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THE U.S. SUPREME COURT'S DECISION ON THE BASE CLOSURE AND REALIGNMENT ACT OF 1990 (Senate - May 23, 1994)

[Page: S6180]

Mr. SPECTER. Madam President, I have sought recognition to comment on a decision handed down this morning by the Supreme Court of the United States providing an interpretation of the Base Closure and Realignment Act of 1990.

In making these comments, I do so as both a U.S. Senator, and with the special interest of being a Senator from the Commonwealth of Pennsylvania in commenting about the decision which affects the Philadelphia Navy Yard.

I state at the outset that the State interest I have as a Senator from Pennsylvania and the interest that I have exhibited in defending the Philadelphia Navy Yard through the base closing procedures and in initiating a lawsuit in the U.S. District Court for the Eastern District of Pennsylvania, which went through the Court of Appeals of the Third Circuit on two occasions, where that distinguished court decided that the case was subject to judicial review, and then an appeal was taken, or certiorari was granted by the Supreme Court of the United States. That Court has now said there is no judicial review under the Base Closure Act. So I have a special interest, in a sense, as a Senator from Pennsylvania, but I speak from my broader responsibilities as a U.S. Senator, in terms of what is good for the Nation and what is appropriate and fair for the Nation.

In deciding that there was no judicial review--that is, no review by the Federal courts for action taken by the Base Closing Commission--the Supreme Court has slammed the door on a factual situation where there is documentary evidence that there was fraud perpetrated by the Department of the Navy, and the evidence is present in documents and reports signed by two admirals of the U.S. Navy, Admiral Claman and Admiral Hekman, that the navy yard in Philadelphia should remain open.

The Navy made a conscious decision to keep those reports from the Congress and from the Base Closing Commission. There is no doubt that in doing so the Navy violated the express requirements of the Base Closing Act that all materials had to be made available to the General Accounting Office, which is an arm of Congress. There is no doubt that the Department of the Navy violated the requirements of law that there be a hearing, because there could not be a meaningful hearing, if that kind of relevant evidence was concealed and kept from the public, from Members of Congress, the House and Senate, and kept from the Base Closing Commission. And the Supreme Court of the United States has handed down this decision today in a hypertechnical interpretation of the Administrative Procedure Act, involving an interpretation of Presidential action, making a surprising distinction between the President's authority under the Constitution and the President's authority to interpret a statute, or to act under a statute.

Madam President, I believe that it is beyond any doubt that when the Congress of the United States established the base closing procedure and put in the introductory paragraph regarding Congress' determination to establish a fair procedure, the Congress did not contemplate that any base would be closed in America with the Navy concealing critical evidence.

There is no doubt that the Navy did conceal critical evidence based upon the facts of the case and documentary evidence. This is not a whisper on a street corner, and this is not hearsay; these are Navy reports signed by ranking admirals, Admiral Claman and Admiral Hekman, that the navy yard should be kept open.

To preclude the courts of the United States from reopening and redressing the claims of citizens to see to it that there is fairness is really beyond the pale of what has been the tradition of judicial review in this country. When someone enters the Supreme Court of the United States, the first insignia emblazoned on the wall is the authority of the Court, under judicial review on Marbury versus Madison, a case handed down in 1803 which establishes protection for basic rights and freedoms for citizens of this country, that the acts of the President and the Congress and acts of the administrative agencies will be reviewed by the courts, which are the protectors of those freedoms.

The Supreme Court of the United States, with five of the Justices speaking, said that the Administrative Procedure Act does not permit review because there was not final agency action. What does that mean? The Court says that the Administrative Procedure Act only allows judicial review if the agency is the last one to act. In this case, the agency is the Base Closing Commission. But the Court says that because the President had the responsibility either to approve or disapprove of the entire list, it is not final agency action and, therefore, there is no review by the Federal courts.

This decision was based on Franklin versus Massachusetts, a case handed down in 1992 where the Secretary of Commerce, Barbara Franklin, had issued a certification as to how many U.S. House Members the Commonwealth of Massachusetts was entitled to. That was a 5-to-4 decision, Franklin versus Massachusetts, with four dissenters in that case, saying that there should be review by the courts of administrative actions, without a hypertechnical distinction as to what the President does or does not do within a limited range of discretion after an administrative agency has acted.

I suggest, Madam President, that the time has come for the Congress to review the provisions of the Administrative Procedure Act when the Supreme Court of the United States hands down a series of decisions which are very hard to understand, virtually inexplicable, on a 5-to-4 reading. If I take Franklin versus Massachusetts, it is very difficult to see where the line goes and what the line is.

The right of judicial review, to be able to go to the courts after the bureaucracy has acted, is a very fundamental right in our society. This right ought not to be precluded under some whimsical interpretation that is very hard to discern, which results in the exclusion of citizens who have grievances as a result of administrative action from having them reviewed by the courts.

May I emphasize, Madam President, that this is not a decision as to whether the navy yard should be kept open or closed, but only whether the courts of the United States ought to have the authority and power to review that decision by an agency, the Base Closing Commission, where there is documentary evidence of fraud by the Department of the Navy, because the Navy concealed reports from two admirals who said the yard should be kept open.

Further, under the pleadings which are accepted as true for the purposes of the legal procedure, the Navy instructed Admiral Clayman not to appear before the Base Closing Commission.

Five Justices of the Supreme Court, as I say, decided the case that the Administrative Procedure Act did not allow review, and went on to say in part 2 of the Supreme Court's opinion, joined in by the other four Justices so that it was a unanimous opinion, although disagreement with four of the Justices on the underlying reasons where in part 2 of the majority opinion the Court says that the President's action in acting under the statute is not subject to judicial review, and the Court makes a distinction between where the President exceeds his authority under the Constitution, on the one hand, and claims that he acted in violation of the statute, on the other hand, as set forth on that page 12 of the slip opinion.

Madam President, if the President of the United States does not have the authority to act under a statute, that ought to render whatever he does null and void, just as the Supreme Court concedes that if the President does not have the authority to act under the Constitution of the United States where his authority is claimed to rest under the Constitution, then it is conceded that the Presidential action is not legal and is not binding.

At page 14 of the slip opinion the Supreme Court of the United States says:

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.

And the Court goes on to say a little later:

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Indeed, nothing in section 2903(e) prevents the President from approving or disapproving the recommendations for whatever reason he sees fit.

In the concurring opinion, the same thought is expressed in this way 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.

I submit, Madam President, that that judicial interpretation is far from a reasonable statement as to what the Congress intended, where the Congress has set down what it concludes is a fair process and requires that all information be turned over to the General Accounting Office and to the Congress. That is, all the cards have to be put face up so that we all know what the facts are and can have a hearing on the facts to present arguments one way or another. In this case, the conclusive evidence supported by undisputed documents--two admirals said the yard should be kept open--that that does not authorize the President of the United States to act for a bad reason or for no reason at all, and that it has realistically reviewed the intent of the Congress that if these requirements are not met then there ought to be judicial review to see if the entire process was legal.

Before this matter was acted upon by the full Congress, by the Senate and by the House, there was a hearing before the Armed Services Committee. The subcommittee chairman was the distinguished former Senator from Illinois, Senator Dixon. When I raised these considerations with Senator Dixon, he said those matters have to be reviewed by the courts, because Senator Dixon felt that the Subcommittee on Armed Services was not equipped, competent, or could not take the time to get into a consideration of what is essentially a judicial question.

We did not ask the courts to pass upon whether there was a force structure decision by the Department of Defense which was subject to judicial review, nor we did not ask the courts to decide any question which bore upon military expertise. Those are matters for the Department of Defense and are clearly outside of the scope of judicial review.

But where you have an issue as to whether the procedural requirements were met; that is, were all the facts set forth, and was there a hearing, those are circumstances which are peculiarly subject to judicial review, and that was not held in this case.

Madam President, the Congress has the authority to modify the Administrative Procedure Act, and consideration should be given by the Congress to doing just that where you have these fuzzy 5-to-4 decisions which go all over the lot. But if you try to trace a clear-cut line on decisions by the courts on the Administrative Procedure Act, it is a maze that is not subject to any clear-cut interpretation. There has been a generalized statement of a presumption in favor of judicial review, but regrettably that is not followed in many, many cases, as evidenced by Franklin versus Massachusetts which I discussed a few moments ago, or by the Navy Yard case which was handed down today.

When the Court takes the totality of the act and comes to a conclusion that there was not congressional intent to have judicial review, then it points up a factor that in the Congress we must be more alert to making an express statement as to the availability of judicial review and not relying upon the well-established presumption by which the Court concedes that judicial review is ordinarily presumed. But where you have a tortured decision which seeks, realistically viewed, to protect the base-closing law and excludes the presentation of evidence of fraud and concealment, it seems to me that the court just goes much too far.

There have been some 310 proceedings, Madam President, for base closure and realignments. Only a very few of them have gone to court. And among the few which have gone to court, none presents facts like the Philadelphia Navy Yard, where there is documentary evidence of fraud and deceit.

I have taken these few minutes, Madam President, to review this case which was handed down today. I shall be giving it further study with a view as to what action I think should be appropriate, and further study in conferring with my colleagues on the matter as to what action the Congress should take on amending the Administrative Procedure Act to see to it that the courts are open, what further action we should take with respect to the base-closure law, making sure that a claim of outright fraud supported by conclusive documentary evidence is not shunted aside by the courts.

For the Congress to act to be sure that the precepts of Marbury versus Madison, which is a fundamental distinction of the United States of America from every other country on Earth, and that is judicial review, and where the majority opinion says that the courts exercise judicial review as much by declining to exercise it as by exercising it, is a conclusion which leaves me in great doubt. And that the hallmark of democratic society and the protection of individual rights ought not to be to abandon judicial review and to countenance a court which is going to say there is as much judicial review where the Supreme Court declines to exercise it, as there is where the Court does exercise judicial review.

The questions in this case, Madam President, go far beyond the Philadelphia Navy Yard. They go far beyond the special interests of the Commonwealth of Pennsylvania, and they go far beyond what I have undertaken in this case captioned John Dalton versus Arlen Specter to mean, because if this case stands without any additional review or action by the Congress, then the ambit of judicial review for what the bureaucracy does is tightened even further. And we all know that the bureaucracy in Government ought to be subject to restraints by the court.

If anyone can read our Base Closure Act as sanctioning this kind of fraud by the Department of the Navy, then it is time that the Congress made a modification, which we have the full power to do.

As I say, I will be consulting with my colleagues to draw some idea as to what may be deemed appropriate. But I think this is a very, very, very important decision touching on basic liberties and freedoms and the sanctity of judicial review. So I have seen fit to call it to the attention of my colleagues today.

Madam President, I ask unanimous consent that the full text of the majority opinion and the two concurring opinions be printed in the Record following my statement.

There being no objection, the material was ordered to be printed in the Record, as follows:

Supreme Court of the United States

[SUPREME COURT OF THE UNITED STATES]

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

[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. --, 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. 6-15.

(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 action' within the meaning of the APA, since their reports recommending base closings carry no direct consequences. See 505 U.S., at --. Rather, the action that `will directly affect' bases, id., at --, 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--. 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--. Pp. 6-9.

(b) The Court of Appeals erred in ruling that the President's base closure decisions are reviewable for constitutionality. Every action by 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 & 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. 9-14.

(e) 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. P. 15.

995 F. 2d 404, reversed.

Rehnquist, C.J., delivered the opinion of the Court, in which O'Connor, Scalia, Kennedy, and Thomas, JJ., joined, and in Part II of which Blackmun, Stevens, Souter, and Ginsburg, JJ., also joined. Blackmun, J., filed an opinion concurring in part and concurring in the judgment. Souter, J., filed an opinion concurring in part and concurring in the judgment, in which Blackmun, Stevens, and Ginsburg, JJ., joined.

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Supreme Court of the United States

[SUPREME COURT OF THE UNITED STATES]

John H. Dalton, Secretary of the Navy, et al., Petitioners v. Arlen Specter et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 93-289, May 23, 1994

[NO. 93-289, MAY 23, 1994]

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 Shippyard. 1

This decision was made pursuant to the Defense Base Closure and Realignment Act of 1990 (1990 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.

1 Footnotes at end of article.

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 successive rounds of base closings--in 1991, 1993, and 1995, respectively, Sec. 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)(1)(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. Sec. 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. Sec. 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. Sec. 2904(a) and (b)(1).

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 of 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 disapproved by a vote of 364 to 60.

Two days before the President submitted his certification of approval of 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 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 APA, because the 1991 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: (1992), in which we addressed the existence of `final agency action' in a suit seeking APA 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 a statutory formula. We concluded both that the Secretary's report was not `final agency action' reviewable under the APA, and that the APA does not apply to the President. Id., at--(slip op., at 6-12). 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 judgement of the Court of Appeals, and remanded for further consideration in light of Franklin. 506 U.S: (1992).

One 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. Barrett, 995 F. 2d 404 (1993) (Specter II). Although apparently recognizing that APA 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. Id., at 408-409. Petitioners again sought our review, and we granted certiorari. 510 U.S: (1993). We now reverse.

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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 APA. 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--(slip op., at 1). 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 APA and the Constitution. In reviewing the former, we 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--(slip op., at 9).

We next held that the President's actions were not reviewable under the APA, because the President is not an `agency' within the meaning of the APA. Id., at--(slip op., at 11-12) (`As the APA 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 APA. Id., at--(slip op., at 11-12). 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. v. Ryan, 293 U.S. 388 (1935)).

In this case, respondents brought suit under the APA, alleging that the Secretary and the Commission did not follow the procedural mandates of the 1990 Act. But here, as in Franklin, prerequisite to review under the APA--`final agency action'--is lacking. The reports submitted by the Secretary of Defense and the Commission, like the report of the Secretary of Commerce in Franklin, `carr[y] no direct consequences' for base closing. Id., at--(slip op., at 9). The action that `will directly affect' the military bases id., at--(slip op., at 7), 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 that a final and binding determination.' Id., at--(Slip op., at 9). The reports are, `like the ruling of a subordinate official, not final and therefore not subject to review.' Ibid. (international 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--(slip op., at 11-12).

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 --(slip op., at 11-12).

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. Franklin, 505 U.S., at--(slip op., at 10). 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--(slip op., at 7). 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--(slip op., at 10). Accordingly, we hold that the decisions made pursuant to the 1990 Act are not reviewable under the APA. Accord, Cohen v. Rice, 992 F. 2d 376 (CA1 1993).

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, 995 F. 2d, 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 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 & 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)).

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 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.'

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 (`orders 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 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 Sec. 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.'

[Page: S6184]

III

In sum, we hold that the actions of the Secretary and the Commission cannot be reviewed under the APA because they are not `final agency actions.' The actions of the President cannot be reviewed under the APA 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 constitutional 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.

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Supreme Court of the United States

[SUPREME COURT OF THE UNITED STATES]

John H. Dalton, Secretary of the Navy, et al., Petitioners v. Arlen Specter et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

[No. 93-289, May 23, 1994

Justice Blackmun, concurring in part and concurring in the judgment.

I did not join the majority opinion in Franklin v. Massachusetts, 505 U.S: (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 7, and accordingly join Justice Souter's opinion.

I write separately to underscore what I understand to be the limited reach of today's decision. Each of the majority and concurring opinions concludes 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 decision-making process. This conclusion, however, does not foreclose judicial review of a claim, for example, that the President added a base to the 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. Sec. 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 picking' or frustrating the statute's expedited decision-making schedule. See post, at 4. 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 8; cf. ITT World Communications, Inc. v. FCC, 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.

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--

Supreme Court of the United States

[SUPREME COURT OF THE UNITED STATES]

John H. Dalton, Secretary of the Navy, et al., Petitioners v. Arlen Specter et al.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 93-289, May 23, 1994

[NO. 93-289, MAY 23, 1994]

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 14.

It is not necessary to reach the question the Court answers in Part I, whether the 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. 7 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. Sec. 2687 (1988 ed., Supp. IV), with unbending deadlines prescribed for each round. The Secretary is obliged to forward base-closing recommendations to the Commission, 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. Sec. 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. 8

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 Sec. 2904, 2905.

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 base-closing 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); Sec. 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 any one 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 eliminate 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 base-closing requirements 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. 9 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. 10

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, 11 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 Sec. 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 [NEPA]' 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 NEPA 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, 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.

[Page: S6185]

FOOTNOTES

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. Sec. 2687 (1988 ed., Supp. IV).

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) (Specter I). Respondents did not seek further review of that ruling, and it is not at issue here.

4 See Specter v. Garrett, 995 F. 2d 404, 412 (1993) (Specter II) (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 Procedures Act').

5 Panama Refining Co. v. Ryan, 293 U.S. 388 (1935), the other case (along with Youngstown) cited in Franklin 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.

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.

7 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. 101-665, p. 384 (1990) (`Expedited procedures * * * are essential to make the base closure process work').

8 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 Sec. 2903(a)(1), (b)(2), (c)(1), and (d)(3).

9 Petitioners represent, indeed, that as to the round in question, the Comptroller General reported to Congress on procedural irregularities (as well as substantive difference of opinion) and requested additional information from the Secretary (which was provided). See Reply Brief for Petitioners 16, n. 12.

10 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, Sec. 8131, 105 Stat. 1208.

11 See, e.g., H.R. Conf. Rep. No. 100-1071, p. 23 (1988).

Mr. SPECTER. I thank the Chair.

I yield the floor. With the absence of any other Senator, I suggest the absence of a quorum.

The PRESIDING OFFICER. The clerk will call the roll.

The assistant legislative clerk proceeded to call the roll.

[Page: S6186]

Mr. WOFFORD. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER. Without objection, it is so ordered.

END