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 to Justice Black’s formalist majority opinion in Youngstown than Justice Jackson’s functionalist concurring opinion.
Part II will give a background to Jackson’s concurrence in Youngstown, and the effect that his tripartite taxonomy has had on separation of powers issues, particularly focusing on the Court’s adoption and interpretation of the taxonomy in Dames & Moore v. Regan. Part III will analyze the Court’s treatment of the taxonomy in Hamdan and Medellin and argue that the two cases create a new standard, one that extends the first category to include a longstanding history of congressional acquiescence , eliminates the “zone of twilight,” and forecloses executive action in the third category. Part IV analyzes potential ramifications of this new standard on the executive’s foreign affairs and war powers, and Part V concludes by calling for the Supreme Court to clarify whether the new standard established by Hamdan and Medellin was intentional or inadvertent.
Turner, Michael J. “Fade to Black: The Formalization of Jackson's Youngstown Taxonomy by Hamdan and Medellin.” American University Law Review 58, no. 3 (February 2009):665-698.