The Sound of Congressional Silence: Judicial Distortion of the Legislative-Executive Balance of Power

[C]ongress has a wonderful power that only judges and lawyers know about. Congress has a power to keep silent. . . . Of course, when [C]ongress keeps silent, it takes an expert to know what it means. But the judges are experts. They say that [C]ongress by keeping silent sometimes means that it is keeping silent and sometimes means that it is speaking.1 I. INTRODUCTION In simplistic constitutional terms, Congress makes law that the President enforces. More specifically, Congress makes law by enacting statutes through a series of specific requirements outlined in Article I, Section 7, and, unless acting under his own constitutionally assigned power, the President is bound by that law. To the formalist, who believes in strict adherence to the constitutionally prescribed boundaries between law enactment and law enforcement, that is the end of the story.2 The Supreme Court recognized the importance of formal requirements and their impact on the separation of powers when it struck down the legislative veto because it failed to follow the constitutional rules.3 On the other hand, to the functionalist, who values greater flexibility, there is more to the story.4 And, in fact, other Supreme Court decisions indicate that on occasion Congress effectively asserts its own authority, or constrains the authority of the President, not by formal enactment of law, but by doing nothing at all.5 As the epigraph above adroidy observes, the judiciary alone decides whether Congress has spoken through silence. Courts wield significant power in determining whether the President has acted appropriately in the face of congressional inaction, and they should tread lightly as their judgments trace the boundaries between legislative and executive power. Where Congress has failed to act or purposely chosen not to act, a gap in authority or power remains, which the President often feels compelled to fill.6 Executive action in such situations would appear to fall within the second category described by Justice Jackson in his Toungstown Sheet & Tube Co. v. Sawyer concurrence: When the President acts in absence of either a congressional grant or denial of autiiority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.7 Where congressional intention is difficult to discern, as in the case of inaction, this "zone of twilight" provides judges with crucial wiggle room to navigate their way to an outcome that maintains proper balance between the powers of the Executive and Legislative Branches. However, when judges find implied meaning in congressional inaction this wiggle room disappears, creating an analytical paradox in that an adaptable, functionalistic approach to what constitutes congressional will leads to a clearer, more determinate conclusion on the validity of the executive action.8 Depending on the result of such judicial determination, the executive action either falls into Jackson's first category, where executive "authority is at its maximum" because "the President acts pursuant to an express or implied authorization of Congress";9 or the third category, where executive authority "is at its lowest ebb" because "the President takes measures incompatible with the expressed or implied will of Congress."10 The validity of executive actions thus depends to a large degree on whether courts hear the implied will of Congress in silence. Given the tremendous authority of the judiciary to shape the separation of powers in our constitutional system, it is essential that the judicial branch play a measured role as referee and avoid the pitfalls of giving too much voice to congressional silence. …