Executive Discretion in the Zone of Twilight: War Powers Amidst Congressional Silence

This article recovers the constitutional thought of Alexander Hamilton, John Marshall, and others to provide a limited theory of presidential war powers. Contemporary legal understandings of war powers follow Justice Robert Jackson’s canonical framework in Youngstown Sheet & Tube Co. v. Sawyer, which describes a constitutional “Zone of Twilight.” His framework does not answer how we ought to understand the limits of presidential power when Congress neither authorizes nor prohibits executive action. This work recovers historical grounding for a limited sphere of executive discretion that remains susceptible to retroactive review from Congress. The president’s power to respond to a sudden threat is best understood as a defeasible power in the minds of leading Federalists. This distinctive understanding helps clarify how an energetic executive may be reconciled with constitutional limits.