Justice Jackson's Twilight Zone

According to Jackson, there are three varying levels of power that a president may possess in a given situation, and all are dependent upon his relationship with Congress. A president’s power is at its peak when it has the support of congressional authorization. It is in a “twilight zone” in the middle when congress neither approves nor denies, and it is “at its ebb” when the President takes measures that are in opposition to the will of congress. After he outlines these three levels of presidential power (in their relation to congressional approval) Jackson makes clear his belief that Truman was acting unconstitutionally in seizing the steel mills. He says that this wasn’t even in the twilight zone of ‘maybe it’s acceptable, maybe it’s not.’ This was an action Congress considered and purposefully chose not to give to the president, so he was acting in his power at it’s lowest ebb, and it was totally outside the boundaries of acceptability.

            Personally, I thought Justice Jackson’s train of thought was a little confusing. He said (I think) that since congress was so willing to authorize the president all kinds of emergency powers anyway, that there was really no strong argument for the president acting without their explicit approval. To quote, he said he was “quite unimpressed with the argument that we should affirm possession of [emergency powers] without statute. Such power either has no beginning or no end. If it exists, it need to submit to no legal restraint.” This is perplexing because it seems to run counter to Justice Jackson’s previous statement about the “twilight zone” of power. Is he just arguing that the idea of the ‘twilight zone’ is a bad one? Is he acknowledging it’s existence but castigating the president for engaging in it? Or is his disapproval relevant only for this specific incident? Because he seems darn disapproving in general…

            Compared to the time spent on congress, the space Justice Jackson devotes to talking about the Supreme Court’s relation with the president is very brief. In short, Jackson believes that the president is “relatively immune from judicial review.” I don’t know what his evidence is to back this up exactly? Truman didn’t keep the steel mills in possession of the US govt after the Supreme Court ruled against it, so they do seem to have some power. But Jackson, in this poetic but slightly martyred tone, sets down the main duty of the Supreme Court as ‘holding the line’ against Presidential encroachment upon the other branches. “Such institutions may be destined to pass away,” he says, “but it is the duty of the court to be last, not first, to give them up.” So basically, the growth of presidential power is this massive, unstoppable hurricane, but the Supreme Court just has to put up sandbags and hope for the best. Or something.

            Oh! Also: checks and balances. Jackson pretty much thinks the president is outside of them. He’s reached this meta-level beyond being bound by them anymore. Thanks to his “prestige as head of state and his influence on public opinion, he exerts a leverage upon those who are supposed to check and balance his power which often cancels out their effectiveness.” Jeez. This is a really depressing view of the situation. Apparently the US president is basically a demi-god who does as he wills, subservient to no man. And thanks to the rise of political parties, Jackson says the president has this whole new way to supplement executive power. Yet one more tool to subvert constitutional checks and balances and get his way!

            I think I actually agree with Justice Jackson? (Except for the fact that I’m slightly confused by him.) I just think he’s being a little hyperbolic here. I’m anxious to read your guys’ blogs, cuz I feel like I really missed the point of this one.