The Reviewability of the President's Statutory Powers
Vanderbilt Law Review, Vol. 62, No. 4, p. 1171, 2009
44 Pages Posted: 6 Aug 2009 Last revised: 4 Dec 2009
Date Written: August 4, 2009
This Article argues that longstanding doctrines that exclude judicial review of the determinations or findings the President makes as conditions for invoking statutory powers should be replaced. These doctrines are inconsistent with the fundamental constitutional commitment to reviewing whether federal officials act with legal authorization. Where a statute grants power conditioned upon an official making a determination that certain conditions obtain - as statutes that grant power to the President often do - review of whether that power is validly exercised requires review of the determinations the official makes to invoke the power. Review of those determinations is commonplace with regard to government actors subject to the Administrative Procedure Act. But because the Administrative Procedure Act does not apply to the President, courts have resorted to old common law doctrines barring review of the determinations the President makes to invoke statutory authority. While these doctrines had a justification when judicial review of the President’s actions occurred in individual damages actions against officials who implemented the President’s orders, they no longer do and should be abandoned. Instead, judicial review of the President’s claims of statutory power should extend, as it does for other officials, to all the determinations necessary to evaluate whether the President acts within the limits Congress has prescribed. To better describe and defend such review, this Article argues that we should conceive of it as a branch of ultra vires review, including review of the legal, factual, and law-as-applied-to-fact conclusions necessary to determine whether the President acts within the boundaries of statutory authority.
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