The reviewability of the president's statutory powers

Vanderbilt Law Review

Volumn 62, Issue 4, 2009, Pages 1171-1213

  Stack, Kevin M ^a  

^a VANDERBILT UNIVERSITY LAW SCHOOL   (United States)

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EID: 70049091616     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (269)

1. 5 U.S. (1 Cranch) 137, 155-68 (1803) (examining whether Secretary of State's action, at President's apparent behest, not to deliver commission to Marbury violated act of Congress)
2. 5 U.S. (1 Cranch) 137, 155-68 (1803) (examining whether Secretary of State's action, at President's apparent behest, not to deliver commission to Marbury violated act of Congress); Thomas W. Merrill, Marbury v. Madison as the First Great Administrative Law Decision, 37 J. MARSHALL L. REV. 481, 486-501 (2004) (examining Marbury's review of executive compliance with statute).
3. 6 U.S. (2 Cranch) 170, 179 (1804) (holding official liable for acting under a President's order that lacked statutory authority).
4. 343 U.S. 579, 582 (1952). Although in Youngstown, the government did not rely on statutory authorization, see id. at 585 ("[W]e do not understand the Government to rely on statutory authorization for this seizure.");
5. see also Dalton v. Specter, 511 U.S. 462, 473 (1992) (confirming this reading of Youngstown), the three-part framework for judicial review of the President's actions set forth in Justice Jackson's concurring opinion clearly contemplates review of whether the President acts "pursuant" to statute. 343 U.S. at 634-35. The Supreme Court has embraced Justice Jackson's framework as the grounding structure for review of the President's actions.
6. See, e.g., Dames & Moore v. Regan, 453 U.S. 654, 669 (1981) ("[W]e have in the past found and do today find Justice Jackson's classification of executive actions into three general categories analytically useful⋯.").
7. 453 U.S. at 668-686 (concluding that President's orders of attachment and suspension of claims had legislative authorization, while not determining which statute authorized the suspension).
8. 542 U.S. 507, 516-24 (2004) (plurality opinion) (concluding that Authorization for Use of Military Force ("AUMF") authorized President to order detention of enemy combatants). 6. 548 U.S. 557, 592-623 (2006) (concluding that President lacked authority under statute to try combatant for conspiracy before military commission as currently structured).
9. 128 S. Ct. 1346, 1369-71 (2008) (concluding that President's order to comply with non- self-executing treaty lacked necessary legislative authorization). But see Ingrid Wuerth, Medellín: The New, New Formalism?, 13 lewis & clark l. REV. 1, 6 (2009) (arguing that the Medellín Court's reliance on Youngstown was misplaced in the context of treaty interpretation).
10. 250 U.S. 163, 183-184 (1919).
11. J. Res., 65th Cong., 40 Stat. 904 (1918).
12. Dakota Cent., 250 U.S. at 182.
13. Id. at 184.
14. Id.
15. See, e.g., Wilkes v. Dinsman, 48 U.S. (7 How.) 89, 131-132 (1849) (invoking doctrine to bar review of actions of commanding officer of a squadron);
16. see infra Parts IB, II.B.
17. Pub. L. No.79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C.);
18. see also infra text accompanying notes 80-93.
19. Franklin v. Massachusetts, 505 U.S. 788, 801 (1992).
20. See infra Parts II.B-C.
21. See JOHN PRESTON COMER, LEGISLATIVE FUNCTIONS OF NATIONAL ADMINISTRATIVE AUTHORITIES 64-77 (1927) (describing early contingent legislation).
22. See id. (describing such legislation's history);
23. see, e.g., Act of Feb. 28, 1795, ch. 36, 1 Stat. 424 ("[W]henever the United States shall be invaded, or be in imminent danger of invasion from any foreign nation or Indian tribe, it shall be lawful for the President of the United States to call forth such number of militia of the state ⋯ as he shall think proper.").
24. Act of May 6, 1822, ch. 56, §1,3 Stat. 681, 681: [O]n satisfactory evidence being given to the President of the United States that the ports in the islands or colonies in the West Indies, under the dominion of Great Britain, have been opened to the vessels of the United States, the President shall be, and hereby is, authorized to issue his proclamation, declaring that the ports of the United States shall thereafter be open to the vessels of Great Britain ⋯.
25. Henry J. Hyde United States-India Peaceful Atomic Energy Cooperation Act of 2006, Pub. L. No.109-401, §104, 120 Stat. 2726, 2729.
26. See, e.g., 40 U.S.C. §574(d) (2006) (allowing an executive agency to receive property instead of cash under a real property contract if the President determines the property to be a strategic or critical material);
27. id. §11331 (2006) (granting the President power to approve or disapprove federal information system guidelines if he determines such action to be in the public interest); 46 U.S.C. §60304 (2006) (granting the President the authority to suspend special tonnage taxes if the President is satisfied that foreign country does not impose discriminating or countervailing duties);
28. id. §60505(a) (2006) (granting the President the power to suspend commercial privileges to foreign vessels where the foreign country does not grant vessels from the United States the same privileges).
29. Indeed, as originally understood, it was the statute's specification of the contingency that validated the delegation in response to the argument that it amounted to an unconstitutional grant of legislative authority to the President. See Field v. Clark, 143 U.S. 649, 693 (1892) ("Legislative power was exercised when Congress declared that the suspension [of tariffs] should take effect upon a named contingency.");
30. Gary Lawson, Delegation and Original Meaning, 88 VA. L. REV. 327, 363-367 (2002) (explaining how the specification of the contingency upon which effectiveness of the law would depend validated these early delegations from nondelegation challenge).
31. See, e.g., Curtis A. Bradley & Jack L. Goldsmith, Congressional Authorization and the War on Terrorism, 118 HARV. L. REV. 2047, 2083-2106 (2005) (defending a framework to review the President's powers under the AUMF);
32. William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1085-1179 (2008) (providing a comprehensive treatment of deference to executive actors, including the President);
33. Jack Goldsmith & John F. Manning, The President's Completion Power, 115 YALE L.J. 2280, 2301 (2006) (arguing Article II justifies reviewing courts upholding the President's power to complete statutory schemes, subject to congressional override);
34. Kevin M. Stack, The President's Statutory Powers to Administer the Laws, 106 COLUM. L. REV. 263, 304-310 (2006) [hereinafter Stack, Statutory Powers] (arguing that under Mead, Chevron deference should apply to the President's statutory interpretation, when the statute delegates authority to the President in name);
35. Kevin M. Stack, The Statutory President, 90 LOWA L. REV. 539, 590-599 (2005) [hereinafter Stack, Statutory President] (arguing that under Chevron, deference should apply to the President's statutory interpretation when the statute delegates authority to the President in name);
36. Cass r. Sunstein, Beyond Marbury: The Executive's Power to Say What the Law Is, 115 YALE L.J. 2580, 2603-04 (2006) (arguing for reading Mead to allow the President to qualify for Chevron deference).
37. A notable exception is Larry Alexander & Evan Tsen Lee, Is There Such a Thing as Extraconstitutionality?: The Puzzling Case of Dalton v. Specter, 27 ARIZ. ST. L.J. 845, 848-859 (1995).
38. It is critical to distinguish the reviewability of the President's assertions of statutory authority from the prospect of a judicial injunction directly against the President's action. As the Supreme Court made clear in Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866), in general, the federal courts have "no jurisdiction of a bill to enjoin the President in the performance of his official duties."
39. Id. at 501.
40. Neither the legislative department, nor the President, the Court explained, may be "restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance."
41. Id. at 500.
42. Review of the President's assertions of statutory authority can typically be obtained outside of a suit that requires granting injunctive relief against the President.
43. Federal Tort Claims Act, Pub. L. No.79-601, 60 Stat. 812 (1946) (codified as amended in scattered sections of 28 U.S.C).
44. To the extent an independent remedy is available for constitutional violations under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), qualified immunity shields officers from liability for all but clear constitutional violations.
45. See infra text accompanying notes 101-105.
46. Administrative Procedure Act, Pub. L. No.79-404, 60 Stat. 237 (1946) (codified as amended in scattered sections of 5 U.S.C).
47. 5 U.S.C. §703 (2006) ('The form of proceeding of judicial review is ⋯ in the absence or inadequacy⋯ of a [special statutory review proceeding], any applicable form of legal action, including actions for declaratory judgments or writs of prohibitory or mandatory injunction or habeas corpus, in a court of competent jurisdiction.");
48. see peter L. strauss et al., gellhorn and Byse's Administrative Law: Cases and Comments 1111(10th ed. 2003) (noting that §703 acknowledge "tradition of non-statutory review").
49. The ultra vires vocabulary is awkward in one way with regard to the President. Ultra vires implies the absence of all legal authority, not just statutory authority. With regard to administrative officials, their only source of authority is granted by Congress, see Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) ("It is axiomatic that an administrative agency's power ⋯ is limited to the authority delegated by Congress."), and as a result there is no difference between their actions being without statutory authority and ultra vires. The President's actions might be justified by Article II of the Constitution, even if not by statute. By advocating that judicial review of the President's claims of statutory authority be conceived of as a branch of ultra vires review, I of course do not mean to deny that the President could still be authorized independently by the Constitution; I mean only to capture the traditional scope of ultra vires review. This awkwardness has not prevented some judges from suggesting ultra vires is available to review the President's authority under statute, though they generally have done so without much discussion.
50. See, e.g., Dalton v. Specter, 511 U.S. 462, 478 (1994) (Blackmun, J., concurring in part and concurring in the judgment) ("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⋯.") ;
51. Mountain States Legal Found, v. Bush, 306 F.3d 1132, 1136 (D.C. Cir. 2002) (suggesting ultra vires review of President's authority under statute is available, but declining to engage in such review based on absence of allegations of sufficient facts to support ultra vires claim).
52. Jerry L. Mashaw, Recovering American Administrative Law: Federalist Foundations, 1787 - 1801, 115 YALE L.J. 1256, 1334 (2006).
53. Id.
54. Thomas W. Merrill, The Origins of the Appellate Review Model of Administrative Law 10 (Apr. 20, 2009) (unpublished manuscript, on file with the Vanderbilt Law Review) ('The appropriate form of action was dictated in part by inherited English conventions as modified by American statutes and precedents, and in part by circumstances, e.g., whether the government agent was withholding or taking away property or some other vested right.")
55. Mashaw, supra note 30, at 1334; Ann Woolhandler, Judicial Deference to Administrative Action-A Revisionist History, 43 ADMIN. L. REV. 197, 204 (1991);
56. Merrill, supra note 31, at 11.
57. Mashaw, supra note 30, at 1334;
58. Woolhandler, supra note 32, at 204;
59. Merrill, supra note 31, at 11.
60. Mashaw, supra note 30, at 1334.
61. Id.
62. As Bruce Wyman put the point with nineteenth-century confidence in his early treatise on administrative law, "action in accordance with legal authorization is legal and the official so acting will always be justified; and that action without warrant in the law is illegal, and the official so acting will always be considered a private wrong-doer." bruce wyman, the Principles of the Administrative Law Governing the Relations of Public Officers 9-10 (1903);
63. see also Woolhandler, supra note 32, at 204 ("If his invasion of the citizen's interest were not justified by statutory authority, the official was treated as a private person who had committed a tort or other legal wrong.");
64. id. at 208 (noting that no good faith immunity could be obtained).
65. Merrill, supra note 31, at 11.
66. Woolhandler, supra note 32, at 204;
67. Merrill, supra note 31, at 12.
68. See Woolhandler, supra note 32, at 210-211 (describing the court's review).
69. Mashaw, supra note 30, at 1334.
70. 6 U.S. (2 Cranch) 170, 178-179 (1804).
71. Id.
72. Id at 177-78 (emphasis added) (referring to Act of Feb. 9, 1799).
73. Id. at 178.
74. Id. at 177-78; see David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-A Constitutional History, 121 harv. L. rev. 941, 969-970 (2008) [hereinafter Barron & Lederman, Constitutional History] (commenting that "a statute authorizing seizure of ships heading in one direction implicitly restricted what might otherwise have been the Commander in Chief's constitutional authority to seize ships going in the opposite direction").
75. Little, 6 U.S. at 178.
76. Id. at 179.
77. Id.
78. Chief Justice Marshall confessed that his first view was that the "instructions of the executive⋯ might yet excuse from damages," but he became convinced "I was mistaken, and have receded from this first opinion."
79. Id.
80. Martin v. Mott, 25 U.S. (12 Wheat) 19, 30 (1827).
81. Id.
82. Id. at 20-21.
83. Act of Feb. 28, 1795, 1 Stat. 424.
84. Id. §1.
85. Mott, 25 U.S. at 29, 32. Mott also challenged the President's action on constitutional and other grounds.
86. Id. at 33.
87. Id. at 31-32.
88. Id. at 32.
89. As the court in Vanderheyden v. Young, 11 Johns. 150, 158 (N.Y. Sup. Ct. 1814), upon which Martin v. Mott relies, states: In a military point of view, the contrary doctrine would be subversive of all discipline; and as it regards the safety and security of the United States and its citizens, the consequences would be deplorable and fatal. It is not necessary, therefore, to set forth the occurrences of these events in the pleas, as a justification of the defendant's conduct, because they were not, and could not be matter of trial.
90. See Daniel A. Crane, Antitrust Antifederalism, 96 CAL. L. REV. 1, 36-38 (2008) (describing how culture of jury avoidance shapes antitrust law, for the worse).
91. See COMER, supra note 17, at 64-80 (describing early contingent form delegations); Lawson, supra note 22, at 363-372 (providing account of early contingent delegations).
92. See Jerry L. Mashaw, Greed, Chaos, and Governance: Using Public Choice to Improve Public Law 132-133 (1999) (discussing contingency theory);
93. Lawson, supra note 22, at 363-372 (same);
94. Kevin M. Stack, The Constitutional Foundations of Chenery, 116 yale L.J. 952, 983-986 (2007) [hereinafter Stack, Chenery] (same).
95. Marshall Field & Co. v. Clark, 143 U.S. 649, 693 (1892).
96. Id.
97. 25 U.S. (12 Wheat) 19, 32 (1827).
98. 250 U.S. 163 (1919).
99. 310 U.S. 371 (1940).
100. 250 U.S. at 181 (quoting Joint Resolution of July 16, 1918, 40 Stat. 904).
101. See id. at 182-183 (quoting President Wilson's Proclamation of July 22, 1918).
102. Brief of Defendant in Error, Dakota Cent. Tel. Co. v. South Dakota ex rel. Payne, 250 U.S. 163 (1919) (No.967).
103. Id. at 33.
104. Id. at 31.
105. Id. at 31-32 (emphasis added). Further, South Dakota argued that even if the President or Postmaster General had declared the rate increases necessary as a war measure, "it would be the duty and within the jurisdiction of the court to review such a determination and determine whether as a matter of fact it was true."
106. Id. at 32.
107. Dakota Cent, 250 U.S. at 184 (emphasis added).
108. Id. While the Supreme Court in Baker v. Carr, 369 U.S. 186 (1962), later noted that the duration of hostilities may be finally committed to the political departments' determination under the political question doctrine, the Court in Baker remained dismissive of Dakota Central.
109. Id. at 214 n.40 (relegating Dakota Central to an unexplained "but cf." citation). Despite the political question doctrine's general applicability to the cessation of hostilities, the Court in Baker remarked, "[A] Court is not at liberty to shut its eyes to an obvious mistake, when the validity of the law depends upon the truth of what is declared. ⋯ [It can] inquire whether the exigency still existed upon which the continued operation of the law depended."
110. Id. at 214 (quoting Chastleton Corp. v. Sinclair, 264 U.S. 543, 547-548 (1924)).
111. Brief of Defendant in Error, supra note 67, at 32.
112. United States v. George S. Bush & Co., 310 U.S. 371, 379 (1940). The Tariff Commission had set tariffs on Japanese canned goods by calculating their cost of production for a two year period by converting those costs to dollars based on the average conversion rate of the second year of the period.
113. Id. at 377.
114. Id. at 376-377 (quoting Tariff Act of 1930 §366(c), 46 Stat. 590).
115. Id. at 377.
116. Id. at 380 (quoting Martin v. Mott, 25 U.S. (12 Wheat) 19, 31-32 (1827));
117. see also id. at 379-380 ("[T]he judgment of the President that on the facts, adduced in pursuance of the procedure prescribed by Congress, a change of rate is necessary is no more subject to judicial review under this statutory scheme than if Congress itself had exercised that judgment.").
118. Id. 380.
119. Id. The Court also noted that under the Constitution it is "exclusively for Congress, or those to whom it delegates authority, to determine what tariffs shall be imposed."
120. Id.
121. 5 U.S.C. §702 (2006) (creating right of review);
122. Id. §701 (defining scope of judicial review provision's application);
123. Id. §704 (defining actions reviewable);
124. id. §706 (defining scope of review).
125. Id. §706.
126. Id. §706(2)(A).
127. Id. §706(2)(C).
128. Id. §558(b).
129. Ronald M. Levin, Identifying Questions of Law in Administrative Law, 74 GEO. L.J. 1, 25 (1985) ("Where the agency's understanding of its congressional mandate is in question, the court must resolve that controversy through independent judgment.").
130. Henry Paul Monaghan, Constitutional Fact Review, 85 Colum. L. REV. 229, 236 (1985).
131. 5 U.S.C. §702.
132. Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (stating that APA §702 creates a presumption of reviewability).
133. 5 U.S.C. §701(a)(1).
134. Id. §701(a)(2).
135. Block v. Cmty. Nutrition Inst., 467 U.S. 340, 351 (1984).
136. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).
137. Heckler v. Chaney, 470 U.S. 821, 830 (1985).
138. See Karen Lin, Note, An Unintended Double Standard of Liability: The Effect of the Westfall Act on the Alien Tort Claims Act, 108 Colum. L. rev. 1718, 1720-1726 (2008) (giving the history of pre-Westfall Act immunity).
139. 28 U.S.C. § 2671.
140. Federal Tort Claims Act, Pub. L. No.79-601, §410, 60 Stat. 812, 842-844 (1946) (codified, as amended, at 28 U.S.C. § §1346(b), 2671-2680).
141. See id. §410(b) (establishing judgment as a bar to legal action against a government employee);
142. id. §402(c) (as amended and codified at 28 U.S.C. §2671) (" 'Acting within the scope of his office or employment,' in the case of a member of the military or naval forces of the United States or a member of the National Guard as defined in section 101(3) of title 32, means acting in line of duty.")
143. Id. §410(b).
144. Federal Employees Liability Reform and Tort Compensation Act of 1988 §5, 28 U.S.C. §2679(b)(1) (2006).
145. 403 U.S. 388 (1971)
146. see Wilkie v. Robbins, 127 S. Ct. 2588, 2600 (2007) (noting that Carlson held that availability of FTCA did not bar Bivens remedy);
147. Carlson v. Green, 446 U.S. 14, 19-23 (1980) (holding that availability of FTCA action does not preclude Bivens action against individual officers).
148. See Pearson v. Callahan, 129 S. Ct. 808, 815 (2009) (noting that qualified immunity applies regardless of whether official's action is alleged to be a mistake of law, mistake of fact, or mistake based on mixed question of law and fact);
149. Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (holding that qualified immunity shields government officers, including senior presidential aides, from civil damages for performing discretionary functions to the extent that "their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known");
150. see also Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law, and the Supremacy Clause, 112 yale L.J.2195 (2003) (arguing that immunity of federal officers under Supremacy Clause from state criminal prosecution has same scope as qualified immunity in Bivens actions).
151. Anderson v. Creighton, 483 U.S. 635, 638 (1987) (citing Harlow, 457 U.S. at 814).
152. See id. at 638-639 (collecting authorities).
153. Immunity from suits against government employees where constitutional violations are not at issue was made even stronger with the enactment, in 1988, of the Federal Employees Liability Reform and Tort Compensation Act, currently codified at 28 U.S.C. §2679(b)(1), providing that the FTCA is "exclusive of any other civil damages or proceedings for money damages."
154. See also United States v. Smith, 499 U.S. 160, 163 (1991) (holding that immunity from claims against employees in their individual capacities applies even when FTCA does not provide a remedy).
155. See Anderson, 483 U.S. at 638.
156. See Clark Byse, Proposed Reforms in "Nonstatutory" Judicial Review: Sovereign Immunity, Indispensible Parties, Mandamus, 75 Harv. L. Rev. 1479, 1480 (1962) (identifying as a classic statement of operation of nonstatutory review that plaintiff sues government officer for redress);
157. Jonathan r. Siegel, Suing the President: Nonstatutory Review Revisited, 97 Colum. l. Rev. 1612, 1623 (1997) (identifying suits against officers as a fundamental mechanism of nonstatutory review). Because the APA specifically recognizes these forms of review in § 703, "nonstatutory" is a misnomer, but one that has persisted.
158. 505 U.S. 788, 801 (1992).
159. 5 U.S.C. § 551(1) (2006).
160. Franklin, 505 U.S. at 801.
161. Franklin, 505 U.S. at 801.
162. Dalton v. Specter, 511 U.S. 462, 471: 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 separation of powers doctrine." It reasoned... that whenever the President acts in excess of his statutory authority, he also violates the constitutional separation-of-powers doctrine.
163. See Brief for Appellants, Franklin v. Massachusetts, 505 U.S. 788 (1992) (No.91-1502) (raising only constitutional and APA arguments).
164. Administrative Procedure Act, 5 U.S.C. § 703 (2006) ('The form of proceeding of judicial review is... in the absence or inadequacy [of a special statutory review proceeding], any applicable form of legal action, including actions for declaratory judgments or writs of prohibition or mandatory injunction or habeas corpus, in a court of competent jurisdiction.").
165. See strauss et al., supra note 28, at 1111 (showing that § 703 authorizes nonstatutory review);
166. Siegel, supra note 106 (same).
167. See, e.g., Chamber of Commerce v. Reich, 83 F.3d 442, 444 (D.C. Cir. 1996).
168. See Franklin, 505 U.S. at 828-829 (Scalia, J., concurring in part and concurring in the judgment) ("Review of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive....").
169. See supra note 106 and accompanying text (defining nonstatutory review as actions against the official individually).
170. See Reich, 83 F.3d at 444 (concluding that a cause of action would lie and sovereign immunity would be waived by APA in suit against Secretary of Labor implementing the President's Executive Order). The same would not be the case if the President were named as a defendant.
171. See Bismullah v. Gates, 514 F.3d 1291, 1305 (D.C. Cir. 2008) (Randolph, J. concurring) (concluding that because the President is not an "agency" under the APA, the APA's waiver of immunity does not apply when the President is named defendant).
172. 511 U.S. 463, 464 (1994).
173. Id.
174. See National Defense Authorization Act, Pub. L. No.101-510, § 2903(e), 104 Stat. 1808, 1812 (1990) ("If the President approves all the recommendations of the Commission, the President shall transmit a copy of such recommendations to the Congress.").
175. Dalton, 511 U.S. at 476.
176. Id.
177. In this respect, the Court's decision stood firmly on its prior decision in Chicago & Southern Air Lines v. Waterman Steamship Corp., 333 U.S. 103 (1948). In Waterman, the Court held that the President's order to grant an international air route to one carrier, and not to another, was not subject to judicial review.
178. Id. at 112. Like the statute at issue in Dalton, the statute in Waterman granted the President authority to approve the recommendations of an administrative agency; in particular, the statute made changes in overseas air transportation "subject to the approval of the President," but did not otherwise constrain how the President was to exercise his approval.
179. Id. at 106 (quoting Civil Aeronautics Act of 1938 § 801, 52 Stat. 973, 1014). "Presidential control," the Court noted, clearly impressed with its scope, "is not limited to a negative but is a positive and detailed control over the Board's decision, unparalleled in the history of American administrative bodies."
180. Id. at 109.
181. 511 U.S. at 476 (quoting 310 U.S. 371, 380 (1940)).
182. See, e.g., Mountain States Legal Found, v. Bush, 306 F.3d 1132, 1137 (D.C. Cir. 2003) ("[T]he court is necessarily sensitive to pleading requirements where, as here, it is asked to review the President's actions under a statute that confers very broad discretion on the President.");
183. Chamber of Commerce v. Reich, 74 F.3d 1322, 1331-1332 (D.C. Cir. 1996) ("Dalton's holding merely stands for the proposition that when a statute entrusts a discrete specific decision to the President and contains no limitations on the President's exercise of that authority, judicial review of an abuse of discretion claim is not available.").
184. Indeed, as the Supreme Court's recent decision in Massachusetts v. EPA, 549 U.S. 497, 532-33 (2007), illustrates, the mere fact that a statute frames a delegation in terms of the official's "judgment" does not exclude review. In Massachusetts v. EPA, the statute at issue granted authority to the EPA Administrator to prescribe regulations applicable to the emissions of any air pollutants from new motor vehicles which, "in his judgment, cause, or contribute to air pollution which may reasonably be anticipated to endanger the public health or welfare."
185. Id. at 506 (quoting 42 U.S.C. § 7521(a)(1)). The Court held that "the use of the word 'judgment' is not a roving license to ignore statutory text."
186. Id. at 533. Rather, "[i]t is but a direction to exercise discretion within defined statutory limits."
187. Id.
188. 437 F.3d 1356, 1359 (Fed. Cir. 2006).
189. Id. at 1357.
190. 19 U.S.C. § 2451(a) (2006).
191. Motion Systems, F.3d at 1361.
192. Id. at 1360.
193. See also, e.g., Utah Assoc. of Counties v. Bush, 316 F. Supp. 2d 1172, 1183-1186 (D. Utah 2004) (relying on "established Supreme Court precedent" as clearly foreclosing review of the grounds upon which the President invokes statutory power, on the ground that such a claim " 'concerns not a want of [presidential] power, but a mere excess or abuse of discretion in exerting a power given' " (quoting Dalton v. Specter, 511 U.S. 462, 474 (1994)));
194. Executive Order No. 12954, Entitled "Ensuring the Economic and Efficient Administration and Completion of Federal Government Contracts," 19 Op. Off. Legal Counsel 90 n.8 (Mar. 9, 1995) (invoking authority/exercise doctrine). While the habeas corpus review involves considerations distinct from those in other forms of review, it is worth noting that the reviewability doctrine stemming from Martin v. Mott, 25 U.S. (12 Wheat) 19 (1827), has been invoked recently in the habeas corpus context. Habeas corpus review includes not only review of whether a petitioner's constitutional rights have been violated, but also of claims that the detention lacks statutory authorization.
195. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 593-594 (2006) (concluding the President lacked statutory authority in habeas corpus review);
196. Richard H. Fallon, Jr. & Daniel J. Meltzer, Habeas Corpus Jurisdiction, Substantive Rights, and the War on Terror, 120 Harv. L. Rev. 2029, 2065-2066 (2007) (indicating that habeas corpus review includes review of constitutional rights violations as well as claims that detention lacks statutory authority). Accordingly, it makes sense that this reviewability barrier would also surface in habeas corpus review. In his dissent in Hamdi v. Rumsfeld, 542 U.S. 507 (2004), for instance, Justice Thomas invoked the reviewability barrier to argue that the President's determination of whether the petitioner "is actually an enemy combatant" ought not be reviewable.
197. For examination of the availability and scope of review of the executive's determinations in the context of habeas corpus review, see, e.g., Fallon & Meltzer, supra, at 2095-2108 (discussing the scope of habeas corpus review of executive determinations);
198. David L. Franklin, Enemy Combatants and the Jurisdictional Fact Doctrine, 29 Cardozo L. Rev. 1001, 1017-1024 (2008) (same).
199. See, e.g., Bowen v. Mich. Acad, of Family Physicians, 476 U.S. 667, 681 (1986) (stating that courts will "ordinarily presume that Congress intends the executive to obey its statutory commands and accordingly that it expects the courts to grant relief when an executive agency violates such a command");
200. Stark v. Wickard, 321 U.S. 288, 310 (1944) ("The responsibility of determining the limits of statutory grants of authority... is a judicial function entrusted to the courts by Congress by the statutes establishing courts and marking their jurisdiction.");
201. John F. Duffy, Administrative Common Law in Judicial Review, 77 TEX. L. REV. 113, 144 (1998) (describing review for legal authorization, whether constitutional or statutory, as a cornerstone of judicial review).
202. Siegel, supra note 106, at 1628.
203. See, e.g., Akhil Reed Amar, A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U. L. REV. 205, 209, 239-248 (1985) (arguing that "arising under" jurisdiction must be vested in some federal court)
204. See Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 COLUM. L. REV. 452, 487 (1989) ("A crucial aspect of the capacity for external control upon which the permissibility of delegating regulatory power hinged was judicial policing of the terms of the statute.").
205. Ethyl Corp. v. EPA, 541 F.2d 1, 68 (D.C. Cir. 1976) (en banc) (Leventhal, J., concurring);
206. see also Touby v. United States, 500 U.S. 160, 170 (1991) (Marshall, J., concurring) ("Judicial review perfects a delegated-lawmaking scheme by assuring that the exercise of such power remains within statutory bounds.");
207. Louis L. Jaffe, Judicial COntrol of Administrative Action 320 (1965) ("The availability of judicial review is a necessary condition, psychologically if not logically, of a system of administrative power which
208. Daniel B. Rodriquez, The Presumption of Reviewability: A Study in Canonical Construction and Its Consequences, 45 Vand. L. REV. 743, 755 (1992) (arguing the availability of judicial review is a constitutional quid pro quo for courts declining to strike down statutes on nondelegation grounds).
209. See Nixon v. United States, 506 U.S. 224, 228 (1993) ("A controversy is nonjusticiable- i.e., involves a political question-where there is a 'textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it....' " (quoting Baker v. Carr, 369 U.S. 186, 217 (1962)))
210. see also Clinton v. Jones, 520 U.S. 681, 700 n.34 (1997) (noting the same).
211. See, e.g., Administrative Procedure Act, 5 U.S.C. § 701(a)(1) (2006) (noting that statutes may expressly preclude judicial review).
212. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952);
213. see also Medellin v. Texas, 128 S. Ct. 1346, 1368 (2008) (quoting Youngstown).
214. Harry G. Henn, Laws of Corporations and Other Business Entities 353 (2d ed. 1970)
215. Kent Greenfield, Ultra Vires Lives! A Stakeholder Analysis of Corporate Illegality, 87 Va. L. Rev. 1279, 1303 (2001)
216. see also, Sarah Bilder M. The Corporate Origins of Judicial Review, 116 Yale L.J., 503, 506, (2006) (examining the corporate origins of judicial review of legislation for constitutionality).
217. Greenfield, supra note 143, at 1303-1304.
218. Christopher Forsyth, Of Fig Leaves and Fairy Tales: The Ultra Vires Doctrine, the Sovereignty of Parliament and Judicial Review, 55 cambridge L.J. 122, 122 (1996) (quoting Sir William Wade).
219. John Dickinson, Administrative Justice and the Supremacy of Law 41 (1927).
220. P.P. Craig, Administrative Law 478 (5th ed. 2003).
221. Monaghan, supra note 86, at 249 n.110.
222. Franklin, supra note 134, at 1017-24;
223. Monaghan, supra note 86, at 260.
224. 285 U.S. 22, 36-65 (1932).
225. Id. at 54.
226. John Dickinson, Crowell v. Benson: Judicial Review of Administrative Determinations of Questions of 'Constitutional Fact,'80 U. Pa. L. Rev. 1055, 1059 (1932).
227. Crowell, 285 U.S. at 55.
228. "The doctrine of constitutional fact as developed in Crowell v. Benson applies to constitutional limitations on administrative jurisdiction the same reasoning which the doctrine of jurisdictional fact applies to statutory limitations." Dickinson, supra note 152, at 1067.
229. Crowell, 285 U.S. at 62-64.
230. Id. at 64.
231. Id. at 56.
232. Dickinson, supra note 152, at 1062.
233. Id.
234. Id. at 1077.
235. Stack, Statutory President, supra note 23, at 552-553 (noting that few statutes impose procedural constraints on President other than consultation requirements).
236. Dickinson, supra note 152, at 1063; Franklin, supra note 134, at 1021.
237. Dickinson, supra note 152, at 1077-1078.
238. Id. at 1077.
239. Franklin, supra note 134, at 1021.
240. Id. at 1023.
241. Monaghan, supra note 86, at 249 n.110 (noting that "neither Jaffe nor Dickinson believe that competence of courts to engage in jurisdictional fact review imposed an obligation "to exercise a given level of review in any particular case"). I agree.
242. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842-843 (1984).
243. Id.
244. See Stack, Statutory Powers, supra note 23, at 306-310 (arguing that "only actions by express recipients of statutory authority are eligible for Chevron deference").
245. Lisa Schultz Bressman, Procedures as Politics in Administrative Law, 107 Colum. L. REV. 1749, 1769-1770 (2007) (arguing judicial review enables legislative and public oversight of agency action).
246. Stack, Chenery, supra note 59, at 1013-1020 (2007) (arguing that reasoned elaboration as a condition for judicial deference applies to President's exercise of statutory powers).
247. Stack, Statutory President, supra note 23, at 575-582 (arguing against affirmation of President's power under statute when court cannot identify which statute authorizes action).
248. 174. See, e.g., Jide Nzelibe, The Uniqueness of Foreign Affairs, 89 IOWA L. REV. 941, 943- 1009 (2004) (providing an excellent treatment and defense of exclusion of review on political question grounds of the President's foreign affairs actions).
249. 175. United States v. George S. Bush & Co., 310 U.S. 371, 380 (1940).
250. 176. Monongahela Bridge Co. v. United States, 216 U.S. 177, 181 (1910).
251. George S. Bush & Co., 310 U.S. at 380;
252. see also Monongahela Bridge, 216 U.S. at 181 (finding Congress intended for Secretary's action to have same force and effect as Congress's own).
253. See, e.g., City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985) ('The general rule is that legislation is presumed to be valid and will be sustained if the classification drawn by the statute is rationally related to a legitimate state interest.");
254. see also Lawrence v. Texas, 539 U.S. 558, 579-580 (2003) (quoting Cleburne).
255. See, e.g., Administrative Procedure Act, 5 U.S.C. § 701(a)(l)-(2) (2006) (providing for statutory preclusion of judicial review);
256. Webster v. Doe, 486 U.S. 592, 601-04 (1988) (precluding review under § 701(a)(2) of agency's compliance with statute, but allowing review of plaintiffs constitutional claims against the agency).
257. See Stack, Chenery, supra note 59, at 955 (contrasting rules of review of legislation and administrative law).
258. Stack, Statutory President, supra note 23, at 579.
259. See id. (arguing that "the president's statutory authority derive[s] from identifiable statutes").
260. See id. at 579-582.
261. See, e.g., Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006) ("Whether or not the President has independent power, absent congressional authorization, to convene military commissions, he may not disregard limitations that Congress has, in proper exercise of its own war powers, placed on his powers.")
262. Barron & Lederman, Constitutional History, supra note 43, at 945 (arguing that "[w]ar powers disputes now increasingly turn on the constitutional issues raised when Congress imposes limitations");
263. David J. Barron & Martin S. Lederman, The Commander in Chief at the Lowest Ebb-Framing the Problem, Doctrine, and Original Understanding, 121 Harv. L. Rev. 689, 703-704 (2008) (exposing the extent to which Congress has power to structure means by which President acts in his capacity as Commander in Chief);
264. Harold J. Krent, The Lamentable Notion of Indefeasible Presidential Powers: A Reply to Professor Prakash, 91 Cornell L. Rev. 1383, 1383-1386 (2006) (arguing that congressional regulation of executive power should examined through the lens of checks and balances);
265. Saikrishna Prakash, Regulating Presidential Power, 91 Cornell L. Rev. 215, 215-217 (2005) (arguing that Congress lacks a general power to regulate presidential powers).
266. See supra note 184.
267. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952).
268. Id.
269. See Harold H. Koh, Why the President (Almost) Always Wins in Foreign Affairs: Lessons from the Iran-Contra Affair, 97 yale L.J. 1255, 1311 (1988) (describing how rulings like Chadha "create a one-way 'ratchet effect' that effectively redraws the categories described in Justice Jackson's Youngstown concurrence").