas of traditional legislative power. It is less clear that congressional power to legislate about the specific ways in which the government deals with foreign threats exceeds the president’s power in this area. Perhaps this question falls into the “zone of twilight” to which Justice Jackson referred.

SCOTT adds: Readers interested in this subject should consult the Harvard Law Review article by Professors Curtis Bradley and Jack Goldsmith: “Congressional Authorization and the War on Terrorism.” (Thanks to reader Brian Brown.)