Section 1006 of the Civil Aeronautics Act, authorizing judicial
review of certain orders of the Civil Aeronautics Board, does not
apply to orders granting or denying applications of citizens of the
United States for authority to engage in overseas and foreign air
transportation which are subject to approval by the President under
§ 801. Pp.
333 U. S.
104-114.
(a) Orders of the Board as to certificates for overseas or
foreign air transportation are not mature, and therefore are not
susceptible of judicial review until they are made final by
presidential approval, as required by § 801. P.
333 U. S.
114.
Page 333 U. S. 104
(b) After such approval has been given, the final orders embody
presidential discretion as to political matters beyond the
competence of the courts to adjudicate. P.
333 U. S.
114.
159 F.2d 828, reversed.
The Circuit Court of Appeals denied a motion to dismiss a
petition seeking review of certain orders of the Civil Aeronautics
Board granting and denying certificates of public convenience and
necessity authorizing certain American air carriers to engage in
overseas and foreign air transportation after such orders had been
approved by the President under § 801 of the Civil Aeronautics Act.
159 F.2d 828. This Court granted certiorari. 331 U.S. 802.
Reversed, p.
333 U. S.
114.
MR. JUSTICE JACKSON delivered the opinion of the Court.
The question of law which brings this controversy here is
whether § 1006 of the Civil Aeronautics Act, 49 U.S.C. § 646,
authorizing judicial review of described orders of the Civil
Aeronautics Board, includes those which grant or deny applications
by citizen carriers to engage in overseas and foreign air
transportation which are subject to approval by the President under
§ 801 of the Act. 49 U.S.C. § 601.
Page 333 U. S. 105
By proceedings not challenged as to regularity, the Board, with
express approval of the President, issued an order which denied
Waterman Steamship Corporation a certificate of convenience and
necessity for an air route and granted one to Chicago and Southern
Air Lines, a rival applicant. Routes sought by both carrier
interests involved overseas air transportation, § 1(21)(b), between
Continental United States and Caribbean possessions and also
foreign air transportation, § 1(21)(c), between the United States
and foreign countries. Waterman filed a petition for review under §
1006 of the Act with the Circuit Court of Appeals for the Fifth
Circuit. 159 F.2d 828. Chicago and Southern intervened. Both the
latter and the Board moved to dismiss, the grounds pertinent here
being that, because the order required and had approval of the
President under § 801 of the Act, it was not reviewable. The Court
of Appeals disclaimed any power to question or review either the
President's approval or his disapproval, but it regarded any Board
order as incomplete until court review, after which "the completed
action must be approved by the President as to citizen air carriers
in cases under Sec. 801." 159 F.2d 828, 831. Accordingly, it
refused to dismiss the petition, and asserted jurisdiction. Its
decision conflicts with one by the Court of Appeals for the Second
Circuit.
Pan American Airways, Inc. v. Civil Aeronautics
Board, 21 F.2d 810. We granted certiorari both to the Chicago
and Southern Air Lines, Inc. (No. 78) and to the Board (No. 88) to
resolve the conflict.
Congress has set up a comprehensive scheme for regulation of
common carriers by air. Many statutory provisions apply
indifferently whether the carrier is a foreign air carrier or a
citizen air carrier, and whether the carriage involved is
"interstate air commerce," "overseas air commerce," or "foreign air
commerce," each being appropriately defined. 49 U.S.C. § 401(20).
All air carriers by similar procedures must obtain from the Board
certificates
Page 333 U. S. 106
of convenience and necessity by showing a public interest in
establishment of the route and the applicant's ability to serve it.
But when a foreign carrier asks for any permit, or a citizen
carrier applies for a certificate to engage in any overseas or
foreign air transportation, a copy of the application must be
transmitted to the President before hearing, and any decision,
either to grant or to deny, must be submitted to the President
before publication, and is unconditionally subject to the
President's approval. Also, the statute subjects to judicial
review
"any order, affirmative or negative, issued by the Board under
this Act, except any order in respect of any foreign air carrier
subject to the approval of the President as provided in section 801
of this Act."
It grants no express exemption to an order such as the one
before us, which concerns a citizen carrier but which must have
Presidential approval because it involves overseas and foreign air
transportation. The question is whether an exemption is to be
implied.
This Court long has held that statutes which employ broad terms
to confer power of judicial review are not always to be read
literally. Where Congress has authorized review of "any order" or
used other equally inclusive terms, courts have declined the
opportunity to magnify their jurisdiction, by self-denying
constructions which do not subject to judicial control orders
which, from their nature, from the context of the Act, or from the
relation of judicial power to the subject matter, are inappropriate
for review. Examples are set forth by Chief Justice Hughes in
Federal Power Commission v. Metropolitan Edison Co.,
304 U. S. 375,
304 U. S. 384.
Cf. Rochester Telephone Corporation v. United States,
307 U. S. 125,
307 U. S.
130.
The Waterman Steamship Corporation urges that review of the
problems involved in establishing foreign air routes are of no more
international delicacy or strategic importance than those involved
in routes for water
Page 333 U. S. 107
carriage. It says, "It is submitted that there is no basic
difference between the conduct of the foreign commerce of the
United States by air or by sea." From this premise, it reasons that
we should interpret this statute to follow the pattern of judicial
review adopted in relation to orders affecting foreign commerce by
rail,
Lewis-Simas-Jones Co. v. Southern Pacific Co.,
283 U. S. 654;
News Syndicate Co. v. New York Central R. Co.,
275 U. S. 179, or
communications by wire,
United States v. Western Union
Telegraph Co., 272 F. 893, or by radio,
Mackay Radio &
Telegraph Co. v. Federal Communications Commission, 68
App.D.C. 336, 97 F.2d 641, and it likens the subject matter of
aeronautics legislation to that of Title VI of the Merchant Marine
Act of 1936, 46 U.S.C. § 1171, and the function of the Aeronautics
Board in respect to overseas and foreign air transportation to that
of the Maritime Commission to such commerce when water-borne.
We find no indication that the Congress either entertained or
fostered the narrow concept that air-borne commerce is a mere
outgrowth or overgrowth of surface-bound transport. Of course, air
transportation, water transportation, rail transportation, and
motor transportation all have a kinship in that all are forms of
transportation, and their common features of public carriage for
hire may be amenable to kindred regulations. But these resemblances
must not blind us to the fact that legally, as well as literally,
air commerce, whether at home or abroad, soared into a different
realm than any that had gone before. Ancient doctrines of private
ownership of the air as appurtenant to land titles had to be
revised to make aviation practically serviceable to our society. A
way of travel which quickly escapes the bounds of local regulative
competence called for a more penetrating, uniform and exclusive
regulation by the nation than had been thought appropriate for the
more easily controlled commerce of the past. While transport
Page 333 U. S. 108
by land and by sea began before any existing government was
established, and their respective customs and practices matured
into bodies of carrier law independently of legislation, air
transport burst suddenly upon modern governments, offering new
advantages, demanding new rights, and carrying new threats which
society could meet with timely adjustments only by prompt
invocation of legislative authority. However useful parallels with
older forms of transit may be in adjudicating private rights, we
see no reason why the efforts of the Congress to foster and
regulate development of a revolutionary commerce that operates in
three dimensions should be judicially circumscribed with analogies
taken over from two-dimensional transit.
The "public interest" that enters into awards of routes for
aerial carriers, who in effect obtain also a sponsorship by our
government in foreign ventures, is not confined to adequacy of
transportation service, as we have held when that term is applied
to railroads.
Texas v. United States, 292 U.
S. 522,
292 U. S. 531.
That aerial navigation routes and bases should be prudently
correlated with facilities and plans for our own national defenses
and raise new problems in conduct of foreign relations is a fact of
common knowledge. Congressional hearings and debates extending over
several sessions, and departmental studies of many years, show that
the legislative and administrative processes have proceeded in full
recognition of these facts.
In the regulation of commercial aeronautics, the statute confers
on the Board many powers conventional in other carrier regulation
under the Congressional commerce power. They are exercised through
usual procedures, and apply settled standards with only customary
administrative finality. Congress evidently thought of the
administrative function in terms used by this Court of another of
its agencies in exercising interstate commerce power:
"Such a body cannot in any proper sense be
Page 333 U. S. 109
characterized as an arm or an eye of the executive. Its duties
are performed without executive leave, and, in the contemplation of
the statute, must be free from executive control."
Humphrey's Executor v. United States, 295 U.
S. 602,
295 U. S. 628.
Those orders which do not require Presidential approval are subject
to judicial review to assure application of the standards Congress
has laid down.
But when a foreign carrier seeks to engage in public carriage
over the territory or waters of this country, or any carrier seeks
the sponsorship of this Government to engage in overseas or foreign
air transportation, Congress has completely inverted the usual
administrative process. Instead of acting independently of
executive control, the agency is then subordinated to it. Instead
of its order serving as a final disposition of the application, its
force is exhausted when it serves as a recommendation to the
President. Instead of being handed down to the parties as the
conclusion of the administrative process, it must be submitted to
the President before publication even can take place. Nor is the
President's control of the ultimate decision a mere right of veto.
It is not alone issuance of such authorizations that are subject to
his approval, but denial, transfer, amendment, cancellation, or
suspension as well. And likewise subject to his approval are the
terms, conditions, and limitations of the order. 49 U.S.C. § 601.
Thus, Presidential control is not limited to a negative, but is a
positive and detailed control over the Board's decisions
unparalleled in the history of American administrative bodies
Congress may, of course, delegate very large grants of its power
over foreign commerce to the President.
Norwegian Nitrogen
Products Co. v. United States, 288 U.
S. 294;
United States v. George S. Bush &
Co., 310 U. S. 371. The
President also possesses in his own right certain powers conferred
by the Constitution on him as Commander-in-Chief and as the
Nation's organ in foreign affairs. For
Page 333 U. S. 110
present purposes, the order draws vitality from either or both
sources. Legislative and Executive powers are pooled obviously to
the end that commercial, strategic, and diplomatic interests of the
country may be coordinated and advanced without collision or
deadlock between agencies.
These considerations seem controlling on the question whether
the Board's action on overseas and foreign air transportation
applications by citizens are subject to revision or overthrow by
the courts.
It may be conceded that a literal reading of § 1006 subjects
this order to reexamination by the courts. It also appears that the
language was deliberately employed by Congress, although nothing
indicates that Congress foresaw or intended the consequences
ascribed to it by the decision of the Court below. The letter of
the text might with equal consistency be construed to require any
one of three things: first, judicial review of a decision by the
President; second, judicial review of a Board order before it
acquires finality through Presidential action, the court's decision
on review being a binding limitation on the President's action;
third, a judicial review before action by the President, the latter
being at liberty wholly to disregard the court's judgment. We think
none of these results is required by usual canons of
construction.
In this case, submission of the Board's decision was made to the
President, who disapproved certain portions of it and advised the
Board of the changes which he required. The Board complied, and
submitted a revised order and opinion which the President approved.
Only then were they made public, and that which was made public and
which is before us is only the final order and opinion containing
the President's amendments and bearing his approval. Only at that
stage was review sought,
Page 333 U. S. 111
and only then could it be pursued, for then only was the
decision consummated, announced, and available to the parties.
While the changes made at direction of the President may be
identified, the reasons therefor are not disclosed beyond the
statement that,
"because of certain factors relating to our broad national
welfare and other matters for which the Chief Executive has special
responsibility, he has reached conclusions which require"
changes in the Board's opinion.
The court below considered, and we think quite rightly, that it
could not review such provisions of the order as resulted from
Presidential direction. The President, both as Commander-in-Chief
and as the Nation's organ for foreign affairs, has available
intelligence services whose reports neither are nor ought to be
published to the world. It would be intolerable that courts,
without the relevant information, should review and perhaps nullify
actions of the Executive taken on information properly held secret.
Nor can courts sit
in camera in order to be taken into
executive confidences. But even if courts could require full
disclosure, the very nature of executive decisions as to foreign
policy is political, not judicial. Such decisions are wholly
confided by our Constitution to the political departments of the
government, Executive and Legislative. They are delicate, complex,
and involve large elements of prophecy. They are and should be
undertaken only by those directly responsible to the people whose
welfare they advance or imperil. They are decisions of a kind for
which the Judiciary has neither aptitude, facilities, nor
responsibility, and have long been held to belong in the domain of
political power not subject to judicial intrusion or inquiry.
Coleman v. Miller, 307 U. S. 433,
307 U. S. 454;
United States v. Curtiss-Wright Corporation, 299 U.
S. 304,
299 U. S.
319-321;
Oetjen v. Central Leather Co.,
246 U. S. 297,
246 U. S.
302.
Page 333 U. S. 112
We therefore agree that whatever of this order emanates from the
President is not susceptible of review by the Judicial
Department.
The court below thought that this disability could be overcome
by regarding the Board as a regulatory agent of Congress to pass on
such matters as the fitness, willingness, and ability of the
applicant, and that the Board's own determination of these matters
is subject to review. The court, speaking of the Board's action,
said:
"It is not final till the Board and the court have completed
their functions. Thereafter, the completed action must be approved
by the President as to citizen air carriers in cases under Sec.
801."
The legal incongruity of interposing judicial review between the
action by the Board and that by the President are as great as the
practical disadvantages. The latter arise chiefly from the
inevitable delay and obstruction in the midst of the administrative
proceedings. The former arises from the fact that, until the
President acts, there is no final administrative determination to
review. The statute would hardly have forbidden publication before
submission if it had contemplated interposition of the courts at
this intermediate stage. Nor could it have expected the courts to
stay the President's hand after submission while they deliberate on
the inchoate determination. The difficulty is manifest in this
case. Review could not be sought until the order was made
available, and, at that time, it had ceased to be merely the
Board's tentative decision, and had become one finalized by
Presidential discretion.
Until the decision of the Board has Presidential approval, it
grants no privilege and denies no right. It can give nothing and
can take nothing away from the applicant or a competitor. It may be
a step which, if erroneous, will mature into a prejudicial result,
as an order fixing valuations in a rate proceeding may foreshow and
compel a prejudicial rate order. But administrative
Page 333 U. S. 113
orders are not reviewable unless and until they impose an
obligation, deny a right, or fix some legal relationship as a
consummation of the administrative process.
United States v.
Los Angeles & Salt Lake R. Co., 273 U.
S. 299;
United States v. Illinois Central R.
Co., 244 U. S. 82;
Rochester Telephone Corporation v. United States,
307 U. S. 125,
307 U. S. 131.
The dilemma faced by those who demand judicial review of the
Board's order is that, before Presidential approval, it is not a
final determination even of the Board's ultimate action, and after
Presidential approval, the whole order, both in what is approved
without change as well as in amendments which he directs, derives
its vitality from the exercise of unreviewable Presidential
discretion.
The court below considered that, after it reviewed the Board's
order, its judgment would be submitted to the President, that his
power to disapprove would apply after, as well as before, the court
acts, and hence that there would be no chance of a deadlock and no
conflict of function. But if the President may completely disregard
the judgment of the court, it would be only because it is one the
courts were not authorized to render. Judgments, within the powers
vested in courts by the Judiciary Article of the Constitution, may
not lawfully be revised, overturned, or refused faith and credit by
another Department of Government.
To revise or review an administrative decision, which has only
the force of a recommendation to the President, would be to render
an advisory opinion in its most obnoxious form -- advice that the
President has not asked, tendered at the demand of a private
litigant, on a subject concededly within the President's exclusive,
ultimate control. This Court early and wisely determined that it
would not give advisory opinions even when asked by the Chief
Executive. It has also been the firm and unvarying practice of
Constitutional Courts to render no judgments
Page 333 U. S. 114
not binding and conclusive on the parties, and none that are
subject to later review or alteration by administrative action.
Hayburn's Case,
2 Dall. 409;
United States v.
Ferreira, 13 How. 40;
Gordon v. United
States, 117 U.S. 697;
In re Sanborn, 148 U.
S. 222;
Interstate Commerce Commission v.
Brimson, 154 U. S. 447;
La Abra Silver Mining Co. v. United States, 175 U.
S. 423;
Muskrat v. United States, 219 U.
S. 346;
United States v. Jefferson Electric Mfg.
Co., 291 U. S. 386.
We conclude that orders of the Board as to certificate for
overseas or foreign air transportation are not mature, and are
therefore not susceptible to judicial review at any time before
they are finalized by Presidential approval. After such approval
has been given, the final orders embody Presidential discretion as
to political matters beyond the competence of the courts to
adjudicate. This makes it unnecessary to examine the other
questions raised. The petition of the Waterman Steamship Corp.
should be dismissed.
Judgment reversed.
MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BLACK, MR. JUSTICE
REED, and MR. JUSTICE RUTLEDGE concur, dissenting.
Congress has specifically provided for judicial review of orders
of the Civil Aeronautics Board of the kind involved in this case.
That review can be had without intruding on the exclusive domain of
the Chief Executive. And, by granting it, we give effect to the
interests of both the Congress and the Chief Executive in this
field.
The Commerce Clause of the Constitution grants Congress control
over interstate and foreign commerce. Art. I, § 8. The present Act
is an exercise of that power. Congress created the Board and
defined its functions. It specified the standards which the Board
is to apply in granting certificates for overseas and foreign
Page 333 U. S. 115
air transportation. [
Footnote
1] It expressly made subject to judicial review orders of the
Board granting or denying certificates to citizens and withheld
judicial review where the applicants are not citizens. [
Footnote 2] If this were all, there
would be no question.
But Congress did not leave the matter entirely to the Board.
Recognizing the important role the President plays in military and
foreign affairs, it made him a participant in the process.
Applications for certificates of the type involved here are
transmitted to him before hearing, all decisions on the
applications are submitted to him before their publication, and the
orders are "subject to" his approval. [
Footnote 3] Since his decisions in these matters are of a
character which involve an exercise of his discretion in foreign
affairs or military matters, I do not think Congress intended them
to be subject to judicial review.
But review of the President's action does not result from
reading the statute in the way it is written.
Page 333 U. S. 116
Congress made reviewable by the courts only orders "issued by
the Board under this Act." [
Footnote 4] Those orders can be reviewed without reference
to any conduct of the President, for that part of the orders which
is the work of the Board is plainly identifiable. [
Footnote 5] The President is presumably
concerned only with the impact of the order on foreign relations or
military matters. To the extent that he disapproves action taken by
the Board, his action controls. But, where that is not done, the
Board's order has an existence independent of Presidential
approval, tracing to Congress' power to regulate commerce. Approval
by the President under this statutory scheme has relevance for
purposes of review only as indicating when the action of the Board
is reviewable. When the Board has finished with the order, the
administrative function is ended. When the order fixes rights, on
clearance by the President, it becomes reviewable. But the action
of the President does not broaden the review. Review is restricted
to the action of the Board, and the Board alone.
The statute, as I construe it, contemplates that certificates
issued will rest on orders of the Board which satisfy the standards
prescribed by Congress. Presidential approval cannot make valid
invalid orders of the Board. His approval supplements, rather than
supersedes, Board action. Only when the Board has acted within the
limits of its authority has the basis been laid for issuance of
certificates. The requirement that a valid Board order underlie
each certificate thus protects the President, as well as the
litigants and the public interest, against unlawful Board
action.
Page 333 U. S. 117
The importance of the problem is evidenced by the character of
cases controlled by this decision. The present ruling is not
limited to cases granting or denying certificates for air
transportation to and from foreign countries. It also denies power
to review orders governing air transportation between two points in
Alaska, between two points in Hawaii, between Seattle and Juneau,
between New Orleans and San Juan. [
Footnote 6] All of those are now beyond judicial review.
And so they should be so far as conduct of the President is
concerned. But Congress has commanded otherwise as to action by the
Board. The Board can act in a lawless way. With that in mind,
Congress sought to preserve the integrity of the administrative
process by making judicial review a check on Board action. That was
the aim of Congress, now defeated by a legalism which, in my view,
does not square with reality.
In this petition for review, the respondent charged that the
Board had no substantial evidence to support its findings that
Chicago and Southern Air Lines was fit, willing, and able to
perform its obligations under the certificate, and it charged that,
when a change of conditions as to Chicago and Southern Air Lines'
ability to perform was called to the attention of the Board, the
Board refused to reopen the case. I do not know whether there is
merit in those contentions. But no matter how substantial and
important the questions, they are now beyond judicial review. Today
a litigant tenders
Page 333 U. S. 118
questions concerning the arbitrary character of the Board's
ruling. Tomorrow, those questions may relate to the right to
notice, adequacy of hearings, or the lack of procedural due process
of law. But no matter how extreme the action of the Board, the
courts are powerless to correct it under today's decision. Thus,
the purpose of Congress is frustrated.
Judicial review would assure the President, the litigants, and
the public that the Board had acted within the limits of its
authority. It would carry out the aim of Congress to guard against
administrative action which exceeds the statutory bounds. It would
give effect to the interests of both Congress and the President in
this field.
* Together with No. 88,
Civil Aeronautics Board v. Waterman
Steamship Corp., also on certiorari to the same court.
[
Footnote 1]
See §§ 401, 408(b), 52 Stat. 987, 1001, 49 U.S.C. §§
481, 488.
[
Footnote 2]
Section 1006(a) provides in part:
"Any order, affirmative or negative, issued by the Board under
this Act, except any order in respect of any foreign air carrier
subject to the approval of the President as provided in section 801
of this Act, shall be subject to review by the circuit courts of
appeals of the United States or the United States Court of Appeals
for the District of Columbia upon petition, filed within sixty days
after the entry of such order, by any person disclosing a
substantial interest in such order."
52 Stat. 1024, 54 Stat. 1235, 49 U.S.C. § 646(a).
Section 401(a) requires every air carrier to have a certificate
before engaging in air transportation. 52 Stat. 987, 49 U.S.C. §
481(a). There is the same requirement in case of a foreign air
carrier. § 402(a), 52 Stat. 991, 49 U.S.C. § 482(a). An air carrier
is defined as a citizen (§ 1(2), 52 Stat. 977, 49 U.S.C. § 401(2)),
and a foreign air carrier as any person not a citizen, and engaged
in foreign air transportation. § 1(19), 52 Stat. 978, 49 U.S.C. §
401(19).
[
Footnote 3]
§ 801. 52 Stat. 1014, 49 U.S.C. § 601.
[
Footnote 4]
§ 1006(a),
supra, note
2
[
Footnote 5]
The Board had consolidated for hearing 29 applications for
certificates to engage in air transportation which were filed by 15
applicants. The President's partial disapproval of the proposed
disposition of these applications did not relate to the
applications involved in this case. As to them, the action of the
Board stands unaltered.
[
Footnote 6]
By § 801, the approval of the President extends to orders
"authorizing an air carrier to engage in overseas or foreign air
transportation, or air transportation between places in the same
Territory or possession." 52 Stat. 1014, 49 U.S.C. § 601. Section
1(21) includes in overseas air transportation commerce between a
place in the continental United States and a place in a Territory
or possession of the United States, or between a place in a
Territory or possession of the United States and a place in any
other Territory or possession. 52 Stat. 979, 49 U.S.C. §
401(21).