A political veteran as well as a constitutional scholar, [Robert] Jackson anticipated situations like this. He described “a zone of twilight” in which “the President acts in absence of either a congressional grant or denial of authority” because “congressional inertia, indifference or quiescence may sometimes, at least, as a practical matter, enable, if not invite, measures on independent presidential responsibility.”

In other words, sometimes the president can get away with stretching his authority because Congress would rather not be held accountable for formally defining it.

The GM-Chrysler deals appear to be such an instance. But the constitutional ambiguity surrounding this use of TARP may prove tolerable only as long as the policy itself is. If GM and Chrysler start gobbling up even more funds — or if additional non-financial companies get bailouts — more Americans might question the president’s power to select certain firms for federal rescue. Fortunately, the TARP statute expires at the end of this year. Let’s hope the next version is a little less open to interpretation.