The Fourth Zone of Presidential Power: Analyzing the Debt-Ceiling Standoffs Through the Prism of Youngstown Steel
40 Pages Posted: 12 Apr 2014 Last revised: 21 Jan 2015
Date Written: 2014
In this Article, I use the Youngstown Steel Seizure Case to assess the recent series of debt-ceiling standoffs between Congress and the White House. If the Treasury ever reaches the debt limit and Congress fails to act, the president will be forced to choose between three options: (1) cancel programs, (2) borrow funds in excess of the debt limit, or (3) raise taxes. Each of these options violates a direct statutory command. In Youngstown, Justice Jackson asserted that “[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He offered his famous three-zone template which evaluates executive power by fixing it on “a spectrum running from explicit congressional authorization to explicit congressional prohibition.” Congress can sanction presidential action, it may be silent, or it may prohibit it. But by engaging in the standoffs, Congress directed the president to take specified action and forbade him from taking that very same action. Such contradictory legislative instructions cannot find a home anywhere within Youngstown’s existing taxonomy. As such, the standoffs require expansion of Youngstown’s spectrum to accommodate a fourth zone of presidential power. In this new zone, I argue that Congress, by confronting the president with a no-win scenario, increased his power. Conflicting legislative commands necessarily invest the executive with a measure of discretion that resembles law making. By commanding the president to implement particular programs, while denying him the funds necessary to pay for those endeavors, Congress tacitly afforded the president the discretion to take any of the three corrective actions suggested above.
Keywords: separation of powers, Youngstown, steel seizure, debt ceiling
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By David Pozen