On the merits, the district court sided with the government, holding that Proclamation 9564 did not conflict with the land-management objectives of the O&C Act. The Ninth Circuit panel affirmed the district court over a powerful partial dissent by Judge Richard Tallman, who wrote that “the conflict between the O&C Act and Proclamation 9564 could not be more self-evident.” That the court reached the merits means that the president lost on justiciability, which could be a blow to presidential power, at least in the Ninth Circuit.
In its briefing, the government had relied on Dalton v. Specter to argue that Proclamation 9564 is immune from judicial review. The panel unanimously rejected this reasoning. In a nutshell, the panel created a significant exception for Dalton’s preclusive effect—specifically, whenever the challengers present a “reviewable limit” on a president’s action. In Murphy Co., the “reviewable limit” was the plaintiffs’ allegation that President Biden’s defense of the Proclamation conflicts with another statute. According to the panel, this claim also “could be considered constitutional” because the plaintiffs allege that “the President violated separation of powers by directing the [Secretary of the Interior] to act in contravention of a duly enacted law.”
If it remains law of the circuit, then Murphy Co. v. Biden would make the Ninth Circuit an outlier when it comes to judicial review of presidential action. The Federal Circuit, for example, reads Dalton v. Specter to preclude ultra vires review. See Motions Sys. Corp. v. Bush, 437 F.3d 1356 (Fed. Cir. 2006). Although the D.C. Circuit allows for judicial review of a president’s statutory powers, the court imposes heightened pleading requirements, which no party has met to date. See Mass. Lobstermen’s Ass’n v. Ross, 945 F.3d 535, 540 (D.C. Cir. 2019); Mt. States Legal Found. v. Bush, 306 F.3d 1132 (D.C. Cir. 2002); Tulare County v. Bush, 306 F.3d 1138 (D.C. Cir. 2002).
Notably, the D.C. Circuit has held oral argument in a controversy that is nearly identical to Murphy Co. v. Biden. See American Forest Resource Council v. United States, No. 20-5008.