Jeffrey Fastow (Columbia Law School) has posted The Revived Dalton Line on SSRN. Here is the abstract:
A 1994 decision called Dalton v. Specter held that a claim “simply alleging that the President has exceeded his statutory authority” is not, on that basis alone, a constitutional claim. For most of the next three decades, the holding operated narrowly: Dalton prevented litigants from converting ordinary statutory disputes into constitutional cases merely to avoid the limits of APA review established by Franklin v. Massachusetts. A series of 2025 decisions in the D.C. Circuit has now read Dalton far more aggressively, treating constitutional claims as nonconstitutional whenever they are “predicated on” an underlying statutory dispute. This paper argues that the expanded reading, operating in combination with other recent federal courts doctrine, has produced a broader transformation in the law of presidential remedies. The resulting architecture implies that the more specifically Congress legislates against the executive, the more difficult it becomes to obtain judicial relief enforcing those limits. In that sense, the emerging doctrine inverts the logic of Youngstown: the condition under which presidential power is constitutionally weakest becomes, remedially, the condition under which review is most precarious.
The paper situates the new cases within a longer doctrinal history and argues that courts have relied, often implicitly, on four competing accounts of what makes a claim against the President “constitutional” rather than merely statutory: (i) a “textual-formal” account tied to specific allocating clauses; (ii) a “residual-negative” account, embraced by the recent D.C. Circuit cases, under which a claim is constitutional only when the President acts without any statutory authority at all; (iii) an “aggregative Take Care account,” rejected in Dalton itself; and (iv) an “institutional-capacity” account, which this paper defends. On this view, Dalton was right to reject the proposition that every presidential statutory violation becomes a constitutional case. But the revived Dalton line now threatens to collapse structural constitutional claims into ordinary statutory disputes precisely where Congress has attempted most clearly to discipline presidential administration.
Highly Recommended!
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