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27 Ariz. St. L.J. 845 (1995)
Is There Such a Thing as Extraconstitutionality: The Puzzling Case of Dalton v. Specter

handle is hein.journals/arzjl27 and id is 855 raw text is: Is There Such a Thing as Extraconstitutionality?: The Puzzling Case of Dalton v. Specter Larry Alexander * & Evan Tsen Lee** Does a federal official violate the Constitution when he acts beyond all statutory and constitutional authority? In Dalton v. Specter,' decided last Term, the Supreme Court said no. What's wrong with this picture? I. THE CASE In 1990, Congress set in motion a process to close military installations across the country. The process was laid out in the Defense Base Closure and Realignment Act (Act) 2 The Act required the Secretary of Defense to make recommendations about base closures to Congress and to the Defense Base Closure and Realignment Commission (Commission).3 The Commission then was required to submit its report to the President.4 The President could send the Commission back to the drawing board by disapproving the report,5 or he could certify his approval and send the report along to Congress.6 Under the Act, Congress then would have forty-five days to disapprove of the report in its entirety . In the absence of such disapproval, the Secretary of Defense then would be required to close all bases included in the report.8 In April 1991, the Secretary of Defense recommended the closure or realignment of eighty-two bases, including the Philadelphia Naval Shipyard.9 The Commission decided not to accept some of the Secretary's • Warren Distinguished Professor of Law, University of San Diego. •* Professor of Law, University of California, Hastings College of the Law. The authors thank David Strauss for his helpful comments. 1. 114 S. Ct. 1719 (1994). We refer to this litigation generically as Specter rather than as Dalton because the case was titled Specter v. Garrett in the courts below. 2. 104 Stat. 1808, reprinted in 10 U.S.C. § 2687 (1994) note. 3. Defense Base Closure and Realignment Act § 2903(c)(1), reprinted in 10 U.S.C. § 2687 note. 4. § 2903(d)(2)(A), reprinted in 10 U.S.C. § 2687 note. 5. § 2903(e)(3), reprinted in 10 U.S.C. § 2687 note. 6. § 2903(e)(2), (4), reprinted in 10 U.S.C. § 2687 note. 7. § 2904(b), reprinted in 10 U.S.C. § 2687 note. 8. § 2904(a), (b)(1), reprinted in 10 U.S.C. § 2687 note. 9. Specter, 114 S. Ct. at 1723.