[Congressional Record Volume 140, Number 65 (Monday, May 23, 1994)]
[Senate]
[Page S]
From the Congressional Record Online through the Government Printing Office [www.gpo.gov]


[Congressional Record: May 23, 1994]
From the Congressional Record Online via GPO Access [wais.access.gpo.gov]

 
 THE U.S. SUPREME COURT'S DECISION ON THE BASE CLOSURE AND REALIGNMENT 
                              ACT OF 1990

  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:

       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]

        Dalton, Secretary of the Navy, et al. v. Specter et al.


 certiorari to the united states court of appeals for the third circuit

        [No. 93-289. Argued March 2, 1994--Decided May 23, 1994]

       Respondents filed this action under the Administrative 
     Procedure Act (APA) and the Defense Base Closure and 
     Realignment Act of 1990 (1990 Act), seeking to enjoin the 
     Secretary of Defense (Secretary) from carrying out the 
     President's decision, pursuant to the 1990 Act, to close the 
     Philadelphia Naval Shipyard. The District Court dismissed the 
     complaint on the alternative grounds that the 1990 Act itself 
     precluded judicial review and that the political question 
     doctrine foreclosed judicial intervention. In affirming in 
     part and reversing in part, the Court of Appeals held that 
     judicial review of the closure decision was available to 
     ensure that the Secretary and the Defense Base Closure and 
     Realignment Commission (Commission), as participants in the 
     selection process, had complied with the procedural mandates 
     specified by Congress. The court also ruled that this Court's 
     recent decision in Franklin v. Massachusetts, 505 U.S. --, 
     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.
                                  ____


                  [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]

       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. Sec. 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.
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       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,'' Sec. 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. 
     Sec. 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. Sec. Sec. 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. 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. Sec. 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. 
     Sec. 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. Sec. 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. Sec. Sec. 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. 
     Sec. Sec. 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. 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. Sec. 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.


                                   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. 
     Sec. 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 Sec. 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. Sec. 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 Sec. 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 
     Sec. 2903(e) prohibit the President from approving 
     recommendations that are procedurally flawed. Indeed, nothing 
     in Sec. 2903(e) prevents the President from approving or 
     disapproving the recommendations for whatever reason he sees 
     fit. See Sec. 2903(e); Specter II, 995 F. 2d, at 413 (Alito, 
     J., dissenting).
       How the President chooses to exercise the discretion 
     Congress has granted him is not a matter for our review. See 
     Waterman S.S. Corp., supra; Dakota Central Telephone Co., 
     supra, at 184. As we stated in George S. Bush & Co., supra, 
     at 380, ``[n]o question of law is raised when the exercise of 
     [the President's] discretion is challenged.''


                                  iii

       In sum, we hold that the actions of the Secretary and the 
     Commission cannot be reviewed under the 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.
                                  ____


                  [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 Sec. 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, Sec. Sec. 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.
                                  ____


                  [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 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''), 
     Sec. Sec. 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. 
     Sec. 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. 
     Sec. 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. Sec. 2903(d)(2). And in each such 
     year, the President must, no later than July 15, either 
     approve or disapprove the Commission's recommendations. 
     Sec. 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. Sec. 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. 
     Sec. Sec. 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,'' 
     Sec. 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. 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 
     Sec. Sec. 2903(e)(2), (e)(3), (e)(4) (as to the President); 
     Sec. 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 
     Sec. Sec. 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. Sec. 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. Sec. 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 
     Sec. 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. Sec. 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.

                               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. 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.
  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.

                          ____________________