One chapter of my new book argues that cases falling within Justice Jackson’s “zone of twilight” should be deemed non-justiciable. But are there any such cases nowadays?
Think about the ongoing cases contesting the Administration’s exercise of executive power. They all involve a claim that a statute authorizes the action (no matter how absurd that claim may be). In no case is the President saying, as Truman did in 1952, that he can act even though statutory authority is absent.
Perhaps that’s just good lawyering. But the current cases also express the reality that there are many more federal laws now than they were in 1952. Just as Article I’s enumerated powers may now be so broad as to constitute a federal police power, the U.S. Code may now be so thick that no silence remains.