« Court finds personal jurisdiction in Ford | Main | Trying and failing to keep standing and merits distinct »

Monday, March 29, 2021

Category Two of Youngstown

I think that my next book will be about Justice Jackson's opinion in Youngstown. The title practically writes itself--"Zone of Twilight." My draft article on non-delegation addresses one discovery that I've made about the opinion. More are coming.

Meanwhile, here's a question. Is there any case where a court concluded that the proper framework of analysis is the "zone of twilight" of Category Two? My sense from initial research is that courts always find a way to say that their case falls with Category One of Category Three. Probably because they do not want to be in the zone of twilight at all. But am I wrong about the lack of Category Two cases?

Posted by Gerard Magliocca on March 29, 2021 at 10:53 AM | Permalink


An interesting discussion of the Zone of Twilight in Justice Cuéllar's opinion in United Auburn Indian Community of Auburn Rancheria v. Newsom, 10 Cal.5th 538.

Posted by: Anon | Mar 29, 2021 11:50:34 PM

Part IV of Dames & Moore v. Regan (on claim-suspension authority) is probably best read as a Category 2 holding. The Court squarely held that the statutes the President invoked didn't directly authorize the action, so it's not a pure Category 1 holding. To be sure, the Court nevertheless relied in part on the statutes in upholding the Presidential action. But I still think that's better viewed as the way in which the Court resolved a Category 2 case, rather than a Category 1 holding.

Posted by: Hash | Mar 29, 2021 11:46:54 AM

The comments to this entry are closed.