OCTOBER TERM, 1993
Syllabus
DALTON, SECRETARY OF THE NAVY, ET AL. v.
SPECTER ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD
CIRCUIT
No. 93-289. Argued March 2, 1994-Decided May 23,1994
Respondents filed this action under the Administrative Procedure
Act (APA) and the Defense Base Closure and Realignment Act of 1990
(1990 Act), seeking to enjoin the Secretary of Defense (Secretary)
from carrying out the President's decision, pursuant to the 1990
Act, to close the Philadelphia Naval Shipyard. The District Court
dismissed the complaint on the alternative grounds that the 1990
Act itself precluded judicial review and that the political
question doctrine foreclosed judicial intervention. In affirming in
part and reversing in part, the Court of Appeals held that judicial
review of the closure decision was available to ensure that the
Secretary and the Defense Base Closure and Realignment Commission
(Commission), as participants in the selection process, had
complied with the procedural mandates specified by Congress. The
court also ruled that this Court's recent decision in
Franklin v.
Massachusetts,
505 U. S. 788, did not
affect the reviewability of respondents' procedural claims because
adjudging the President's actions for compliance with the 1990 Act
was a form of constitutional review sanctioned by
Franklin.
Held: Judicial review is not available for respondents'
claims.
Pp. 468-477.
(a) A straightforward application of
Franklin
demonstrates that respondents' claims are not reviewable under the
APA. The actions of the Secretary and the Commission are not
reviewable "final agency actions" within the meaning of the APA,
since their reports recommending base closings carry no direct
consequences. See 505 U. S., at 798. Rather, the action that "will
directly affect" bases,
id., at 797, is taken by the
President when he submits his certificate of approval of the
recommendations to Congress. That the President cannot pick and
choose among bases, and must accept or reject the Commission's
closure package in its entirety, is immaterial; it is nonetheless
the President, not the Commission, who takes the final action that
affects the military installations. See
id., at 799. The
President's own actions, in turn, are not reviewable under the APA
because he is not an "agency" under that Act. See
id., at
801. Pp.468-471.
(b) The Court of Appeals erred in ruling that the President's
base closure decisions are reviewable for constitutionality. Every
action by
463
the President, or by another elected official, in excess of his
statutory authority is not ipso facto in violation of the
Constitution, as the Court of Appeals seemed to believe. On the
contrary, this Court's decisions have often distinguished between
claims of constitutional violations and claims that an official has
acted in excess of his statutory authority. See, e. g., Larson v.
Domestic and Foreign Commerce Corp.,
337 U. S. 682, 691, n.
11; Youngstown Sheet & Tube Co. v. Sawyer,
343 U. S. 579, 585, 587,
distinguished. Such decisions demonstrate that the claim at issue
here-that the President violated the 1990 Act's terms by accepting
flawed recommendations-is not a "constitutional" claim subject to
judicial review under the exception recognized in Franklin, but is
simply a statutory claim. The 1990 Act does not limit the
President's discretion in approving or disapproving the
Commission's recommendations, require him to determine whether the
Secretary or Commission committed procedural violations in making
recommendations, prohibit him from approving recommendations that
are procedurally flawed, or, indeed, prevent him from approving or
disapproving recommendations for whatever reason he sees fit.
Where, as here, a statute commits decisionmaking to the President's
discretion, judicial review of his decision is not available. See,
e. g., Chicago & Southern Air Lines, Inc. v. Waterman S. S.
Corp.,
333 U. S.
103,113-114. Pp.471-476.
(c) Contrary to respondents' contention, failure to allow
judicial review here does not result in the virtual repudiation of
Marbury v. Madison, 1 Cranch 137, and nearly two centuries of
constitutional adjudication. The judicial power conferred by
Article III is upheld just as surely by withholding judicial relief
where Congress has permissibly foreclosed it, as it is by granting
such relief where authorized by the Constitution or by statute. pp.
476-477.
995 F.2d
404, reversed.
REHNQUIST, C. J., delivered the opinion of the Court, Part II of
which was unanimous, and in the remainder of which O'CONNOR,
SCALIA, KENNEDY, and THOMAS, JJ., joined. BLACKMUN, J., filed an
opinion concurring in part and concurring in the judgment, post, p.
477. SOUTER, J., filed an opinion concurring in part and concurring
in the judgment, in which BLACKMUN, STEVENS, and GINSBURG, JJ.,
joined, post, p. 478.
Solicitor General Days argued the cause for petitioners.
With him on the briefs were Assistant Attorney General Hunger,
Deputy Solicitor General Kneedler, John F. Manning, and Douglas N.
Letter.
Senator Arlen Specter, pro se, argued the cause for respondents.
With him on the brief were Bruce W Kauff-
464
man, Mark
J. Levin, Camille Spinello Andrews, and Thomas
E. Groshens.
*
CHIEF JUSTICE REHNQUIST delivered the opinion of the Court.
Respondents sought to enjoin the Secretary of Defense
(Secretary) from carrying out a decision by the President to close
the Philadelphia Naval Shipyard.1 This decision was made pursuant
to the Defense Base Closure and Realignment Act of 1990 (1990 Act
or Act), 104 Stat. 1808, as amended, note following 10 U. S. C. §
2687 (1988 ed., Supp. IV). The Court of Appeals held that judicial
review of the decision was available to ensure that various
participants in the selection process had complied with procedural
mandates specified by Congress. We hold that such review is not
available.
The decision to close the shipyard was the end result of an
elaborate selection process prescribed by the 1990 Act. Designed
"to provide a fair process that will result in the timely closure
and realignment of military installations inside the United
States," § 2901(b),2 the Act provides for three
* Robert
J. Cynkar, John B. Rhinelander, Alexander
W Joel, Bernard Petrie, and Steven T. Walther filed a brief for
Business Executives for National Security as amicus curiae urging
reversal.
Briefs of amici curiae urging affirmance were filed for the
State of New York by G. Oliver Koppell, Attorney General, Jerry
Boone, Solicitor General, Peter H. Schiff, Deputy Solicitor
General, and Alan S. Kaufman, Edward M. Scher, and Howard L.
Zwickel, Assistant Attorneys General; and for Public Citizen by
Patti A. Goldman, Alan B. Morrison, and Paul R.
Q.
Wolfson.
1 Respondents are shipyard employees and their unions; Members
of Congress from Pennsylvania and New Jersey; the States of
Pennsylvania, New Jersey, and Delaware, and officials of those
States; and the city of Philadelphia. Petitioners are the Secretary
of Defense; the Secretary of the Navy; and the Defense Base Closure
and Realignment Commission and its members.
2 For ease of reference, all citations to the 1990 Act are to
the relevant sections of the Act as it appears in note following 10
U. S. C. § 2687 (1988 ed., Supp. IV).
465
successive rounds of base closings-in 1991, 1993, and 1995, §
2903(c)(1). For each round, the Secretary must prepare closure and
realignment recommendations, based on selection criteria he
establishes after notice and an opportunity for public comment. §§
2903(b) and (c).
The Secretary submits his recommendations to Congress and to the
Defense Base Closure and Realignment Commission (Commission), an
independent body whose eight members are appointed by the
President, with the advice and consent of the Senate. §§
2903(c)(1); 2902(a) and (c)(l)(A). The Commission must then hold
public hearings and prepare a report, containing both an assessment
of the Secretary's recommendations and the Commission's own
recommendations for base closures and realignments. §§ 2903(d)(1)
and (2). Within roughly three months of receiving the Secretary's
recommendations, the Commission has to submit its report to the
President. § 2903(d)(2)(A).
Within two weeks of receiving the Commission's report, the
President must decide whether to approve or disapprove, in their
entirety, the Commission's recommendations. §§ 2903(e)(1)-(3). If
the President disapproves, the Commission has roughly one month to
prepare a new report and submit it to the President. § 2903(e)(3).
If the President again disapproves, no bases may be closed that
year under the Act. § 2903(e)(5). If the President approves the
initial or revised recommendations, the President must submit the
recommendations, along with his certification of approval, to
Congress. §§ 2903(e)(2) and (e)(4). Congress may, within 45 days of
receiving the President's certification (or by the date Congress
adjourns for the session, whichever is earlier), enact a joint
resolution of disapproval. §§ 2904(b); 2908. If such a resolution
is passed, the Secretary may not carry out any closures pursuant to
the Act; if such a resolution is not passed, the Secretary must
close all military installations recommended for closure by the
Commission. §§ 2904(a) and (b)(l).
466
In April 1991, the Secretary recommended the closure or
realignment of a number of military installations, including the
Philadelphia Naval Shipyard. After holding public hearings in
Washington, D. C., and Philadelphia, the Commission recommended
closure or realignment of 82 bases. The Commission did not concur
in all of the Secretary's recommendations, but it agreed that the
Philadelphia Naval Shipyard should be closed. In July 1991,
President Bush approved the Commission's recommendations, and the
House of Representatives rejected a proposed joint resolution of
disapproval by a vote of 364 to 60.
Two days before the President submitted his certification of
approval to Congress, respondents filed this action under the
Administrative Procedure Act (APA), 5 U. S. C. § 701 et seq., and
the 1990 Act. Their complaint contained three counts, two of which
remain at issue.3 Count I alleged that the Secretaries of Navy and
Defense violated substantive and procedural requirements of the
1990 Act in recommending closure of the Philadelphia Naval
Shipyard. Count II made similar allegations regarding the
Commission's recommendations to the President, asserting
specifically that, inter alia, the Commission used improper
criteria, failed to place certain information in the record until
after the close of public hearings, and held closed meetings with
the Navy.
The United States District Court for the Eastern District of
Pennsylvania dismissed the complaint in its entirety, on the
alternative grounds that the 1990 Act itself precluded
3 Respondents' third count alleged that petitioners had violated
the due process rights of respondent shipyard employees and
respondent unions. In its initial decision, the United States Court
of Appeals for the Third Circuit held that the shipyard employees
and unions had no protectible property interest in the shipyard's
continued operation and thus had failed to state a claim under the
Due Process Clause. Specter v. Garrett,
971 F.2d
936, 955-956 (1992). Respondents did not seek further review of
that ruling, and it is not at issue here.
467
judicial review and that the political question doctrine
foreclosed judicial intervention. Specter v. Garrett, 777 F. Supp.
1226 (1991). A divided panel of the United States Court of Appeals
for the Third Circuit affirmed in part and reversed in part.
Specter v. Garrett,
971 F.2d
936 (1992) (Specter I). The Court of Appeals first acknowledged
that the actions challenged by respondents were not typical of the
"agency actions" reviewed under the AP A, because the 1990 Act
contemplates joint decisionmaking among the Secretary, Commission,
President, and Congress. Id., at 944-945. The Court of Appeals then
reasoned that because respondents sought to enjoin the
implementation of the President's decision, respondents (who had
not named the President as a defendant) were asking the Court of
Appeals "to review a presidential decision." Id., at 945. The Court
of Appeals decided that there could be judicial review of the
President's decision because the "actions of the President have
never been considered immune from judicial review solely because
they were taken by the President." Ibid. It held that certain
procedural claims, such as respondents' claim that the Secretary
failed to transmit to the Commission all of the information he used
in making his recommendations, and their claim that the Commission
did not hold public hearings as required by the Act, were thus
reviewable. Id., at 952-953. The dissenting judge took the view
that the 1990 Act precluded judicial review of all statutory
claims, procedural and substantive. Id., at 956-961.
Shortly after the Court of Appeals issued its opinion, we
decided Franklin v. Massachusetts,
505 U. S. 788 (1992), in
which we addressed the existence of "final agency action" in a suit
seeking AP A review of the decennial reapportionment of the House
of Representatives. The Census Act requires the Secretary of
Commerce to submit a census report to the President, who then
certifies to Congress the number of Representatives to which each
State is entitled pursuant to
468
a statutory formula. We concluded both that the Secretary's
report was not "final agency action" reviewable under the AP A, and
that the AP A does not apply to the President. Id., at 796-801.
After we rendered our decision in Franklin, petitioners sought our
review in this case. Because of the similarities between Franklin
and this case, we granted the petition for certiorari, vacated the
judgment of the Court of Appeals, and remanded for further
consideration in light of Franklin. O'Keefe v. Specter, 506 U. S.
969 (1992).
On remand, the same divided panel of the Court of Appeals
adhered to its earlier decision, and held that Franklin did not
affect the reviewability of respondents' procedural claims. Specter
v. Garrett,
995 F.2d
404 (1993) (Specter II). Although apparently recognizing that
AP A review was unavailable, the Court of Appeals felt that
adjudging the President's actions for compliance with the 1990 Act
was a "form of constitutional review," and that Franklin sanctioned
such review. 995 F. 2d, at 408-409. Petitioners again sought our
review, and we granted certiorari. 510 U. S. 930 (1993). We now
reverse.
I
We begin our analysis on common ground with the Court of
Appeals. In Specter II, that court acknowledged, at least tacitly,
that respondents' claims are not reviewable under the AP A. 995 F.
2d, at 406. A straightforward application of Franklin to this case
demonstrates why this is so. Franklin involved a suit against the
President, the Secretary of Commerce, and various public officials,
challenging the manner in which seats in the House of
Representatives had been apportioned among the States. 505 U. S.,
at 790. The plaintiffs challenged the method used by the Secretary
of Commerce in preparing her census report, particularly the manner
in which she counted federal employees working overseas. The
plaintiffs raised claims under both the AP A and the Constitution.
In reviewing the former, we
469
first sought to determine whether the Secretary's action, in
submitting a census report to the President, was "final" for
purposes of APA review. (The APA provides for judicial review only
of "final agency action." 5 U. S. C. § 704 (emphasis added).)
Because the President reviewed (and could revise) the Secretary's
report, made the apportionment calculations, and submitted the
final apportionment report to Congress, we held that the
Secretary's report was "not final and therefore not subject to
review." 505 U. S., at 798.
We next held that the President's actions were not reviewable
under the AP A, because the President is not an "agency" within the
meaning of the APA. Id., at 801 ("As the AP A does not expressly
allow review of the President's actions, we must presume that his
actions are not subject to its requirements"). We thus concluded
that the reapportionment determination was not reviewable under the
standards of the AP A. Ibid. In reaching our conclusion, we noted
that the "President's actions may still be reviewed for
constitutionality." Ibid. (citing Youngstown Sheet & Tube Co.
v. Sawyer,
343 U. S.
579 (1952), and Panama Refining Co.
In this case, respondents brought suit under the AP A, alleging
that the Secretary and the Commission did not follow the procedural
mandates of the 1990 Act. But here, as in Franklin, the
prerequisite to review under the APA"final agency action"-is
lacking. The reports submitted by the Secretary and the Commission,
like the report of the Secretary of Commerce in Franklin, "carr[y]
no direct consequences" for base closings. 505 U. S., at 798. The
action that "will directly affect" the military bases,
id.,
at 797, is taken by the President, when he submits his
certification of approval to Congress. Accordingly, the Secretary's
and Commission's reports serve "more like a tentative
recommendation than a final and binding determination." Id., at
798. The reports are, "like the ruling of a subordinate
470
official, not final and therefore not subject to review." Ibid.
(internal quotation marks and citation omitted). The actions of the
President, in turn, are not reviewable under the APA because, as we
concluded in Franklin, the President is not an "agency." See
id., at 800-80l.
Respondents contend that the 1990 Act differs significantly from
the Census Act at issue in Franklin, and that our decision in
Franklin therefore does not control the question whether the
Commission's actions here are final. Respondents appear to argue
that the President, under the 1990 Act, has little authority
regarding the closure of bases. See Brief for Respondents 29
(pointing out that the 1990 Act does not allow "the President to
ignore, revise or amend the Commission's list of closures. He is
only permitted to accept or reject the Commission's closure package
in its entirety"). Consequently, respondents continue, the
Commission's report must be regarded as final. This argument
ignores the ratio decidendi of Franklin. See 505 U. S., at
800-80l.
First, respondents underestimate the President's authority under
the Act, and the importance of his role in the base closure
process. Without the President's approval, no bases are closed
under the Act, see § 2903(e)(5); the Act, in turn, does not by its
terms circumscribe the President's discretion to approve or
disapprove the Commission's report. Cf.
id., at 799. Second,
and more fundamentally, respondents' argument ignores "[t]he core
question" for determining finality: "whether the agency has
completed its decisionmaking process, and whether the result of
that process is one that will directly affect the parties." Id., at
797. That the President cannot pick and choose among bases, and
must accept or reject the entire package offered by the Commission,
is immaterial. What is crucial is the fact that "[t]he President,
not the [Commission], takes the final action that affects" the
military installations. Id., at 799. Accordingly, we hold that the
decisions made pursuant to the 1990 Act are not review-
471
able under the AP A. Accord, Cohen v. Rice,
992 F.2d
376 (CAl1993).
Although respondents apparently sought review exclusively under
the APA,4 the Court of Appeals nevertheless sought to determine
whether non-APA review, based on either common law or
constitutional principles, was available. It focused, moreover, on
whether the President's actions under the 1990 Act were reviewable,
even though respondents did not name the President as a defendant.
The Court of Appeals reasoned that because respondents sought to
enjoin the implementation of the President's decision, the legality
of that decision would determine whether an injunction should
issue. See Specter II, 995 F. 2d, at 407; Specter I, 971 F. 2d, at
936. In this rather curious fashion, the case was transmuted into
one concerning the reviewability of Presidential decisions.
II
Seizing upon our statement in Franklin that Presidential
decisions are reviewable for constitutionality, the Court of
Appeals asserted that "there is a constitutional aspect to the
exercise of judicial review in this case-an aspect grounded in the
separation of powers doctrine." Specter II, supra, at 408. It
reasoned, relying primarily on Youngstown Sheet & Tube Co. v.
Sawyer,
343 U. S.
579 (1952), that whenever the President acts in excess of his
statutory authority, he also violates the constitutional
separation-of-powers doctrine. Thus, judicial review must be
available to determine whether the President has statutory
authority "for whatever action" he takes. 995 F. 2d, at 409. In
terms of this case, the Court of Appeals concluded that the
President's statutory authority to close and realign bases would be
lacking if the Secretary and Commission violated the procedural
4 See Specter v. Garrett,
995 F.2d
404, 412 (1993) (Alito, J., dissenting); see also Specter v.
Garrett, 777 F. Supp. 1226, 1227 (ED Pa. 1991) (respondents "have
asserted that their right to judicial review ... arises under the
Administrative Procedure Act").
472
requirements of the Act in formulating their recommendations.
Ibid.
Accepting for purposes of decision here the propriety of
examining the President's actions, we nonetheless believe that the
Court of Appeals' analysis is flawed. Our cases do not support the
proposition that every action by the President, or by another
executive official, in excess of his statutory authority is ipso
facto in violation of the Constitution. On the contrary, we have
often distinguished between claims of constitutional violations and
claims that an official has acted in excess of his statutory
authority. See, e. g., Wheeldin v. Wheeler,
373 U. S. 647, 650-652
(1963) (distinguishing between "rights which may arise under the
Fourth Amendment" and "a cause of action for abuse of the
[statutory] subpoena power by a federal officer"); Bivens v. Six
Unknown Fed. Narcotics Agents,
403 U. S. 388, 396-397
(1971) (distinguishing between "actions contrary to [a]
constitutional prohibition," and those "merely said to be in excess
of the authority delegated ... by the Congress").
In Larson v. Domestic and Foreign Commerce Corp.,
337 U. S. 682, 691, n. 11
(1949), for example, we held that sovereign immunity would not
shield an executive officer from suit if the officer acted either
"unconstitutionally or beyond his statutory powers." (Emphasis
added.) If all executive actions in excess of statutory authority
were ipso facto unconstitutional, as the Court of Appeals seemed to
believe, there would have been little need in Larson for our
specifying unconstitutional and ultra vires conduct as separate
categories. See also Dugan v. Rank,
372 U. S. 609, 621-622
(1963); Harmon v. Brucker,
355 U. S. 579, 581 (1958)
("In keeping with our duty to avoid deciding constitutional
questions presented unless essential to proper disposition of a
case, we look first to petitioners' non-constitutional claim that
respondent [Secretary of the Army] acted in excess of powers
granted him by Congress" (emphasis added)).
473
Our decision in Youngstown, supra, does not suggest a different
conclusion. In Youngstown, the Government disclaimed any statutory
authority for the President's seizure of steel mills. See 343 U.
S., at 585 ("[W]e do not understand the Government to rely on
statutory authorization for this seizure"). The only basis of
authority asserted was the President's inherent constitutional
power as the Executive and the Commander in Chief of the Armed
Forces. Id., at 587. Because no statutory authority was claimed,
the case necessarily turned on whether the Constitution authorized
the President's actions. Youngstown thus involved the conceded
absence of any statutory authority, not a claim that the President
acted in excess of such authority. The case cannot be read for the
proposition that an action taken by the President in excess of his
statutory authority necessarily violates the Constitution.5
The decisions cited above establish that claims simply alleging
that the President has exceeded his statutory authority are not
"constitutional" claims, subject to judicial review
5 Panama Refining Co. v.
Ryan, 293 U. S. 388
(1935), the other case (along with
Youngstown) cited in
Franklin v.
Massachusetts, 505 U. S. 788 (1992), as
an example of when we have reviewed the constitutionality of the
President's actions, likewise did not involve a claim that the
President acted in excess of his statutory authority.
Panama
Refining involved the National Industrial Recovery Act, which
delegated to the President the authority to ban interstate
transportation of oil produced in violation of state production and
marketing limits. See 293 U. S., at 406. We struck down an
Executive Order promulgated under that Act not because the
President had acted beyond his statutory authority, but rather
because the Act unconstitutionally delegated Congress' authority to
the President. See
id., at 430. As the Court pointed out, we
were "not dealing with action which, appropriately belonging to the
executive province, is not the subject of judicial review, or with
the presumptions attaching to executive action. To repeat, we are
concerned with the question of the delegation of legislative
power." Id., at 432 (footnote omitted). Respondents have not
alleged that the 1990 Act in itself amounts to an unconstitutional
delegation of authority to the President.
474
under the exception recognized in Franklin.
6 As this case
demonstrates, if every claim alleging that the President exceeded
his statutory authority were considered a constitutional claim, the
exception identified in Franklin would be broadened beyond
recognition. The distinction between claims that an official
exceeded his statutory authority, on the one hand, and claims that
he acted in violation of the Constitution, on the other, is too
well established to permit this sort of evisceration.
So the claim raised here is a statutory one: The President is
said to have violated the terms of the 1990 Act by accepting
procedurally flawed recommendations. The exception identified in
Franklin for review of constitutional claims thus does not apply in
this case. We may assume for the sake of argument that some claims
that the President has violated a statutory mandate are judicially
reviewable outside the framework of the APA. See Dames & Moore
v. Regan,
453 U. S.
654, 667 (1981). But longstanding authority holds that such
review is not available when the statute in question commits the
decision to the discretion of the President.
As we stated in Dakota Central Telephone Co. v. South
Dakota ex rel. Payne,
250 U. S. 163, 184
(1919), where a claim
"concerns not a want of [Presidential] power, but a mere excess
or abuse of discretion in exerting a power given, it is clear that
it involves considerations which are beyond the reach of judicial
power. This must be since, as this court has often pointed out, the
judicial may not invade the legislative or executive departments so
as to correct alleged mistakes or wrongs arising from asserted
abuse of discretion."
6 As one commentator has observed, in cases in which the
President concedes, either implicitly or explicitly, that the only
source of his authority is statutory, no "constitutional question
whatever" is raised. J. Choper, Judicial Review and the National
Political Process 316 (1980). Rather, "the cases concern only
issues of statutory interpretation." Ibid.
475
In a case analogous to the present one, Chicago & Southern
Air Lines, Inc. v. Waterman S. S. Corp.,
333 U. S. 103 (1948), an
airline denied a certificate from the Civil Aeronautics Board to
establish an international air route sought judicial review of the
denial. Although the Civil Aeronautics Act, 49 U. S. C. § 646 (1946
ed.), generally allowed for judicial review of the Board's
decisions, and did not explicitly exclude judicial review of
decisions involving international routes of domestic airlines, we
nonetheless held that review was unavailable. 333 U. S., at
114.
In reasoning pertinent to this case, we first held that the
Board's certification was not reviewable because it was not final
until approved by the President. See
id., at 112-114
("[O]rders of the Board as to certificates for overseas or foreign
air transportation are not mature and are therefore not susceptible
of judicial review at any time before they are finalized by
Presidential approval"). We then concluded that the President's
decision to approve or disapprove the orders was not reviewable,
because "the final orders embody Presidential discretion as to
political matters beyond the competence of the courts to
adjudicate." See
id., at 114. We fully recognized that the
consequence of our decision was to foreclose judicial review:
"The dilemma faced by those who demand judicial review of the
Board's order is that before Presidential approval it is not a
final determination ... and after Presidential approval the whole
order, both in what is approved without change as well as in
amendments which he directs, derives its vitality from the exercise
of unreviewable Presidential discretion." Id., at 113 (emphasis
added).
Although the President's discretion in Waterman S. S. Corp.
derived from the Constitution, we do not believe the result should
be any different when the President's discretion derives from a
valid statute. See Dakota Central Telephone
476
Co., supra, at 184; United States v. George S. Bush & Co.,
310 U. S. 371,
380 (1940).
The 1990 Act does not at all limit the President's discretion in
approving or disapproving the Commission's recommendations. See §
2903(e); see also Specter II, 995 F. 2d, at 413 (Alito, J.,
dissenting). The Third Circuit seemed to believe that the
President's authority to close bases depended on the Secretary's
and Commission's compliance with statutory procedures. This view of
the statute, however, incorrectly conflates the duties of the
Secretary and Commission with the authority of the President. The
President's authority to act is not contingent on the Secretary's
and Commission's fulfillment of all the procedural requirements
imposed upon them by the 1990 Act. Nothing in § 2903(e) requires
the President to determine whether the Secretary or Commission
committed any procedural violations in making their
recommendations, nor does § 2903(e) prohibit the President from
approving recommendations that are procedurally flawed. Indeed,
nothing in § 2903(e) prevents the President from approving or
disapproving the recommendations for whatever reason he sees fit.
See § 2903(e); Specter II, 995 F. 2d, at 413 (Alito, J.,
dissenting).
How the President chooses to exercise the discretion Congress
has granted him is not a matter for our review. See Waterman S. S.
Corp., supra; Dakota Central Telephone Co., supra, at 184. As we
stated in George S. Bush & Co., supra, at 380, "[n]o question
of law is raised when the exercise of [the President's] discretion
is challenged."
III
In sum, we hold that the actions of the Secretary and the
Commission cannot be reviewed under the AP A because they are not
"final agency actions." The actions of the President cannot be
reviewed under the AP A because the President is not an "agency"
under that Act. The claim that the President exceeded his authority
under the 1990 Act is not a con-
477
stitutional claim, but a statutory one. Where a statute, such as
the 1990 Act, commits decisionmaking to the discretion of the
President, judicial review of the President's decision is not
available.
Respondents tell us that failure to allow judicial review here
would virtually repudiate Marbury v. Madison, 1 Cranch 137 (1803),
and nearly two centuries of constitutional adjudication. But our
conclusion that judicial review is not available for respondents'
claim follows from our interpretation of an Act of Congress, by
which we and all federal courts are bound. The judicial power of
the United States conferred by Article III of the Constitution is
upheld just as surely by withholding judicial relief where Congress
has permissibly foreclosed it, as it is by granting such relief
where authorized by the Constitution or by statute.
The judgment of the Court of Appeals is
Reversed.
JUSTICE BLACKMUN, concurring in part and concurring in the
judgment.
I did not join the majority opinion in Franklin v.
Massachusetts,
505 U.
S. 788 (1992), and would not extend that unfortunate holding to
the facts of this case. I nevertheless agree that the Defense Base
Closure and Realignment Act of 1990 "preclud[es] judicial review of
a base-closing decision," post, at 484, and accordingly join
JUSTICE SOUTER'S opinion.
I write separately to underscore what I understand to be the
limited reach of today's decision. The majority and concurring
opinions conclude that the President acts within his unreviewable
discretion in accepting or rejecting a recommended base-closing
list, and that an aggrieved party may not enjoin closure of a duly
selected base as a result of alleged error in the decisionmaking
process. This conclusion, however, does not foreclose judicial
review of a claim, for example, that the President added a base to
the Defense
478
Opinion of SOUTER, J.
Base Closure and Realignment Commission's (Commission's) list in
contravention of his statutory authority. Nor does either opinion
suggest that judicial review would be unavailable for a timely
claim seeking direct relief from a procedural violation, such as a
suit claiming that a scheduled meeting of the Commission should be
public, see § 2903(d), note following 10 U. S. C. § 2687 (1988 ed.,
Supp. IV), or that the Secretary of Defense should publish the
proposed selection criteria and provide an opportunity for public
comment, §§ 2903(b) and (c). Such a suit could be timely brought
and adjudicated without interfering with Congress' intent to
preclude judicial "cherry pick[ingJ" or frustrating the statute's
expedited decisionmaking schedule. See post, at 481. I also do not
understand the majority's Franklin analysis to foreclose such a
suit, since a decision to close the Commission's hearing, for
example, would "'directly affect'" the rights of interested parties
independent of any ultimate Presidential review. See ante, at 470;
cf. FCC v. ITT World Communications, Inc.,
466 U. S. 463 (1984).
With the understanding that neither a challenge to ultra vires
exercise of the President's statutory authority nor a timely
procedural challenge is precluded, I join JUSTICE SOUTER'S
concurrence and Part II of the opinion of the Court.
JUSTICE SOUTER, with whom JUSTICE BLACKMUN, JusTICE STEVENS, and
JUSTICE GINSBURG join, concurring in part and concurring in the
judgment.
I join Part II of the Court's opinion because I think it is
clear that the President acted wholly within the discretion
afforded him by the Defense Base Closure and Realignment Act of
1990 (Act), and because respondents pleaded no constitutional claim
against the President, indeed, no claim against the President at
all. As the Court explains, the Act grants the President unfettered
discretion to accept the Commission's base-closing report or to
reject it, for a good reason, a bad reason, or no reason. See ante,
at 476.
479
It is not necessary to reach the question the Court answers in
Part I, whether the Defense Base Closure and Realignment
Commission's (Commission's) report is final agency action, because
the text, structure, and purpose of the Act compel the conclusion
that judicial review of the Commission's or the Secretary's
compliance with it is precluded. There is, to be sure, a "strong
presumption that Congress did not mean to prohibit all judicial
review." Bowen v. Michigan Academy of Family Physicians,
476 U. S. 667, 672 (1986)
(internal quotation marks and citation omitted). But although no
one feature of the Act, taken alone, is enough to overcome that
strong presumption, I believe that the combination present in this
unusual legislative scheme suffices.
In adopting the Act, Congress was intimately familiar with
repeated, unsuccessful, efforts to close military bases in a
rational and timely manner. See generally Defense Base Closure and
Realignment Commission, Report to the President 1991.1 That history
of frustration is reflected in the Act's text and intricate
structure, which plainly express congressional intent that action
on a base-closing package be quick and final, or no action be taken
at all.
At the heart of the distinctive statutory regime, Congress
placed a series of tight and rigid deadlines on administrative
review and Presidential action, embodied in provisions for three
biennial rounds of base closings, in 1991, 1993, and 1995 (the
"base-closing years"), §§ 2903(b) and (c), note following 10 U. S.
C. § 2687 (1988 ed., Supp. IV), with unbending deadlines prescribed
for each round. The Secretary is obliged to forward base-closing
recommendations to the Commission,
1 See also H. R. Conf. Rep. No. 101-923, p. 705 (1990) (Earlier
base closures had "take[n] a considerable period of time and
involve[d] numerous opportunities for challenges in court");
id., at 707 (Act "would considerably enhance the ability of
the Department of Defense ... promptly [to] implement proposals for
base closures and realignment"); H. R. Rep. No. 101665, p. 384
(1990) ("Expedited procedures ... are essential to make the base
closure process work").
480
Opinion of SOUTER, J.
no later, respectively, than April 15, 1991, March 15, 1993, and
March 15, 1995. § 2903(c). The Comptroller General must submit a
report to Congress and the Commission evaluating the Secretary's
recommendations by April 15 of each base-closing year. §
2903(d)(5). The Commission must then transmit a report to the
President setting out its own recommendations by July 1 of each of
those years. § 2903(d)(2). And in each such year, the President
must, no later than July 15, either approve or disapprove the
Commission's recommendations. § 2903(e)(1). If the President
disapproves the Commission's report, the Commission must send the
President a revised list of recommended base closings, no later
than August 15. § 2903(e)(3). In that event, the President will
have until September 1 to approve the Commission's revised report;
if the President fails to approve the report by that date, then no
bases will be closed that year. § 2903(e)(5). If, however, the
President approves a Commission report within either of the times
allowed, the report becomes effective unless Congress disapproves
the President's decision by joint resolution (passed according to
provisions for expedited and circumscribed internal procedures)
within 45 days. §§ 2904(b)(1)(A), 2908.2
The Act requires that a decision about a base-closing package,
once made, be implemented promptly. Once Congress has declined to
disapprove the President's base-closing decision, the Secretary of
Defense "shall ... close all military installations recommended for
closure." § 2904(a). The Secretary is given just two years after
the President's transmittal to Congress to begin the complicated
process of closing the listed bases and must complete each
base-closing round within six years of the President's transmittal.
See §§ 2904, 2905.
2 To enable Congress to perform this prompt review, the Act
requires the Secretary, the Comptroller General, and the Commission
to provide Congress with information prior to the completion of
Executive Branch review. See §§ 2903(a)(1), (b)(2), (c)(l), and
(d)(3).
481
It is unlikely that Congress would have insisted on such a
timetable for decision and implementation if the base-closing
package would be subject to litigation during the periods allowed,
in which case steps toward closing would either have to be delayed
in deference to the litigation, or the litigation might be rendered
moot by completion of the closing process. That unlikelihood is
underscored by the provision for disbanding the Commission at the
end of each baseclosing decision round, and for terminating it
automatically at the end of 1995, whether or not any bases have
been selected to be closed. If Congress intended judicial review of
individual base-closing decisions, it would be odd indeed to
disband biennially, and at the end of three rounds to terminate,
the only entity authorized to provide further review and
recommendations.
The point that judicial review was probably not intended emerges
again upon considering the linchpin of this unusual statutory
scheme, which is its all-or-nothing feature. The President and
Congress must accept or reject the biennial base-closing
recommendations as a single package. See §§ 2903(e)(2), (e)(3),
(e)(4) (as to the President); §§ 2908(a)(2) and (d)(2) (as to
Congress). Neither the President nor Congress may add a base to the
list or "cherry pick" one from it. This mandate for prompt
acceptance or rejection of the entire package of base closings can
only represent a considered allocation of authority between the
Executive and Legislative Branches to enable each to reach
important, but politically difficult, objectives. Indeed, the
wisdom and ultimate political acceptability of a decision to close
anyone base depends on the other closure decisions joined with it
in a given package, and the decisions made in the second and third
rounds just as surely depend (or will depend) on the particular
content of the package or packages of closings that will have
preceded them. If judicial review could eliminate one base from a
package, the political resolution embodied in that package would be
destroyed; if such review could elimi-
482
Opinion of SOUTER, J.
nate an entire package, or leave its validity in doubt when a
succeeding one had to be devised, the political resolution
necessary to agree on the succeeding package would be rendered the
more difficult, if not impossible. The very reasons that led
Congress by this enactment to bind its hands from untying a
package, once assembled, go far to persuade me that Congress did
not mean the courts to have any such power through judicial
review.
When combined with these strict timetables for decision, the
temporary nature of the Commission, the requirement for prompt
implementation, and the all-or-nothing baseclosing requirement at
the core of the Act, two secondary features of the legislation tend
to reinforce my conclusion that judicial review was not intended.
First, the Act provides nonjudicial opportunities to assess any
procedural (or other) irregularities. The Commission and the
Comptroller General review the Secretary's recommendations, see §§
2903(d)(5), 2903(d)(3), and each can determine whether the
Secretary has provided adequate information for reviewing the
soundness of his recommendations.3 The President may, of course,
also take procedural irregularities into account in deciding
whether to seek new recommendations from the Commission, or in
deciding not to approve the Commission's recommendations
altogether. And, ultimately, Congress may decide during its 45-day
review period whether procedural failings call the Presidentially
approved recommendations so far into question as to justify their
substantive rejection.4
3 Petitioners represent, indeed, that as to the round in
question, the Comptroller General reported to Congress on
procedural irregularities (as well as substantive differences of
opinion) and requested additional information from the Secretary
(which was provided). See Reply Brief for Petitioners 16, n.
12.
4 In approving the base closings for 1991, Congress was
apparently well aware of claims of procedural shortcomings, but
nonetheless chose not to disapprove the list. See Department of
Defense Appropriations Act, 1992, Pub. L. 102-172, §8131, 105 Stat.
1208.
483
Second, the Act does make express provision for judicial review,
but only of objections under the National Environmental Policy Act
of 1969 (NEPA), 83 Stat. 852, as amended, 42 U. S. C. § 4321 et
seq., to implementation plans for a base closing, and only after
the process of selecting a package of bases for closure is
complete. Because NEPA review during the base-closing decision
process had stymied or delayed earlier efforts,5 the Act, unlike
prior legislation addressed to base closing, provides that NEPA has
no application at all until after the President has submitted his
decision to Congress and the process of selecting bases for closure
has been completed. See §2905(c)(1). NEPA then applies only to
claims arising out of actual disposal or relocation of base
property, not to the prior decision to choose one base or another
for closing. § 2905(c)(2). The Act by its terms allows for
"judicial review, with respect to any requirement of [NEP A]" made
applicable to the Act by § 2905(c)(2), but requires the action to
be initiated within 60 days of the Defense Department's act or
omission as to the closing of a base. § 2905(c)(3). This express
provision for judicial review of certain NEP A claims within a
narrow time frame supports the conclusion that the Act precludes
judicial review of other matters, not simply because the Act fails
to provide expressly for such review, but because Congress surely
would have prescribed similar time limits to preserve its
considered schedules if review of other claims had been
intended.
In sum, the text, structure, and purpose of the Act clearly
manifest congressional intent to confine the base-closing selection
process within a narrow time frame before inevitable political
opposition to an individual base closing could become overwhelming,
to ensure that the decisions be implemented promptly, and to limit
acceptance or rejection to a package of base closings as a whole,
for the sake of political feasibility. While no one aspect of the
Act, standing alone,
5 See, e.
g., H. R. Com. Rep. No. 100-1071, p. 23
(1988).
484
Opinion of SOUTER, J.
would suffice to overcome the strong presumption in favor of
judicial review, this structure (combined with the Act's provision
for Executive and congressional review, and its requirement of
time-constrained judicial review of implementation under NEPA) can
be understood no other way than as precluding judicial review of a
base-closing decision under the scheme that Congress, out of its
doleful experience, chose to enact. I conclude accordingly that the
Act forecloses such judicial review.
I thus join in Part II of the opinion of the Court, and in its
judgment.
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