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The Limits Of Executive Power, Robert J. Reinstein
The Limits Of Executive Power, Robert J. Reinstein
American University Law Review
Justice Jackson’s concurring opinion in The Steel Seizure Case has taken on iconic status among legal scholars and had been adopted by the Supreme Court as the governing framework for evaluating presidential power. But Jackson’s principles are conclusory, do not rest on any historical foundation, and raise as many questions as they answer. He fails to examine, much less justify, the existence or scope of implied presidential powers, nor does he meaningfully explain the extent to which those powers are subject to congressional regulation and override. I apply novel originalist methodologies to answer those unexamined questions, with important consequences to …
Fade To Black: The Formalization Of Jackson's Youngstown Taxonomy By Hamdan And Medellin, Michael J. Turner
Fade To Black: The Formalization Of Jackson's Youngstown Taxonomy By Hamdan And Medellin, Michael J. Turner
American University Law Review
This Comment argues that the Court’s holding in Medellin modifies Jackson’s tripartite taxonomy by effectively eliminating the “zone of twilight.” By requiring a “systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned,” the Court is essentially extending the first category—executive action with the express or implied authorization of Congress—to cover the middle “zone of twilight,” at odds with the very purpose of the zone. Additionally, the Comment argues that Hamdan establishes Congress’s “disabling” power in the third category, which, combined with Medellin’s interpretation, crates a new standard for Jackson’s taxonomy, one moor similar …