A Presumption in Favor of Congress
I’ve posted twice about the thought that the Constitution does not make the three branches equal. In fact, the text and the original understanding created Congress as the superior branch. Only much later (starting with Andrew Jackson) was there a notion that the three branches were co-equal, and this did not become a widely held view until long after ratification.
Well, so what? The answer is that when courts decide a separation-of-powers questions, there should be a presumption that Congress prevails. In other words, Justice Jackson’s concurrence in Youngstown is wrong. When we are in a “zone of twilight” where no legislation speaks to whether a certain power rests with Congress or the President, those claims should not be in equipoise.
Would a presumption in favor of Congress have made a difference in prior separation-of-powers cases? That I’m less sure about, as I need to work my way through the opinions.