Category Two and Justiciability

I am writing a book on Justice Jackson's concurrence in Youngstown. In this post, I advance a tentative idea about Category Two cases (the "zone of twilight") where Congress did not authorize or prohibit the presidential action in question. My idea that is that these cases are non-justiciable and that the concurrence is not at odds with that conclusion. 

Let's start with a basic observation about the three categories. Category One expressly refers to "the widest latitude of judicial interpretation" in considering a presidential action authorized by Congress. Category Three also refers to judicial review in saying "Courts can sustain exclusive presidential control in such a case only by disabling from acting upon the subject." Category Two, though, never refers to courts at all. It speaks only of "an actual test of power" in the zone of twilight.

Why might Category Two have omitted an express reference to courts? One thought is that Justice Jackson looked to Augustus Hand's opinion in United States v. Western Union Telegraph Co as inspiration. We know this because of a note in Jackson's files on the case and by his citation of the opinion in Footnote 2. In Western Union, Judge Hand said that he doubted that a claim of presidential authority "based not upon an original prerogative but upon congressional acquiescence was a justiciable matter, and whether a court should interfere to define or support it; for the basis of the right would then depend on the interrelations and mutual accommodations of the Executive and Legislative Departments of the government."

You can read Category Two as taking the same non-justiciability position, though some lower federal courts have reached the merits when they are consciously in Category Two. I would argue that extending the political question doctrine into this realm is a good idea for democratic accountability reasons and because there is no principled way to resolve those disputes in the courts. I'll save that argument for the book. 

The only wrinkle is that Justice Jackson included a footnote in his discussion of Category Two. In that footnote, he did cite some cases, including Ex Parte Merryman, Humphrey's Executor, and a few more. But he did so in a way that suggested that judicial action was either ineffectual or impossible to explain logically.