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Administrative & Regulatory Law News

Spring 2023 — Renewing Regulatory Review

Ninth Circuit Lowers Justiciability Hurdle for Review of President's Statutory Powers

Will Yeatman

Summary

  • 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.
  • 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.
Ninth Circuit Lowers Justiciability Hurdle for Review of President's Statutory Powers
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Courts generally do not perform meaningful judicial review of the president’s statutory powers, and this reluctance stems from two Supreme Court decisions from the early 1990s. In Franklin v. Massachusetts, 505 U.S. 788 (1992), the Court excepted presidential action from judicial review under the Administrative Procedure Act absent a clear statutory statement to the contrary. Two years later, in Dalton v. Specter, 511 U.S. 462 (1994), the Court seemingly shut the door on ultra vires review of the president’s regulatory activity. In Murphy Co. v. Biden, No. 19-35921, 2023 WL 3050074 (9th Cir. Apr. 24, 2023), however, the Ninth Circuit lowered these justiciability hurdles.

The controversy in Murphy Co. centered on former President Barack Obama’s exercise of the Antiquities Act to issue Proclamation 9564, which expanded the Cascade-Siskiyou National Monument in Oregon. The Proclamation directed the Department of the Interior to ban logging within the expanded monument’s borders. In early 2017, two small logging operators brought a legal challenge, alleging that the logging ban conflicted with a nondiscretionary mandate for timber harvesting in the Oregon and California Railroad and Coos Bay Wagon Road Grant Lands Act (O&C Act). In June 2017, the district court stayed the litigation after President Trump directed the Secretary of the Interior to review certain prior Antiquities Act designations, including the Cascade-Siskiyou Monument expansion. The Secretary recommended reducing the size of the Monument, but President Trump did not act on the recommendation, and the district court lifted the stay in February 2018.

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.