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Abstract

In the half century and more since Justice Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the fog surrounding acceptable executive power in national security and foreign affairs has only thickened. Today, whether presidents are responding to the challenges of an amorphous global war on terrorism or a global pandemic, they act against a backdrop of ambiguous constitutional and statutory authorization and shifting precedent. While Justice Jackson outlined zones of presidential power by tying that power to congressional acts, the Court subsequently watered down the test by looking to other factors, like legislative intent. At other times, the Court appeared to jettison the Youngstown zones for uncertain statutory analyses. Responding to the changing precedent, some scholars and practitioners called for deference for executive actions in national security and beyond. Others called for using the same statutory tools as in any other case.

A compromise is available. For courts seeking to remain faithful to Youngstown while recognizing calls for executive deference, I argue that they should look toward recent administrative law precedents. There, courts confront challenges similar to those in the national security and foreign affairs realms—unclear statutes and regulations, an inability to legislate with specificity, and political actors with more subject-matter expertise than the judiciary. The two-part test outlined in Kisor v. Wilkie, which focuses on whether a regulation is ambiguous and whether the character and context of the agency’s actions warrant deference, is the available compromise. The Kisor test would not only infuse clarity into Justice Jackson’s tripartite system, but would foster improved incentives for the political branches, such as encouraging the executive to utilize internal and external processes deserving of deference, while also serving as a measured restraint on the judiciary.

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