The Elusive Zone of Twilight

40 Pages Posted: 20 May 2020 Last revised: 24 Sep 2020

See all articles by Michael Coenen

Michael Coenen

Seton Hall University Law School

Scott M. Sullivan

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center

Date Written: April 23, 2020


In his canonical concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson set forth a “tripartite” framework for evaluating exercises of Presidential power. Within the middle category of that framework, Justice Jackson famously suggested that Presidential actions undertaken “in absence of either a congressional grant or denial of authority” implicate “a zone of twilight,” within which “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables, rather than on abstract theories of law.” Since the articulation of this idea some 70 years ago, the Supreme Court has furnished little additional guidance as to how courts should evaluate Presidential action that implicates the “zone of twilight,” thus leaving it largely to the lower courts to translate Justice Jackson’s “contemporary imponderables” into workable doctrinal commands.

Taking that observation as its starting point, this Article canvasses the small but important body of lower court opinions that have grappled with Justice Jackson’s zone of twilight. Its investigation yields two important takeaways. First, these opinions reveal a varied, ad-hoc, and sometimes-inconsistent set of approaches to reviewing twilight-zone actions, with lower-court judges having failed to converge on a single methodological approach to evaluating Presidential action against a backdrop of formal legislative silence. And second, the opinions reflect a longstanding and steadfast reluctance to engage with the twilight zone’s substance, as lower-court judges have frequently found ways to avoid concluding that plausible instances of twilight-zone action implicate the “contemporary imponderables” that Justice Jackson himself invoked. We hypothesize that these two features of contemporary twilight-zone opinions—namely, their doctrinal haphazardness and their sporadic incidence — may exist in something of a positive feedback loop, with the uncertain and amorphous state of “twilight-zone doctrine” operating to deter lower courts from assigning Presidential action to Justice Jackson’s middle category, and with the relatively small number of twilight-zone opinions impeding the development of a coherent and streamlined decisional methodology. We thus conclude the Article by proposing a simple but flexible method of “two-dimensional” twilight-zone analysis, an approach that might help to break this cycle of avoidance and amorphousness and thus render Justice Jackson’s zone of twilight a more useful and active venue for the resolution of separation-of-powers cases.

Keywords: separation of powers, Youngstown, Jackson Framework

Suggested Citation

Coenen, Michael and Sullivan, Scott M., The Elusive Zone of Twilight (April 23, 2020). Boston College Law Review, Forthcoming, Available at SSRN:

Michael Coenen

Seton Hall University Law School ( email )

1109 Raymond Blvd.
Newark, NJ 07102
United States

Scott M. Sullivan (Contact Author)

Louisiana State University, Baton Rouge - Paul M. Hebert Law Center ( email )

440 Law Center Building
Baton Rouge, LA 70803
United States

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