The Reviewability of the President's Statutory Powers

From the Supreme Court's earliest days, it has reviewed some, but not all, challenges to the President's claims that a statute authorized his action. Not surprisingly, the Court's decisions granting review of the President's assertions of statutory powers have garnered more attention than its denials of review. Beginning with Marbury v. Madison1 and Little v. Barreme,2 gaining momentum in the twentieth century with the extensive discussion of statutory authority in Youngstown Sheet & Tube Co. v. Sawyer3 and Dames & Moore v. Regan,4 and accelerating in recent years with Hamdi v. Rumsfeld,5 Hamdan v. Rumsfeld,6 and Medellin v. Texas,7 the Court has examined the validity of the President's claims of statutory authorization. These decisions help to solidify a common and comfortable assumption that judicial review extends to whether a President's actions have statutory authority.

That assumption is only half right. In a long line of decisions, the Supreme Court has declined to review whether the President has properly invoked his statutory powers-and declined not because of jurisdictional or standing problems, but instead on the basis of its own freestanding reviewability doctrine. Specifically, this doctrine operates to exclude judicial review of the determinations or findings the President makes to satisfy conditions for invoking grants of statutory power.