Chicago Southern Air Lines v. Waterman Steamship Corporation/Dissent Douglas
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 air transportation.  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.  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.  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. Congress made reviewable by the courts only orders 'issued by the Board under this Act.'  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.  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' 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.
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.  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 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, th 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.
^1 See §§ 401, 408(b), 52 Stat. 987, 1001, 49 U.S.C. §§ 481, 488, 49 U.S.C.A. §§ 481, 488.
^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), 49 U.S.C.A. § 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), 49 U.S.C.A. § 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), 49 U.S.C.A. § 482(a). An air carrier is defined as a citizen (§ 1(2), 52 Stat. 977, 49 U.S.C. § 401(2), 49 U.S.C.A. § 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), 49 U.S.C.A. § 401(19).
^4 § 1006(a), supra, note 2.
^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.
^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, 49 U.S.C.A. § 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), 49 U.S.C.A. § 401(21).