Can the President Exercise “Unreviewable Statutory Authority”?

by Julian Ku

Don’t worry, this post is not about President Bush’s authority to exercise “unreviewable statutory authority” in the war on terrorism. Rather, it is about how President Bush does get to exercise “unreviewable statutory authority” in the administration of U.S. trade laws.

Yesterday, the U.S. Supreme Court denied certiorari in Motion Systems v. Bush, a case challenging President Bush’s decision not to impose import sanctions on certain Chinese products despite an International Trade Commission decision supporting such sanctions. (The S.G.’s Brief opposing cert is here and the lower Court of Appeals decision is here).

The statutory scheme in question, Section 421 to the Trade Act of 1974, allows the President to impose “increased duties or other import restrictions” in order to “prevent or remedy the market disruption” caused by products imported from the PRC. 19 U.S.C. 2451(a). See Act of Oct. 10, 2000, Pub. L. No. 106-286, § 103(a)(3), 114 Stat. 882 (codified at 19 U.S.C. 2451). This Section provides a “safeguard mechanism” applicable only to imports from the PRC that was specially created after the accession of China to the WTO.

Translation: President Bush has the authority to impose trade sanctions on Chinese products. U.S. importers can bring complaints to the International Trade Commission, but the President has the discretion not to follow the ITC determinations under this provision.

What is interesting from a foreign relations perspective is that both lower courts held, fairly uncontroversially, that the President’s decision to exercise his delegated powers under the statutory provision is “unreviewable” by any federal court. How can Congress delegate the President certain powers without giving any court anywhere the right to review his exercise of those powers? Uh, they do it all the time in trade law, and in other foreign affairs laws (Kevin’s post about President Bush’s waiver of funding prohibitions to ICC member countries is another example of this kind of statute).

In other words, the finding that the President has “unreviewable” discretion in the implementation of statutes relating to foreign affairs has a long and distinguished pedigree. Its pedigree is so distinguished that the Supreme Court didn’t even bother taking this case and left the lower court opinions standing.

Does this have implications for the debate over the terrorism detention legislation? Not directly. What it suggests to me is that constitutional challenges to Congress granting the President unreviewable statutory authority in foreign affairs is not by itself a strong challenge. The real constitutional challenge to that legislation will rest upon the alleged deprivation of private individual rights, under the Due Process Clause or the Habeas Clause. The individual rights that may or may not exist are what matter here, and not the supposed aggrandizement of unreviewable power in the mighty executive branch.

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