490
Breyer, J., dissenting
States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 40-42 (1983). The President has not so narrowed his discretionary power through rule, nor is his implementation subject to judicial review under the terms of the Administrative Procedure Act. See, e. g., Franklin v. Massachusetts, 505 U. S. 788, 801 (1992) (APA does not apply to President absent express statement by Congress).
While I believe that these last mentioned considerations are important, they are not determinative. The President, unlike most agency decisionmakers, is an elected official. He is responsible to the voters, who, in principle, will judge the manner in which he exercises his delegated authority. Whether the President's expenditure decisions, for example, are arbitrary is a matter that in the past has been left primarily to those voters to consider. And this Court has made clear that judicial review is less appropriate when the President's own discretion, rather than that of an agency, is at stake. See Dalton v. Specter, 511 U. S. 462, 476 (1994) (Presidential decision on military base closure recommendations not reviewable; President could "approv[e] or disapprov[e] the recommendations for whatever reason he sees fit"); Franklin, 505 U. S., at 801 (President's decision whether or not to transmit census report to Congress was unreviewable by courts for abuse of discretion); cf. id., at 799-800 (it was "important to the integrity of the process" that the decision was made by the President, a "constitutional officer" as opposed to the unelected Secretary of Commerce). These matters reflect in part the Constitution's own delegation of "executive Power" to "a President," Art. II, § 1; cf. Clinton v. Jones, 520 U. S. 681, 710-711 (1997) (Breyer, J., concurring in judgment) (discussing unitary Executive), and we must take this into account when applying the Constitution's nondelegation doctrine to questions of Presidential authority.
Consequently I believe that the power the Act grants the President to prevent spending items from taking effect does not violate the "nondelegation" doctrine.
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