I recently co-authored an article with my Mason Law Review colleague, Elizabeth Bahr. Liz is currently working as an Assistant Counsel, Department of the Navy General Counsel, Strategic Systems Programs. She has an extensive background in military law, and I am honored to have had the opportunity to write with her.
The article, available here on SSRN, will be published in Volume 40 of the Memphis Law Review, sometime this Spring.
The article presents an interesting question. You all remember the classic steel seizure case, Youngstown Sheet & Tube. In his famous concurring opinion, Justice Jackson three tiers to understand the separation of powers concerns between the executive and the Congress. But what happens when the Court is in fact considering the tension between the Executive and the Judiciary?
We contend that this is exactly what the Court considered in the recent Detainee cases, yet ostensible applied the old Youngstown Framework. Is there an implied Fourth Tier of Youngstown? Beyond the Zone of Twilight is there a Zone of Insight?
I will be blogging more about this article to solicit feedback and comments in future posts, but in this post I will copy some points from the Introduction to whet your appetite. More after the jump.