DALTON, SECRETARY OF THE NAVY v. SPECTER
Legal provision: 10 U.S.C. 2687
Argument of Drew S. Days, III
Chief Justice Rehnquist: We'll hear argument now in No. 93-289, John H. Dalton v. Arlen Specter.
Mr. Days, III: Mr. Chief Justice, and may it please the Court:
On November 5th, 1990, the President signed into law the Defense Base Closure Act at issue in this litigation.
The 1990 Act was the product of vigorous efforts on the part of both the Congress and the President to remove partisan and procedural obstacles that historically had made it nearly impossible to achieve a timely and orderly close of domestic military bases deemed unnecessary to the national security.
The compromise arrived at by the legislative and executive branches with respect to this particular issue embodied several critical features.
First, the President was to be held personally responsible for the decision.
Secondly, there would be extensive congressional oversight and involvement.
Third, there would be an independent commission established to make recommendations to the President, and there would be a single indivisible package made available to the President by the Commission.
The entire process would be one that would be completed within a 6-month period.
Central to this process was that it would remove concern for what was referred to as cherry-picking.
That is a practice that contributed to the criticism of the pre-1990 base closure actions and impasses between the Congress and the President, where on a base closing list one particular base would be picked out and removed from that particular determination.
Between April 15th and July 30th, 1991, as... insofar as this lawsuit is concerned, every party had completed what was required of that party under the 1990 Act.
The Secretary of Defense had made his recommendation for base closures and realignments, and the Commission had held hearings on 82 closures or realignments.
The President had approved the entire list and transmitted it to Congress, and Congress, having held hearings on that particular list, had declined to enact a Joint Resolution of Disapproval.
Unknown Speaker: General Days, I would like to ask you what your position is as to the role of the President in this scheme?
I guess the President has to either approve the entire list or reject the entire list.
The President isn't authorized to pick and choose.
Mr. Days, III: That's correct.
That's central to the scheme.
Unknown Speaker: All right.
Does the President have any obligation to review the proceedings below for irregularity?
Mr. Days, III: He does not.
Unknown Speaker: Could the President do that?
Could he decide that there were irregularities in the process and therefore he wouldn't approve?
Mr. Days, III: --There is nothing in the statute that would prevent that.
In fact, the President can reject the list that's submitted by the Commission and send it back to the Commission for further deliberations and a new list.
Unknown Speaker: But in your view, not obligated to review procedurally.
Mr. Days, III: No, he is not obligated under the terms of the statute.
Unknown Speaker: Is the Commission subject to the President's direction in any respect?
Could he stop the Commission from behaving improperly in developing its recommendations if he wanted to?
Mr. Days, III: There is nothing in the statute that reflects that power on the part of the President.
Of course, the President appoints the Commission after consultation with both sides of the aisle in the Congress, but there is no direct supervision by the President of the activities of the Commission.
The Congress, however, does have a very active role to play in this process.
There are at least 10 points in the process where Congress has a role to play, starting with the appointment of the Commission itself, and moving through the point where Congress has the ability to enact a Joint Resolution of Disapproval.
So that one would presume that... although it's not explicit in the statute, that Congress could make its views known during this entire process.
And, indeed, I think the facts were that Congress did make its views known from time to time, leading up to this base closure decision.
Unknown Speaker: General Days, the normal presumption is that legislation and its operation will be subject to judicial review.
There's no express preclusion in this legislation.
Can you summarize for us your argument of why the absence of judicial review is implicit in this scheme?
Mr. Days, III: Yes, Justice Ginsburg.
You're certainly right that the presumption exists in favor of judicial review, but I don't think the Court has ever held that that presumption and the use of the term "clear and convincing evidence" was designed to impose an evidentiary standard in the sense that we would be talking about if we were talking about parties and the shifting of burdens.
But we think that even given that presumption of review, it is weaker in a situation such as this where military sensitivities are involved.
When one is talking about, we must remember, a decision by the Secretary of Defense as to what are the military needs of the United States over a 6-year period, and then trying to work out a closure process that is consistent with that particular determination, and it is a decision ultimately by the President acting in, among other things, his capacity as commander in chief.
Unknown Speaker: Well, might this be different, General Days, if some sort of individual rights in the traditional sense were involved, as they don't seem to be here?
Mr. Days, III: Certainly, Chief Justice Rehnquist.
The U.S. Reports reflect the fact that there have been occasions where this Court has exercised jurisdiction, or lower Federal courts have exercised jurisdiction where there was an identifiable right, either a common-law right or a constitutional right.
But I think one searches in vain in this case to identify such a right.
There is not a common-law right.
And, indeed, the Third Circuit rejected the notion that there was a constitutional right presented by this case.
There was an assertion in the complaint of a due process violation flowing out of some of the errors that the plaintiffs identify, the respondents identify, but the Third Circuit rejected that particular claim.
And, as I understand it, respondents now are pressing their constitutional claim, their due process claim, before this Court.
Unknown Speaker: So you didn't put it this way, but basically you're saying this is just a pact, a kind of a modus vivendi between the two political branches.
Mr. Days, III: That's correct, Justice Souter.
This was the result of a very long period in which the Congress and the President, for a variety of reasons, found themselves unable to agree upon how base closures should be handled.
In 1988 there was an act that pointed in the same direction as this 1990 Act, but it was for 1 year.
This particular act incorporated many of those features that the Congress and the President felt had worked well, that had removed most of the avenues for political maneuvering and obstruction, procedural obstruction, which had really prevented the Government from doing what I think everyone recognized needed to be done, given the enormous costs that are incurred when an obsolete base is kept open year after year, and also when it's not needed for the protection of the United States.
So we see this very much as an understanding between the President and the Congress as to how to do this most effectively, and I mentioned--
Unknown Speaker: That's a different response than the one that you gave earlier, that judicial review is out of the ballpark because of national... because national security is involved because these are military bases.
The answer that you're now giving to Justice Souter seems to be that this was a determination between the two branches, that this was a matter for them to determine, perhaps--
Mr. Days, III: --Justice Ginsburg, I don't think my responses are inconsistent.
I just wanted to respond to your point about the presumption, and I think the presumption is weaker under these circumstances.
But I think the history and the structure and purpose of the Act also suggests that judicial review was not viewed by the Congress or anticipated by the Congress as an appropriate way to deal with whatever problems might have arisen under the Act.
Unknown Speaker: --Can you conceive of any procedural irregularity so gross as to invalidate the Commission's findings?
Mr. Days, III: Justice Kennedy, one pauses when posed a question like yours, but I think that given the structure of the Act and given the history and purpose, there would be no violation that would rise to the level of judicial review or trigger judicial review.
This is a matter--
Unknown Speaker: So if--
Mr. Days, III: --That would be dealt with by the Congress.
Unknown Speaker: --If the Commission issued a report in 1994, which it's not authorized to do.
Mr. Days, III: That's correct.
Unknown Speaker: And the President acted... transmitted the list, that would be a... and the Congress refused to act to upset that determination, those bases could be closed without interference from the courts?
Mr. Days, III: That's correct, Justice Kennedy.
This is, after all, a piece of legislation that has a sunset provision.
It exists for only 5 or 6 years, and after that point certainly Congress, in due course, could revisit this issue.
And as I indicated earlier, there are points during the process where Congress can make its interests and its concerns felt, and I don't think that it's appropriate to presume that the Commission or the President or the Secretary of Defense would be completely unaffected by those expressions of concern.
Unknown Speaker: Mr. Day, at what point in the process would you say that Congress would have the best opportunity to express its concern about procedural shortcomings that are at issue in this case?
Mr. Days, III: It could do so at the point where it can vote out, enact a Joint Resolution of Disapproval.
Unknown Speaker: That would be the point at which you'd expect them to react, if at all?
Mr. Days, III: That's correct.
And in this case--
Unknown Speaker: Of course, Mr.--
Mr. Days, III: --Yes.
Unknown Speaker: --Senator Specter says they don't have time to do that.
His argument, as I understand it, is that if that's what you're banking on, there won't be any procedural review at all, because he says Congress basically cannot act in the time that the statute would allow it to act.
Mr. Days, III: Justice Souter, I don't think that's correct.
As I indicated, Congress has the ability to review what's going on in this process at many different points, and in this case it was possible for the Congress to hold hearings, to assign particular issues to committees and subcommittees for resolution.
And we're not talking about something that arrives on the doorstep of the Congress completely unannounced.
Unknown Speaker: General Days, you could say that about any arbitrary or capricious executive action.
You could always say if Congress doesn't like it, Congress could have enacted a Joint Resolution of Disapproval, which is the same as a piece of legislation.
It has to pass both houses, right?
Mr. Days, III: That's correct.
Unknown Speaker: And be signed by the President.
Mr. Days, III: Yes.
Unknown Speaker: So why is this any different from any... any other instance of executive arbitrariness?
Congress can overturn it by a law if it doesn't like it.
I don't find that a very persuasive... it doesn't make me feel better about the arbitrariness in this case.
Mr. Days, III: Yes.
Unknown Speaker: If there was any.
Mr. Days, III: I understand that, Justice Scalia.
But this is a situation that I think is not commonplace.
It's not like a normal statutory scheme.
It's one where Congress, as I indicated, is intimately involved from the beginning to the end.
The President has to consult with Members of Congress before even appointing members of the Commission.
The Secretary of Defense, as part of the budgetary process, has to submit the force structure plan, the criteria for closing.
Unknown Speaker: Well, he doesn't really have to.
He's supposed to, but you've told us you can't imagine any... you know, any defect that would be bad enough to allow review.
All you say is he's supposed to do it.
Let's assume he doesn't do it.
Mr. Days, III: Justice Scalia, I think this is a risk that Congress felt it was prepared to take, given the problems that the President and Congress had encountered in the past in dealing with the whole base closure issue.
This particular problem of cherry-picking was one that had brought the President and Congress to impasse in many instances.
And also there was this concern about the extent to which political considerations entered into the process; that some people got better treatment or some bases got better treatment than others.
Unknown Speaker: General Days, in this statute where Congress may, if it disapproves, pass a joint resolution, would that Joint Resolution of Disapproval have to be signed by the President?
Mr. Days, III: Yes, it would, it would have to accord with the presentment clause of the Constitution.
Unknown Speaker: Does that go for everything now?
I was just wondering about the Federal rules procedure, that get laid on the table of Congress and then they become effective.
Mr. Days, III: Justice Ginsburg, it's our understanding, and it was the contemplation of Congress, that this would go through the presentment process.
Unknown Speaker: --And that everything--
Mr. Days, III: And the charter would dictate that.
Unknown Speaker: --That everything... that you could no longer have anything, you think, even the Federal rules procedure?
Mr. Days, III: Well, I think that's a different scheme, Justice Ginsburg, but in this particular case we're talking about an enactment by the Congress, by the entire Congress.
Unknown Speaker: I didn't want to distract you.
Mr. Days, III: Well, no, it's certainly an interesting question.
Unknown Speaker: General Days.
Mr. Days, III: Yes.
Unknown Speaker: Would you refresh my recollection on something?
What is the status of the bases right now?
Was the closing all been held up on all of them?
Mr. Days, III: No, it has not.
In fact, my understanding is that the closing of the Philadelphia shipyard is moving along.
Right now the USS Kennedy is being overhauled at the shipyard.
But in, I guess, July of '91 when this lawsuit was filed, there were 7,000 employees at the naval yard.
There are now about 5,000, and the cease mission date is August 30th or September 30th, 1995.
Unknown Speaker: The court of appeals didn't stay... didn't enter any kind of a--
Mr. Days, III: No, there is no stay in this particular case.
And this, of course, points up a difficult problem with judicial review in this case, because all the bases either stand or fall together.
The 1991 closure list included the naval shipyard.
The 1993 closure process has been completed.
The Commission has been disbanded, and that particular list was dependent upon the Philadelphia shipyards being closed and one would presume that the '95 process would also take that into consideration.
It's not merely a question of dropping or adding one particular base.
It's a... it's the case that all of the pieces to this puzzle have to fit together.
And one... when one moves a piece out--
Unknown Speaker: --Well, they do... for the activity, the actions of the executive and the legislative branches, they don't, for purposes of judicial review, do they?
Mr. Days, III: --No.
The point I'm making--
Unknown Speaker: Oh, you're not... maybe I misunderstood you.
You're not arguing that unless the Philadelphia closing goes forward in this case, the closing of every other base on the list is held up too as a result of judicial review?
Mr. Days, III: --No, I'm... that is a problem because if the Secretary--
Unknown Speaker: That's not your argument, is it?
Mr. Days, III: --Well, my argument, Justice Souter, is that when the Secretary of Defense determines that certain bases need to be closed, the Commission makes the recommendation and the President approves.
The list stands or falls in its entirety.
Unknown Speaker: Oh, no, I understand that.
Mr. Days, III: Yes.
Unknown Speaker: But my only point was you're not arguing that if this Court sustains judicial review and if the... an order is entered which will terminate the closure proceedings for Philadelphia, that that's going to affect the closure of every other base that was on the same list with Philadelphia.
Mr. Days, III: Not necessarily, but they are interrelated.
But I think that point is--
Unknown Speaker: But there's no... they're not subject to any challenge.
I mean nobody's brought a suit.
Mr. Days, III: --No one's brought a suit, but I think what this lawsuit reflects is one of potentially 82 lawsuits.
In other words, with 82 bases being either closed or realigned, given the theory of the respondents and the theory of the court of appeals, there could have been 81 other lawsuits.
Indeed, in Cohen v. Rice there was an effort in the State of Maine to prevent the closure of a base in that State.
Unknown Speaker: Well, isn't it true also, General Days, that the Commission, in debating the 1993 closings, assumed that the Philadelphia yard was going to be closed, and in... perhaps relied on that in making its decisions as to 1993 closings?
Mr. Days, III: That's precisely correct, Chief Justice Rehnquist.
Unknown Speaker: But I must confess, I'm... I must say I'm confused.
I was under the impression that you had a package situation.
Mr. Days, III: Yes.
Unknown Speaker: And certainly the President has to take it as a lump and the Congress has to.
But you're saying in the case of judicial review, if there is judicial review it can be done on a base-by-base basis.
Mr. Days, III: That's correct.
That's what this case is really all about.
They're trying to prevent the closure--
Unknown Speaker: So that nobody accepted--
Mr. Days, III: --Of one of those pieces of the puzzle in the entire puzzle, and the question would be the impact of that particular determination in favor of the respondents upon the entire list or, indeed, subsequent list.
Unknown Speaker: --Well, I might have thought your argument would have been that if we were to permit judicial review, that one possibility is that the district court would have to throw out the entire list in order to be consistent with the statutory scheme.
Mr. Days, III: Well, throw out the--
Unknown Speaker: Or resort to a si prius doctrine and just save the Philadelphia base.
Mr. Days, III: --Well, it might require a court to throw out the '91 list, the '93 list, and direct the '95 Commission that it would have to carry out its responsibilities without any dependence on the Philadelphia Naval Shipyard being included in that closure process.
Unknown Speaker: Well, if we can retreat just a minute from that parade of horribles, let's again assume that we find that there is judicial review.
Mr. Days, III: Yes.
Unknown Speaker: That the APA review applies.
What should be the rule if the Commission violates its statutory mandate to hold a public hearing, and we've made this assumption?
Can an aggrieved person immediately go to seek judicial review and a judicial order to open the hearings immediately after the Commission makes its determination to close them?
Mr. Days, III: I would think not, Justice Kennedy.
This is a situation where there is no immediate impact on anyone.
It's moving toward the ultimate decision.
But that would not be any direct impact--
Unknown Speaker: Well, suppose you want to observe... suppose you want to observe the public hearing?
Mr. Days, III: --Well, perhaps there would be a right to go into court to claim that the agency was withholding a right pursuant to the APA or pursuant to the statute, that individuals would be entitled to, but it certainly wouldn't be final agency action under the APA.
Unknown Speaker: Can I ask--
Mr. Days, III: So it would be wrongly withheld action under the APA by the agency.
Unknown Speaker: --General Days, I frankly don't see why your case is any stronger than a case in which the same scheme were set up but it did not say at the end that when the President approves it, he sends it, transmits it to the Hill, and the Hill has 45 days to overturn it.
Suppose it didn't say that?
Suppose it just said the President shall make the decision.
He has to take it or leave it when it's submitted to him, and his decision shall not be effective for 45 days... that's all it says, shall not be effective for 45 days.
In fact, that's the same result, right?
Congress can... could only be able to overturn it by joint resolution.
Mr. Days, III: That's correct.
Unknown Speaker: So what do you gain from the fact that this is a scheme in which he formally had to place it before Congress?
I don't see how that makes your case for nonreviewability any stronger.
Mr. Days, III: Well, we think this case is controlled by this Court's decision in Franklin v. Massachusetts, that what we have here, apart from the fact that the President wasn't named as a defendant, is basically an effort to get courts to review presidential action.
This is a situation where the Secretary of Defense and the Commission agencies make nonbinding recommendations to the President and then the President has the discretion to decide what he's going to do under those circumstances.
As the Third Circuit said, the President can make his decision for any reason at all.
This is discretion that is not bound by the terms of the statute.
Although the argument has been made by the respondents that this is somehow different from Franklin, we've never viewed Franklin as a decision about artful pleading, but rather about the respect for the integrity of the presidential process or presidential action.
And so we think given this Court's decision in Franklin v. Massachusetts, this case falls very nicely into that particular framework, and therefore it is important that the President is involved.
This is a situation where he has more discretion than I think this Court recognized in Franklin in making the decision.
So if anything, this is a stronger case for deference by the judiciary to Presidential action.
Unknown Speaker: I agree it's important that the President is involved.
I'm not sure it's at all important that Congress is involved.
That is to say that what the President does is not simply issue a regulation, the bases shall close, period, effective 45 days from now.
Mr. Days, III: Yes.
Unknown Speaker: I'm not sure there's any difference between that and this scheme where it says not just 45 days from now, but within those 45 days I'm leaving it on the floor of Congress.
Mr. Days, III: Yes.
Well, I think, Justice Scalia, the involvement of Congress really goes to the point that I was making earlier, that even if you disagree with our argument and find that there was final action under the APA and therefore reviewability, the Act itself does not, we submit, contemplate judicial review.
And one of the reasons for that is the involvement of Congress, the need for expedition, the fact that in this legislation Congress recognized that the NEPA process was one that had been used for a variety of reasons to delay the process, and therefore NEPA was completely taken out of the statute.
Unknown Speaker: But why doesn't that cut the other way, General Days, that they noticed that NEPA could slow things down, so they made an exception for it, but they didn't make an across-the-board exception?
Mr. Days, III: Justice Ginsburg, I think that the NEPA exception doesn't go so much to the question of judicial review.
In other words, I don't see it as an argument that what Congress intended to do was take NEPA out but allow other types of procedural challenges to be reviewed by the courts, but rather as a determination that NEPA imposes certain procedural requirements on agencies that, apart from judicial review, can be used to slow down, delay the process that Congress wanted to be handled in an expeditious fashion.
And it was really those procedural concerns, not so much judicial review, that was on the mind of Congress, we would submit.
Unknown Speaker: Is it your position with respect to the significance of the express provision for congressional disapproval that it's sort of affirmative evidence that Congress would engage in a review, and hence affirmative evidence, one more bit of evidence for you that that's where the review was to take place and not somewhere else?
Mr. Days, III: Yes, Justice Souter, I think that, in sum, this case is really about an effort on the part of the respondents to substitute judicial cherry-picking for legislative and executive cherry-picking, which was a major concern of both Congress and the President when they enacted the 1990 legislation.
I'd like to reserve the balance of my time.
Unknown Speaker: Very well, General Days.
Senator Specter, we'll hear from you.
Argument of Arlen Specter
Mr. Specter: Mr. Chief Justice, and may it please the Court:
Our contention that there is judicial review turns on alternative legal theories, first under common law principles and second under statutory review under the Administrative Procedure Act.
It is not determinative under the decisions of this Court that there be individual rights involved.
The Panama Refining case, the American Airlines v. the Civil Aeronautics Board, and going back to Flying Fish, has established the solid principle that where there is a violation of the doctrine of separation of powers where the congressional requirements are not met by the executive, then the action by the executive, the Base Closing Commission, is null and void.
The principle of judicial review and the importance is not one that has to be emphasized in this Court--
Unknown Speaker: Senator Specter, let me just, if I may, interrupt you.
When you say null and void, do you mean that if there is a concern about the particular... the Philadelphia base and procedural shortcomings as to that one base, the remedy that the Court would grant would be null and void of the entire package?
Mr. Specter: --No, Mr. Justice Stevens, it would not be.
There is no showing that the elimination of the Philadelphia base would have any effect on any other bases at all.
Unknown Speaker: Well, then let me ask you, just to be sure I understand the position, you do agree, do you not, that if the President were... found there were procedural shortcomings as to Philadelphia and no other base, he would not have the authority to say I will close everything except the Philadelphia base?
Mr. Specter: Justice Stevens, he could have sent the list back and raised an issue, but it's a practical impossibility in 10 days to take a look at 72 bases.
In the 1991 and 1993 closures and realignments, 310 bases have been involved and only 3 cases have been brought.
But when you come to the question of remedy, I want to emphasize this point, that it may be that declaratory relief would be sufficient if the district court says that there has been a violation of the Act and that the failure to have a fair process--
Unknown Speaker: No, but the point I want to be sure I understand your position on, Senator, is that if I understand you correctly, the Congress could not say because of the procedural violations involving Philadelphia, we will approve the entire package except Philadelphia.
They might say we're very unhappy about that, but we think the interest in all the closures outweighs it and we're going to approve the package.
Mr. Specter: --The Congress could not say the Philadelphia base is excluded.
And the Congress faced this issue directly, Justice Stevens, as set forth at page 44 of our brief where the Congress passed a Sense of the Congress Resolution saying that their rejection of the resolution of disapproval did not say anything about compliance with the Act.
It is another way of saying what Senator Dixon, the chairman of the subcommittee, said at the time of the hearing on the resolution of disapproval, that he could not take up the question of whether the congressional mandates were followed, and under the decisions of this Court that is a particularly and peculiarly judicial function.
Unknown Speaker: Senator, if Congress--
--But, let me just finish... let me just finish the one thing, and that'll be... I'll leave you alone.
But you do agree, then, that neither Congress nor the President could take separate action on a base-by-base basis, but the courts could?
Mr. Specter: Correct, Justice Stevens.
Unknown Speaker: Okay.
Mr. Specter: It is a particularly, peculiarly judicial function, and when you say that there may be an interference with all the other bases, that's a question for the court on a remedy.
Unknown Speaker: Senator, I don't agree with that.
Congress can do anything by a joint resolution.
If Congress passes a joint resolution, which to be effective has to be signed by the President, it has passed a new statute which would supersede this whole statute anyway.
Congress... I agree with you that the President couldn't single out the Philadelphia base, but Congress could by joint resolution.
Mr. Specter: Justice Scalia, Congress, as the lawmaker, may do that.
Unknown Speaker: Anything at all.
Mr. Specter: But within the confines of the Base Closure Act, that was not contemplated.
Unknown Speaker: It wasn't contemplated, but the Base Closure Act calls for a joint resolution and Congress can do anything it wants by a joint resolution so long as it's constitutional?
Mr. Specter: --Well, not the joint resolution, Justice Scalia, which is called for by the Act.
The joint resolution which is called for by the Act, the Joint Resolution of Disapproval, calls for rejecting the whole thing or leaving the whole thing in place.
But where you have a question as to whether the congressional standards were followed, Senator Dixon at the hearing said... it's in the record... we can't take this up; that's a matter for the courts.
And then there was a congressional determination that the rejection of the resolution of disapproval did not bear on whether the provisions of the Act were complied with because the Congress could not do that.
Unknown Speaker: Well, I think the procedures that Congress would go through for a joint resolution under this Act might be quite different and a good deal speedier than introducing a brand new piece of legislation and having it go through committee.
Mr. Specter: --Chief Justice Rehnquist, that's precisely the point, that the resolution of disapproval contemplated under the Act said all or nothing.
There could be another resolution introduced, or a bill introduced to deal with the Philadelphia Navy Yard, but that's a total impracticality because Congress passed this Act saying that this is the sole way that you deal with base closures.
But when Congress passed the Act... and this is the fundamental of the case... there were specific provisions set out.
There had to be a structure force plan.
There had to be criteria.
There had to be full disclosure to the General Accounting Office, the arm of Congress.
Unknown Speaker: Senator--
Mr. Specter: And this was added in the 1990 Act because there was so much concern that the Defense Department would act in an unfair way.
Unknown Speaker: --If the President concluded that some of these conditions that you have just described had not been followed by the Commission, did he have the duty to reject the list?
Mr. Specter: No, Justice Kennedy, he did not, because he's looking at the total picture.
And we offered to prove at trial--
Unknown Speaker: So if you were his legal counsel and these defects had been disclosed to him during the short period of time in which he could either reject or approve the list, you would have said that he had the legal right to submit the list to the Congress, to go ahead with it?
Mr. Specter: --I would have advised him to send the whole list back, but where there's a defect as to one base that's up to the courts, because there is a showing that this is not a garden-variety matter of procedural error, as asserted by the Government.
Unknown Speaker: But he... but would you further advise him that he did, in his discretion, have the authority to transmit the list to the Congress?
Mr. Specter: I would advise him that he had very little discretion.
He could take it all or he could leave it all, but on this record he ought to submit the whole list to the Congress because he's dealing with 72 bases.
Unknown Speaker: Not what he ought to do... that he ought to submit the whole list to the Congress?
Mr. Specter: That that's what he should do.
That would be my advice to him, because I would say to him, Mr. President, you cannot have a determination as to the failure of the Navy to supply the information to the GAO.
You can't call in two admirals who sent reports that the yard should be kept open which were fraudulently concealed from the GAO and the Congress, you can't call in the admiral and have him testify that he was instructed by the Navy, which is an obstruction of justice not to testify before--
Unknown Speaker: Well, then you're saying he acted within his discretion.
Mr. Specter: --I'm saying that he acted within his authority.
I would disagree, respectfully, about discretion, because I think he had virtually none, but I am saying that he is not equipped to make that kind of a determination, which is judicial.
Unknown Speaker: But, Senator Specter, he did... did he have an obligation under the statute to review whether procedures were properly employed by the Commission?
Mr. Specter: Justice O'Connor, he did not have any such obligation, which is the same answer that General Days gave you.
Unknown Speaker: So you agree with that.
And the President did have two options.
He could send it on with his approval to the Congress, or he could reject it and send it back to the Commission.
Mr. Specter: Correct.
He could send it back to the Commission once or he could reject it totally, or he could just let it sit and not act on it, and there would be no base closings.
But when he has a 72 and a total of 310 in 2 years, he cannot engage in the fact-finding to see if these allegations are true.
And for the purpose of a motion to dismiss, they are all accepted as true, and we have already had the hearing before the district court.
Unknown Speaker: Senator Specter, may I... you've been very clear, I think, on two points.
You said there is to be no cherry-picking by the President under this measure, and no cherry-picking by Congress, but there is by the courts.
And my question to you is this; suppose Congress, concerned about this picking-off problem, wanted to say and the courts too cannot zero in on the Philadelphia base, on the Rice base, on any base, could that... could Congress have done that, would it have been constitutional, or is your argument fundamentally that the courts must always be able to engage in the cherry-picking business in this kind of a legislative setup?
Mr. Specter: Justice Ginsburg, not cherry-picking, but the courts must always be able to review the congressional delegation of authority to see if it is followed by the executive.
That's the fundamental rule of Panama Refining.
Unknown Speaker: But let me withdraw the word cherry-picking, because I don't want to make anything in the pejorative sense.
You have been very clear that it's an all or nothing deal for the legislature, as it is for the executive, but you say it's never an all or nothing deal for the courts, and it is never because this legislation didn't preclude that, or even if Congress had said, and, courts, you too have no business looking at bases one by one?
Suppose Congress had said that, would that have been unconstitutional in your view?
Mr. Specter: It would not be unconstitutional to say the courts could not make individual selections, but that is not the case.
We are not engaged in cherry-picking, as General Days has said, by the court.
The court is asked to send the matter back to the Commission.
The court does not have the competency to decide whether the base should be kept open or not.
The court has the unique competency to decide whether the mandates of the statute have been followed on full disclosure to the GAO and on a hearing.
That is what courts do.
But it would go back to the Base Closing Commission, and they may win on the merits.
But that is a very critical distinction here, Justice Ginsburg, and may it please the entire Court, we are not asking that the yard be kept open.
We are asking that we have a fair day in court.
We are asking, in light of the fundamental purpose of the courts under Marbury v. Madison on judicial review, that the clear precedents of this court be followed under American Airlines--
Unknown Speaker: But, Senator, may I interrupt you?
It seems to me that what you're saying is the most the court can do is to declare that with respect to this one base there was a procedural irregularity, maybe a very serious one, then send it back somehow into the executive process and say you figure out what to do.
And yet the essence of the executive process was that it would proceed on a given timetable on an all, take it or leave it, basis.
And I don't see how that relief is consistent with the scheme of the statute.
Mr. Specter: --Justice Souter, it is consistent because the Base Closing Commission will be sitting again in 1995.
Unknown Speaker: With an entirely different package in front of it.
Mr. Specter: Not really--
Unknown Speaker: In effect, you're saying the court can say add a new item to this year's package, change the next--
Mr. Specter: --No, I'm saying the court has the authority under decisions and under the Administrative Procedure Act to say to the Commission where you flout the direction of Congress and make the law a nullity, because Congress said that you have to turn over the information to the congressional arm, the Comptroller General, the General Accounting office, and where you have to have hearings and you don't do that, do it right.
And if you do--
Unknown Speaker: --Well, do it right, but the time for doing it right is passed.
And your remedy, in effect, as I understand it, involves a court ordering the Commission to consider a different mix from the mix that the Commission otherwise would derive?
Mr. Specter: --Justice Souter, there is ample time for the Commission to act in 1995, because it still is in existence.
The Navy yard is not scheduled to be closed until 1996.
Unknown Speaker: Well, it may have time, but I don't think that goes to my question.
But let me ask you a different question, which I thought you might get close to in answering Justice Ginsburg's.
Assuming that the court finds that with respect to the Philadelphia shipyard there was a significant procedural irregularity.
We've got judicial review, that's the conclusion... whatever relief the court gives, whether it were... and you're not asking for it... you tell me if it were to order the closure to... process to be halted, or whether it's some kind of a remand procedure which you've described, why doesn't the scheme of the Act require the court to take the package all or nothing, so that if there's something wrong with Philadelphia, there's something wrong infecting the entire political mix which it was the object of the statute to require both Congress and the President to act on as a package?
Mr. Specter: Because--
Unknown Speaker: So if Philadelphia's tainted, why don't we say that the relief is going to affect all of the others?
Mr. Specter: --Because the court ought to act on the most restricted basis possible, as the--
Unknown Speaker: Well, the Act... the court also ought to act consistent with the intent of Congress, and the intent of Congress to regard a package as a package is pretty clear, isn't it?
Mr. Specter: --Not with respect to judicial action.
It is clear with respect to presidential action or congressional action, but not at all as to judicial action.
Justice Souter, when you postulate these concerns and these problems on remedy, I grant you that there are some concerns which we have to address, and I think we have... can do it consistent with plaintiff's position.
But the other side of it is that you're saying to the Navy if you let this go through, you can conceal reports.
Congress says full disclosure goes to the General Accounting Office.
Unknown Speaker: No.
The other side of it is basically that the... that this is essentially a political pact between two branches of the Government and the Congress can decide what to do about it if there is a procedural irregularity.
That's the alternative.
Mr. Specter: The two branches of Congress, Justice Souter, may not make a political pact in derogation of the Constitution.
This Court in Franklin reaffirmed Panama Refining, which said when Congress tried to give general legislative authority to the President without appropriate standards it was unconstitutional.
Unknown Speaker: But, Senator--
Mr. Specter: The Congress and the President may not make a pact which is unconstitutional.
That's why we have Marbury v. Madison and this Court.
Unknown Speaker: --But, Senator, that's what confuses me about the answer to the question I asked you earlier.
The President has an obligation to obey the law and the Constitution, and yet you postulated that the President, with full knowledge of a procedural irregularity, could submit this list to the Congress.
I should have thought if your case is one in which you are vindicating the rule of law, the President had absolute obligation under the hypothesis we put to refuse to transmit a list that was improperly composed.
Mr. Specter: Justice Kennedy--
Unknown Speaker: I just don't see how you can answer the way you did consistently with your whole theory of the case.
Mr. Specter: --Well, I think it is consistent for this reason.
The President has a list with 72 bases and he has an allegation that there is a failure to comply with the statute on one list, and he knows there's a judicial system and he knows that in the conference report the Congress said that there shall not be judicial review under a number of items, selection criteria, force review.
But the Congress did not say no judicial review on the issue of a hearing and full disclosure, and the President knows that in Abbot's Laboratories and in Bowen v. Michigan Doctors, that this Court--
Unknown Speaker: No, but, Senator, those were cases that go to the question of whether the statute authorized judicial review, and as I understand your position, even if the statute said, notwithstanding procedural violations, the courts may not review anything, you're saying that statute would be unconstitutional?
Mr. Specter: --I'm saying it would be unconstitutional if it precludes judicial review, if it violates separation of powers, and that is Panama Refining.
Unknown Speaker: See, Abbot Laboratories and those cases just are questions of whether the statute authorized judicial review.
Mr. Specter: Well, I'm on to the second branch.
I'm trying to cover my argument as to the alternative theory.
Unknown Speaker: Senator Specter, in all the cases that you've given as examples, those were examples where the executive should not have acted.
That's the theory of it.
But you said something that... in response to Justice Kennedy's question that really concerned me, because it was always my understanding that the Constitution is the highest law for every official in the land, and Congress has an obligation not to approve anything that it believes is inconsistent with the Constitution.
The President has an obligation not to go forward with any measure that the President believes is unconstitutional.
It isn't a question that while these officers... the Constitution is in the trust of the Court alone, these officers don't have to worry about that because the Constitution is the Court's concern.
I'm sure that you really didn't mean to say that, but that's what came across to me in your answer to Justice Kennedy's question.
Mr. Specter: Justice Ginsburg, the question of review of what the Commission did is not one the President can undertake.
He cannot undertake it because he is not qualified to do it, and he only has 10 days and he has 72 bases.
The question of review as to whether there is compliance with the Constitution is one which this Court has acted on.
And while it is true that the Congress has the responsibility to uphold the Constitution, and so does the President, we are not equipped, as Senator Dixon said, on the resolution of disapproval to take up these questions.
The President was asked to review this matter and he said I can't get involved in that.
And we made an offer to prove that.
Unknown Speaker: The President doesn't have to use the same criteria that the Commission used.
He could disapprove it for any reason, couldn't he?
I mean it's a brand new judgment when it gets to him.
Mr. Specter: --Justice Scalia.
Unknown Speaker: He could just say, I like Philadelphia and I'm not going to close the Philadelphia Navy Yard, no matter what.
He could say that if he wants.
Mr. Specter: Not realistically, Justice Scalia, because the consequence of that would be to reject the entire list.
Unknown Speaker: Well--
Mr. Specter: You see, the Court--
Unknown Speaker: --But he could do that if he wants, can't he?
Mr. Specter: --Yes.
Unknown Speaker: Not realistically, but legally, I mean.
Mr. Specter: But that's a price he's not prepared to pay.
There was an arrangement here for the Congress and the President to distance themselves from this political hot potato, and they arrived at an arrangement where to have a fair process, a word which was not mentioned by General Days, not mentioned in his brief, and it's the introductory purpose of the Act, a fair process.
And how do you get a fair process with a political hot potato like this one where the President doesn't want to have to do something politically unpopular and the Congress doesn't want to have to do--
Unknown Speaker: Well, we don't read laws that way.
I mean, the fact is that the President had an independent judgment, that whatever the Commission came up with did not govern, and even the criteria it used did not govern.
It was entirely the President's call to approve this, and if he didn't want to, to say I don't like it.
I don't care how you did it.
Maybe you did it right, maybe you did it wrong, I don't like it.
Mr. Specter: --Justice Scalia, he did not know that when he issued approval.
The Commission handed him a list on June 30th of 1991 and he made an approval on July 10th--
Unknown Speaker: Well, Senator, as I understand your--
Mr. Specter: --10 days later.
Unknown Speaker: --Response to Justice Ginsburg, even if he knew the statute had not been followed and therefore, under your theory, the Constitution had been violated, he would properly have said I've got to approve this package.
I think that's what you've said to us.
Mr. Specter: I believe that the practical reality... and I gave you a candid answer to that question... is that the President cannot reject 72 bases because someone is saying to him that the mandate hasn't been followed as to the Philadelphia Navy Yard.
Because he's not equipped to do that.
That's a judicial function.
The President is not equipped to do that.
Unknown Speaker: Well, but you're saying even he were equipped and he had unimpeachable evidence of what you consider to be a plain constitutional violation, you're saying, well, he doesn't have to follow the Constitution, that's for the courts--
Mr. Specter: No, he has to follow the Constitution.
But when Justice Kennedy asked me the question about what the President should do, there is a legal duty and there is a realistic process which he can follow, and he would say the same thing that Senator Dixon said, and that is to leave it to the courts.
We have an administrative process in our country.
Unknown Speaker: --Well, he can't knowingly prosecute somebody that he believes is absolutely innocent, can he?
Those are for the courts.
Mr. Specter: Well--
Unknown Speaker: Surely that can't be your position, Senator.
Mr. Specter: --Well, that is not my position, that a prosecutor or a President should prosecute someone who is innocent, but that's about what we have here when you have a yard closed and you have a congressional mandate ignored and you have fraudulent concealment of evidence, and you have obstruction of justice.
It's a lot like what this Court said in Franklin where there's a robbery of the representation rights of the people and you have a process which is not followed and you have a lot of theoretical considerations as to what the President can or can't do, but realistically he cannot act on allegations, the court can't act on allegations, the court can only act on proof.
But if you don't give us a day in court, if you don't permit us to come in and show these matters, the President wouldn't give us an opportunity to do that, the Congress wouldn't hear it... I asked Senator Dixon specifically, but he reserved it.
He said our rejection of the resolution of disapproval does not foreclose you from the courts.
We're not passing on the procedural requirements.
Unknown Speaker: Senator Specter, I think your reliance on Panama Refining may be rather strained.
In that case the law... on page 4, that the Court says if the citizens is to be punished for the crime of violating a legislative order or an executive order, the due process requires it shall appear that the order is within the authority of the officer.
That's where the... you're going after the citizen to punish him.
Here you don't have any question of that sort of an individual right, so I think the claim that Panama Refining supports judicial review here is very difficult to make out.
Mr. Specter: Chief Justice Rehnquist, I respectfully disagree with you categorically.
The decision in Panama Refining was on the basis of the entire statutory scheme, not just on the basis of how it affected an individual.
And this Court said, at page 432 of 293 U.S. Reports that where there is delegation which exceeds congressional authority, Congress cannot give lawmaking power to the President.
There have to be standards established, and if--
Unknown Speaker: But that's on the very same page that the language I just read to you is.
It's in the context of the Government proceeding against an individual and the individual says the order you're charging me with violating wasn't authorized.
Mr. Specter: --Mr. Chief Justice, the statute... the case invalidates the delegation on much broader grounds.
It invalidates the delegation on all of the presidential authority to impact on the transportation of petroleum products, far beyond that individual case.
Unknown Speaker: At the instance of someone who was sought to be prosecuted for transporting the hot oil, wasn't--
Mr. Specter: Justice Scalia, that is one aspect, but it was much broader.
The actions was... the statute was invalidated on much broader grounds.
Unknown Speaker: --Sure, but you still got to find somebody who has had a right violated.
I mean, there are a lot of... a lot of violations of separation of powers, a lot of things that can be done wrong which we judges have no power to reach unless somebody has been harmed in right.
Mr. Specter: Justice Scalia--
Unknown Speaker: And I don't see where that is here.
Mr. Specter: --The right violated and the standing to bring this suit has not been challenged by the Government.
And under the standards which you articulated in your opinion in Franklin, we have met that standard of showing that a right has been violated.
And I would urge the Court--
Unknown Speaker: Well, but, Senator, it is true that it's a statutory right that they would say is violated.
I don't think they agree with your submission that the violation of statutory procedures always also violates the Constitution, which I think is part of your submission.
Mr. Specter: --It rises to the level of a violation of separation of powers when the executive branch disregards the standards.
In Panama there were no standards set, and in the American Airlines case where Judge Burger, later Chief Justice, picked up the issue about invalid authority, invalid administrative authority, handing an order to a President which was invalid; the President had a nullity before him.
So that the cases under the common law decisions... and Flying Fish is another one... going back to 1804, a consistent line to say that where the authority is not exercised by the executive, and in this case the Base Closing Commission in conformity with the standards, which it certainly was not, that there is a violation of separation of powers.
I've not had an opportunity to deal to any extent with the Administrative Procedures Act, which was the gravamen of the review here under Franklin.
And I would urge this Court not to expand the doctrine of Franklin.
This case is fundamentally different from Franklin because in Franklin the President had the authority to revise the Census data, had supervisory authority to modify it and amended it, which the President cannot do here.
And that was a 5 to 4 decision.
And to permit administrative agencies in our society to operate without judicial review on the distinction of what is final administrative agency action, where here the Base Commission decision had a direct impact on the parties involved and was final.
And I would offer you a syllogism, that where the veto power of the Congress does not defeat finality of administrative action, and the Government concedes that because the Congress is excluded from the Administrative Procedure Act, but the congressional veto does not take us out from under the APA, not should the virtually identical--
Unknown Speaker: Thank you, Senator Specter.
Mr. Specter: --Congressional authority.
Unknown Speaker: Your time has expired.
General Days, you have 4 minutes remaining.
Rebuttal of Drew S. Days, III
Mr. Days, III: Mr. Chief Justice and the Court, Senator Specter refers to a fair process, but I think it's important to emphasize that what Congress had in mind was a fair process that would result in a timely closure of bases, so it's the relationship between fairness and timeliness.
And I think the fairness in the Act comes from several sources.
One, it's fair to Congress because it involves Congress in an intimate way.
The President is on the line, which means that he's not a person who can hide behind the decisions that are made.
There's an independent commission, as I said earlier.
But there's also a concern for communities.
The Act itself has a provision that deals with the problems of transition once decisions are made with respect to closing.
Getting back to the question of whether the statute authorizes judicial review, we think the fast-track procedure indicates an absence of judicial review expectations.
The 45 days given to Congress, the 2 hour debate, there is an opportunity for any Member of the Congress to bring to a vote a Joint Resolution of Disapproval.
But we think that what the statute reflects is the decision to give to the President and the Congress the ability to weigh the seriousness of alleged procedural violations against the need to proceed with the entire package.
Mr. Specter refers to the sense of Congress resolution.
I won't get into that, but we refer to it on page 17 of our reply brief.
And I think that resolution ultimately reflects the approval by the Congress of the recommendations made by the Base Closing Commission in this case.
On the question of unconstitutionality, as I understand unconstitutionality under these circumstances, it would have to mean that Congress could not authorize the President to do what the President did in this case, which was to approve the package, even though that was consistent with the statute.
For the foregoing reasons, we ask this Court to reverse the decision of the court of appeals, thereby permitting the base closure process that the President and the Congress agreed upon in the 1990 Act to go forward.
We think to do otherwise would disrupt the careful balance struck between the political branches.
It would intrude on Congress' statutory oversight role and it would make expedition and finality impossible to achieve in an area of national security and military policy uniquely within the competence of Congress and the President.
Chief Justice Rehnquist: Thank you, General Days.
The case is submitted.
Argument of Justice Blackmun
Mr. Blackmun: On behalf of the Chief Justice, I have the announcement to make in No.93-289 Dalton against Specter, and I read his bench statement.
In this case, respondent sought to prevent the Secretary of Defense from carrying out a decision by the President to close the Philadelphia Naval Shipyard.
The President's decision was the end result of a selection process prescribed by the Defense Base Closure and Realignment Act of 1990.
The United States Court of Appeals for the Third Circuit held that judicial review of the decision was available to ensure that various participants on the selection process had complied with a procedural requirements imposed by the Base Closure Act.
The Court today holds that judicial review of the decision to close the Philadelphia Shipyard is not available and accordingly, the judgment of the Court of Appeals is reversed.
Justice Souter has filed an opinion concurring in part and concurring in the judgment in which I and Justice Stevens and Justice Ginsburg have joined.
I also have filed a separate opinion concurring in part and concurring in the judgment.