So when the President threatens to use those same emergency authorities to try paying for a border wall after Congress has refused, we watch closely. And so should you.
Justice Jackson’s concurring opinion in Youngstown set forth the analytical framework that has come to define this area of law. It explains that executive power stands at its lowest ebb when confronting an explicit act of Congress denying the purported authority, as President Truman did when attempting to seize steel mills. In contrast, executive power attains maximal reach when authorized (either explicitly or by implication) by Congress, such as when Congress has authorized military action. In between, the executive branch has flexible authority within a “zone of twilight” on issues that Congress has not addressed.
Flash forward to today. Congress has not appropriated funds to build the wall requested by the President. Given that Congress is the branch of government with the exclusive power to tax and spend, the most obvious way to characterize this refusal is as a rejection of the President’s request—placing the President at his “lowest ebb” of power under the Youngstown analysis.
