Don’t Count on Help from Courts

Some opponents of closings have been considering legal action to stop the closings, on the assumption that President Bush will approve the commission’s recommendation and Congress will allow it to go into effect by not acting to block it (President Bush has indicated that he will accept the recommendation rather than use his prerogative to send it back to the commission for more work). However, the Congressional Research Service recently examined prospects for court action and concluded that “judicial review is unlikely to be available to remedy alleged failures to comply with the Base Closure Act’s provisions.” The actions likely cannot be judicially reviewed under the Administrative Procedures Act, and even if they could, they likely would fall under the act’s exceptions, it said. Further, it would be hard to make a case that the President exceeded his authority under the base closings law since that law provides “broad discretion” in approving or disapproving the recommendations. Courts likely would allow the process to proceed “even if the Department of Defense, the commission, or the President did not comply” with the base closing law’s requirements, CRS said.