of the President and represents an exercise of
addressed itself to a specific situation. It is
authority without law."125 Jackson rejected
quite impossible, however, when Congress
the appeal to the president's "inherent pow-
did specifically address itself to a problem, as
ers" arising out of the state of national emer-
Congress did to that of seizure, to find secret-
gency, noting that our forefathers "knew
ed in the interstices of legislation the very
what emergencies were, knew the pressures
grant of power which Congress consciously
withheld."1 3 1 Frankfurter added that the
they engender for authoritative action, knew,
too, how they afford a ready pretext for
American system of government, "with dis-
usurpation. We may also suspect that they
tributed authority, subject to be challenged
suspected that emergency powers would tend
in the courts of law, at least long enough to
to kindle emergencies."126 He concluded that
consider and adjudicate the challenge, labors
under restrictions from which other govern-
"[w]ith all its defects, delays and inconve-
ments are free. It has not been our tradition
niences, men have discovered no technique
to envy such governments."1 3 2
for long preserving free government except
that the executive be under the law, and that
Unfortunately, with the exception of the
the law be made by parliamentary delibera-
Reich case in 1996, as discussed at the outset,
tions."1 2 7
the Youngstown case constitutes the high-
water mark for judicial review of executive
In the course of his opinion, Jackson set
usurpation of legislative authority.133 For the
forth a three-part test for authoritative presi-
dential directives:
next major test did not come until 1981, in
Dames & Moore v. Regan, and in that case the
1. When the President acts pursuant
Court's deference to the executive branch
to an express or implied authoriza-
returned. In Regan the Court upheld
President Ronald Reagan's EO 12294134--
tion of Congress, his authority is at
its maximum, for it includes all
which suspended private claims filed against
that he possesses in his own right
Iran in the federal courts--on the theory that
plus all that Congress can
Congress had delegated its authority to the
delegate.128
president by mere "acquiescence." Notice
that such "authority" is even weaker than the
2. When the President acts in absence
retroactive approval granted to other presi-
of either a congressional grant or
dential directives.1 3 5 According to Justice
denial of authority, he can only rely
upon his own independent powers,
William Rehnquist, writing for the Court,
but there is a zone of twilight in
while no specific statutory language autho-
which he and Congress may have
rized the presidential directives at issue, the
Our forefathers
concurrent authority, or in which
Supreme Court "cannot ignore the general
"knew what
its distribution is uncertain.1 2 9
tenor of Congress' legislation in this area."
emergencies were,
Evidently, that tenor was in harmony with
3. When the President takes measures
the nearly unbounded executive discretion
incompatible with the expressed or
knew the
exercised by Presidents Carter and Reagan to
implied will of Congress, his power
pressures they
control the judicial consideration of claims
is at its lowest ebb, for then he can
engender for
against Iran.
rely only upon his own constitu-
Given President Clinton's aggressive use of
tional powers minus any constitu-
authoritative
presidential directives, as discussed earlier,
tional powers of Congress over the
action, knew, too,
matter.130
and the weight the Court appears to give to
congressional "tenor," it is imperative that
how they afford a
Congress carry out its constitutional duty to
Justice Felix Frankfurter's concurring
ready pretext for
check the executive's usurpation of congres-
opinion observed that it is one thing "to say
usurpation."
sional authority and to restore the separation
that Congress would have explicitly written
of powers. Likewise, it is imperative that states
what is inferred, where Congress has not
18