	Introduction(1)

The Defense Base Closure and Realignment Act of 1990 (Base Closure Act), as amended,generally governs the military base realignment and closure (BRAC) process. (4) However, this report focuseson the effect a failure to comply would have if Members of Congress or other parties sued based onan alleged failure to comply with the Act's provisions. (7) 

	Administrative Procedure Act Claims

The Administrative Procedure Act (APA) provides for judicial review of "final agencyaction," (8) unless either oftwo exceptions applies: (1) when a statute precludes judicial review or (2) when "agency action iscommitted to agency discretion by law." (21) The foundation for this argument is that under the APA, judicialreview is not available if statutes preclude judicial review. (24) 
Souter cited a variety of evidence to support the contention that Congress generally intendedto preclude judicial review under the Base Closure Act: (25) 
statutorily-mandated strict time deadlines for making and implementing BRACdecisions
"the all-or-nothing base-closing requirement at the core of theAct"
congressional frustration resulting from previous attempts to close militarybases
"nonjudicial opportunities to assess any procedural (or other) irregularities,"(i.e., the opportunities for the Commission and the Comptroller General to review the Secretary'srecommendations, the President's opportunity to consider procedural flaws, and Congress'sopportunity to disapprove the recommendations)
"the temporary nature of the Commission"
the fact that the Act expressly provides for judicial review regarding objectionsto base closure implementation plans under the National Environmental Policy Act of 1969 (NEPA)that are brought "within a narrow time frame," but the Act does not explicitly provide for any otherjudicial review
Importantly, whether the Supreme Court applies the rationale of the Dalton majority orJustice Souter's Dalton concurrence, the Court would likely decide not to review the BRAC actionsof the Secretary or the Commission under the APA in the 2005 round. (26) Even if the actions of the Secretary or the Commission were heldto be final agency action (which would be unlikely, given the Dalton decision), courts might considerthose agency actions to be committed to agency discretion by law -- thus making them judiciallyunreviewable. (43) According to the Court, the Base Closure Act did not limit the President's discretion in anyway. (45) Therefore, the issue of how the President chose to exercise his discretion under the Base Closure Actwas held to be judicially unreviewable. (53) However, the BaseClosure Act has not yet been held unconstitutional by any federal appellate courts.
The 2005 round of military base realignments and closures (BRAC) is now underway. TheDefense Base Closure and Realignment Act of 1990 (Base Closure Act), as amended, establishesmandatory procedures to be followed throughout the BRAC process and identifies criteria to be usedin formulating BRAC recommendations. However, judicial review is unlikely to be available toremedy alleged failures to comply with the Base Closure Act's provisions. A synopsis of the relevantlaw regarding the availability of judicial review in this context is included below:
The actions of the Secretary of Defense (Secretary) and the independent BRACCommission (Commission) are not considered to be "final agency action," and thus cannot bejudicially reviewed pursuant to the Administrative Procedure Act (APA).
Even if a court determined that the actions of the Secretary and the Commission were "final agency action," the court would likely consider the case to fall under oneof two APA exceptions to judicial review: (1) when statutes preclude judicial review or (2) whenagency action is committed to agency discretion by law.
The President's actions cannot be judicially reviewed under the APA, becausethe President is not an "agency" covered by the statute.
A claim that the President exceeded his statutory authority under the BaseClosure Act has been held to be judicially unreviewable, because the Base Closure Act gives thePresident broad discretion in approving or disapproving BRACrecommendations.
Thus, courts would likely allow the BRAC process to proceed even if the Department ofDefense, the Commission, or the President did not comply with the Base Closure Act's requirements.
This report was prepared by [author name scrubbed], Law Clerk, under the general supervision of[author name scrubbed], Legislative Attorney. It will be updated as case developments warrant.