333 U.S.

103
68 S.Ct. 431
92 L.Ed. 568

CHICAGO & SOUTHERN AIR LINES, Inc.,

v.
WATERMAN S.S. CORPORATION. CIVIL AERONAUTICS
BOARD v. SAME.
Nos. 78 and 88.
Argued Nov. 19, 1947.
Decided Feb. 9, 1948.
Mandate Conformed to April 13, 1948.

Mr. R. Emmett Kerrigan, of New Orleans, La., for petitioner Chicago &
Southern Air Lines, Inc.
Mr. Robert L. Stern, of Washington, D.C., for petitioner Civil Aeronautics
Board.
Mr. Bon Geaslin, of Washington, D.C., for respondent.
Mr. Justice JACKSON delivered the opinion of the Court.

The question of law which brings this controversy here is whether 1006 of
the Civil Aeronatics Act, 49 U.S.C. 646, 49 U.S.C.A. 646, authorizing
judicial review of described orders of the Civil Aeronautics Board, includes
those which grant or deny applications by citizen carriers to engage in overseas
and foreign air transportation which are subject to approval by the President
under 801 of the Act. 49 U.S.C. 601, 49 U.S.C.A. 601.

By proceedings not challenged as to regularity, the Board, with express

approval of the President, issued an order which denied Waterman Steamship
Corporation a certificate of convenience and necessity for an air route and
granted one to Chicago and Southern Air Lines, a rival applicant. Routes sought
by both carrier interests involved overseas air transportation, 1(21) (b), 49
U.S.C.A. 401(21)(b), between Continental United States and Caribbean
possessions and also foreign air transportation, 1(21)(c), between the United

States and foreign countries. Waterman filed a petition for review under 1006
of the Act with the Circuit Court of Appeals for the Fifth Circuit. 159 F.2d 828.
Chicago and Southern intervended. Both the latter and the Board moved to
dismiss, the grounds pertinent here being that because the order required and
had approval of the President, under 801 of the Act, it was not reviewable.
The Court of Appeals disclaimed any power to question or review either the
President's approval or his disapproval, but it regarded any Board order as
incomplete until court review, after which 'the completed action must be
approved by the President as to citizen air carriers in cases under Sec. 801.' 159
F.2d 828, 831. Accordingly, it refused to dismiss the petition and asserted
jurisdiction. Its decision conflicts with one by the Court of Appeals for the
Second Circuit. Pan American Airways, Inc., v. Civil Aeronautics Board, 21
F.2d 810. We granted certiorari both to the Chicago and Southern Air Lines,
Inc. (No. 78) and to the Board (No. 88) to resolve the conflict.
3

Congress has set up a comprehensive scheme for regulation of common carriers

by air. Many statutory provisions apply indifferently whether the carrier is a
foreign air carrier or a citizen air carrier, and whether the carriage involved is
'interstate air commerce,' 'overseas air commerce' or 'foreign air commerce,'
each being appropriately defined. 49 U.S.C. 401(20), 49 U.S.C.A. 401(20).
All air carriers by similar procedures must obtain from the Board certificates of
convenience and necessity by showing a public interest in establishment of the
route and the applicant's ability to serve it. But when a foreign carrier asks for
any permit, or a citizen carrier applies for a certificate to engage in any overseas
or foreign air transportation, a copy of the application must be transmitted to
the President before hearing; and any decision, either to grant or to deny, must
be submitted to the President before publication and is unconditionally subject
to the President's approval. Also the statute subjects to judicial review 'any
order, affirmative or negative, issued by the Board under this Act, except any
order in respect of any foreign air carrier subject to the approval of the
President as provd ed in section 801 of this Act.' It grants no express exemption
to an order such as the one before us, which concerns a citizen carrier but which
must have Presidential approval because it involves overseas and foreign air
transportation. The question is whether an exemption is to be implied.

This Court long has held that statutes which employ broad terms to confer
power of judicial review are not always to be read literally. Where Congress
has authorized review of 'any order' or used other equally inclusive terms,
courts have declined the opportunity to magnify their jurisdiction, by selfdenying constructions which do not subject to judicial control orders which,
from their nature, from the context of the Act, or from the relation of judicial
power to the subject-matter, are inappropriate for review. Examples are set

forth by Chief Justice Hughes in Federal Power Commission v. Metropolitan

Edison Co., 304 U.S. 375, 384, 58 S.Ct. 963, 967, 82 L.Ed. 1408. Cf. Rochester
Telephone Corporation v. United States, 307 U.S. 125, 130, 59 S.Ct. 754, 757,
83 L.Ed. 1147.
5

The Waterman Steamship Corporation urges that review of the problems

involved in establishing foreign air routes are of no more international delicacy
or strategic importance than those involved in routes for water carriage. It says,
'It is submitted that there is no basic difference between the conduct of the
foreign commerce of the United States by air or by sea.' From this premise it
reasons that we should interpret this statute to follow the pattern of judicial
review adopted in relation to orders affecting foreign commerce by rail, LewisSimas-Jones Co. v. Southern Pacific Co., 283 U.S. 654, 51 S.Ct. 592, 75 L.Ed.
1333; News Syndicate Co. v. New York Central R. Co., 275 U.S. 179, 48 S.Ct.
39, 72 L.Ed. 225, or communications by wire, United States v. Western Union
Telegraph Co., 2 Cir., 272 F. 893, or by radio, Mackay Radio & Telegraph Co.
v. Federal Communications Commission, 68 App.D.C. 336, 97 F.2d 641; and it
likens the subject-matter of aeronautics legislation to that of Title VI of the
Merchant Marine Act of 1936, 46 U.S.C. 1171, 46 U.S.C.A. 1171, and the
function of the Aeronautics Board in respect to overseas and foreign air
transportation to that of the Maritime Commission to such commerce when
water-borne.

We find no indication that the Congress either entertained or fostered the

narrow concept that air-borne commerce is a mere outgrowth or overgrowth of
surface-bound transport. Of course, air transportation, water transportation, rail
transportation and motor transportation all have a kinship in that all are forms
of transportation and their common features of public carriage for hire may be
amenable to kindred regulations. But these resemblances must not blind us to
the fact that legally, as well as literally, air commerce, whether at home or
abroad, soared into a different realm than any that had gone before. Ancient
doctrines of private ownership of the air as appurtenant to land titles had to be
revised to make aviation practically serviceable to our society. A way of travel
which quickly escapes the bounds of local requlative competence called for a
more penetrating, uniform and exclusive regulation by the nation than had been
thought appropriate for the more easily controlled commerce of the past. While
transport by land and by sea began before any existing government was
established and their respective customs and practices matured into bodies of
carrier law independently of legislation, air transport burst suddenly upon
modern governments, offering new advantages, demanding new rights and
carrying new threats which society could meet with timely adjustments only by
prompt invocation of legislative authority. However useful parallels with older

forms of transit may be in adjudicating private rights, we see no reason why the
efforts of the Congress to foster and regulate development of a revolutionary
commerce that operates in three dimensions should be judc ially circumscribed
with analogies taken over from two-dimentional transit.
7

The 'public interest' that enters into awards of routes for aerial carriers, who in
effect obtain also a sponsorship by our government in foreign ventures, is not
confined to adequacy of transportation service, as we have held when that term
is applied to railroads. State of Texas v. United States, 292 U.S. 522, 531, 54
S.Ct. 819, 824, 78 L.Ed. 1402. That aerial navigation routes and bases should
be prudently correlated with facilities and plans for our own national defenses
and raise new problems in conduct of foreign relations, is a fact of common
knowledge. Congressional hearings and debates extending over several sessions
and departmental studies of many years show that the legislative and
administrative processes have proceeded in full recognition of these facts.

In the regulation of commercial aeronautics, the statute confers on the Board

many powers conventional in other carrier regulation under the Congressional
commerce power. They are exercised through usual procedures and apply
settled standards with only customary administrative finality. Congress
evidently thought of the administrative function in terms used by this Court of
another of its agencies in exercising interstate commerce power: 'Such a body
cannot in any proper sense be characterized as an arm or an eye of the
executive. Its duties are performed without executive leave and, in the
contemplation of the statute, must be free from executive control.' Humphrey's
Executor v. United States, 295 U.S. 602, 628, 55 S.Ct. 869, 874, 79 L.Ed. 1611.
Those orders which do not require Presidential approval are subject to judicial
review to assure application of the standards Congress has laid down.

But when a foreign carrier seeks to engage in public carriage over the territory
or waters of this country, or any carrier seeks the sponsorship of this
Government to engage in overseas or foreign air transportation, Congress has
completely inverted the usual administrative process. Instead of acting
independently of executive control, the agency is then subordinated to it.
Instead of its order serving as a final disposition of the application, its force is
exhausted when it serves as a recommendation to the President. Instead of
being handed down to the parties as the conclusion of the administrative
process, it must be submitted to the President, before publication even can take
place. Nor is the President's control of the ultimate decision a mere right of
veto. It is not alone issuance of such authorizations that are subject to his
approval, but denial, transfer, amendment, cancellation or suspension, as well.
And likewise subject to his approval are the terms, conditions and limitations of

the order. 49 U.S.C. 601, 49 U.S.C.A. 601. Thus, Presidential control is not
limited to a negative but is a positive and detailed control over the Board's
decisions, unparalleled in the history of American administrative bodies
10

Congress may of course delegate very large grants of its power over foreign
commerce to the President. Norwegian Nitrogen Products Co. v. United States,
288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796; United States v. George S. Bush &
Co., 310 U.S. 371, 60 S.Ct. 944, 84 L.Ed. 1259. The President also possesses in
his own right certain powers conferred by the Constitution on him as
Commander-in-Chief and as the Nation's organ in foreign affairs. For present
purposes, the order draws vitality from either or both sources. Legislative and
Executive powers are pooled obviously to the end that commercial strategic and
diplomatic interests of the country may be coordinated and advanced without
collision or deadlock between agencies.

11

These considerations seem controlling on the question whether the Board's

action on overseas and foreign air transportation applications by citizens are
subject to revision or overthrow by the courts.

12

It may be conceded that a literal reading of 1006 subjects this r der to reexamination by the courts. It also appears that the language was deliberately
employed by Congress, although nothing indicates that Congress foresaw or
intended the consequences ascribed to it by the decision of the Court below.
The letter of the text might with equal consistency be construed to require any
one of three things: first, judicial review of a decision by the President; second,
judicial review of a Board order before it acquires finality through Presidential
action, the court's decision on review being a binding limitation on the
President's action; third, a judicial review before action by the President, the
latter being at liberty wholly to disregard the court's judgment. We think none
of these results is required by usual canons of construction.

13

In this case, submission of the Board's decision was made to the President, who
disapproved certain portions of it and advised the Board of the changes which
he required. The Board complied and submitted a revised order and opinion
which the President approved. Only then were they made public, and that
which was made public and which is before us is only the final order and
opinion containing the President's amendments and bearing his approval. Only
at that stage was review sought, and only then could it be pursued, for then
only was the decision consummated, announced and available to the parties.

14

While the changes amde at direction of the President may be identified, the

reasons therefor are not disclosed beyond the statement that 'because of certain
factors relating to our broad national welfare and other matters for which the
Chief Executive has special responsibility, he has reached conclusions which
require' changes in the Board's opinion.
15

The court below considered, and we think quite rightly, that it could not review
such provisions of the order as resulted from Presidential direction. The
President, both as Commander-in-Chief and as the Nation's organ for foreign
affairs, has available intelligence services whose reports neither are nor ought to
be published to the world. It would be intolerable that courts, without the
relevant information, should review and perhaps nullify actions of the
Executive taken on information properly held secret. Nor can courts sit in
camera in order to be taken into executive confidences. But even if courts could
require full disclosure, the very nature of executive decisions as to foreign
policy is political, not judicial. Such decisions are wholly confided by our
Constitution to the political departments of the government, Executive and
Legislative. They are delicate, complex, and involve large elements of
prophecy. They are and should be undertaken only by those directly
responsible to the people whose welfare they advance or imperil. They are
decisions of a kind for which the Judiciary has neither aptitude, facilities nor
responsibility and have long been held to belong in the domain of political
power not subject to judicial intrusion or inquiry. Coleman v. Miller, 307 U.S.
433, 454, 59 S.Ct. 972, 982, 83 L.Ed. 1385, 122 A.L.R. 695; United States v.
Curtiss-Wright Corporation, 299 U.S. 304, 319321, 57 S.Ct. 216, 220, 221,
81 L.Ed. 255; Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309,
310, 62 L.Ed. 726. We therefore agree that whatever of this order emanates
from the President is not susceptible of review by the Judicial Department.

16

The court below thought that this disability could be overcome by regarding the
Board as a regulatory agent of Congress to pass on such matters as the fitness,
willingness and ability of the applicant, and that the Board's own determination
of these matters is subject to review. The court, speaking of the Board's action,
said (159 F.2d 831): 'It is not final till the Board and the court have completed
their functions. Thereafter the completed action must be approved by the
President as to citizen air carriers in cases under Sec. 801.' The legal
incongruity of interposing judicial reviw between the action by the Board and
that by the President are as great as the practical disadvantages. The latter arise
chiefly from the inevitable delay and obstruction in the midst of the
administrative proceedings. The former arises from the fact that until the
President acts there is no final administrative determination to review. The
statute would hardly have forbidden publication before submission if it had
contemplated interposition of the courts at this intermediate stage. Nor could it

have expected the courts to stay the President's hand after submission while
they deliberate on the inchoate determination. The difficulty is manifest in this
case. Review could not be sought until the order was made available, and at
that time it had ceased to be merely the Board's tentative decision and had
become one finalized by Presidential discretion.
17

Until the decision of the Board has Presidential approval, it grants no privilege
and denies no right. It can give nothing and can take nothing away from the
applicant or a competitor. It may be a step, which if erroneous will mature into
a prejudicial result, as an order fixing valuations in a rate proceeding may
foreshow and compel a prejudicial rate order. But administrative orders are not
reviewable unless and until they impose an obligation, deny a right or fix some
legal relationship as a consummation of the administrative process. United
States v. Los Angeles & Salt Lake R. Co., 273 U.S. 299, 47 S.Ct. 413, 71 L.Ed.
651; United States v. Illinois Central R. Co., 244 U.S. 82, 37 S.Ct. 584, 61
L.Ed. 1007; Rochester Telephone Corporation v. United States, 307 U.S. 125,
131, 59 S.Ct. 754, 757, 83 L.Ed. 1147. The dilemma faced by those who
demand judicial review of the Board's order is that, before Presidential
approval, it is not a final determination even of the Board's ultimate action, and
after Presidential approval, the whole order, both in what is approved without
change, as well as in amendments which he directs, derives its vitality from the
exercise of unreviewable Presidential discretion.

18

The court below considered that after it reviewed the Board's order, its
judgment would be submitted to the President, that his power to disapprove
would apply after as well as before the court acts, and hence that there would
be no chance of a deadlock and no conflict of function. But if the President may
completely disregard the judgment of the court, it would be only because it is
one the courts were not authorized to render. Judgments, within the powers
vested in courts by the Judiciary Article of the Constitution, may not lawfully
be revised, overturned or refused faith and credit by another Department of
Government.

19

To revise or review an administrative decision, which has only the force of a

recommendation to the President, would be to render an advisory opinion in its
most obnoxious formadvice that the President has not asked, tendered at the
demand of a private litigant, on a subject concededly within the President's
exclusive, ultimate control. This Court early and wisely determined that it
would not give advisory opinions even when asked by the Chief Executive. It
has also been the firm and unvarying practice of Constitutional Courts to render
no judgments not binding and conclusive on the parties and none that are
subject to later review or alteration by administrative action. Hayburn's Case, 2

Dall. 409, 1 L.Ed. 436; United States v. Ferreira, 13 How. 40, 14 L.Ed. 42;
Gordon v. United States, 117 U.S 697; In re Sanborn, 148 U.S. 222, 13 S.Ct.
577, 37 L.Ed. 429; Interstate Commerce Commission v. Brimson, 154 U.S.
447, 14 S.Ct. 1125, 38 L.Ed. 1047; La Abra Silver Mining Co. v. United States,
175 U.S. 423, 20 S.Ct. 168, 44 L.Ed. 223; Muskrat v. United States, 219 U.S.
346, 31 S.Ct. 250, 55 L.Ed. 246; United States v. Jefferson Electric Mfg. Co.,
291 U.S. 386, 54 S.Ct. 443, 78 L.Ed. 859.
20

We conclude that orders of the Board as to certificate for overseas or foreign air
transportatin are not mature and are therefore not susceptible to judicial review
at anytime before they are finalized by Presidential approval. After such
approval has been given, the final orders embody Presidential discretion as to
political matters beyond the competence of the courts to adjudicate. This makes
it unnecessary to examine the other questions raised. The petition of the
Waterman Steamship Corp. should be dismissed.

21

Judgment reversed.

22

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK, Mr. Justice REED
and Mr. Justice RUTLEDGE concur, dissenting.

23

Congress has specifically provided for judicial review of orders of the Civil
Aeronautics Board of the kind involved in this case. That review can be had
without intruding on the exclusive domain of the Chief Executive. And by
granting it we give effect to the interests of both the Congress and the Chief
Executive in this field.

24

The Commerce Clause of the Constitution grants Congress control over

interstate and foreign commerce. Art. I, 8. The present Act is an exercise of
that power. Congress created the Board and defined its functions. It specified
the standards which the Board is to apply in granting certificates for overseas
and foreign air transportation.1 It expressly made subject to judicial review
orders of the Board granting or denying certificates to citizens and withheld
judicial review where the applicants are not citizens.2 If this were all, there
would be no question.

25

But Congress did not leave the matter entirely to the Board. Recognizing the
important role the President plays in military and foreign affairs, it made him a
participant in the process. Applications for certificates of the type involved here
are transmitted to him before hearing, all decisions on the applications are
submitted to him before their publication, and the orders are 'subject to' his

approval.3 Since his decisions in these matters are of a character which involve
an exercise of his discretion in foreign affairs or military matters, I do not think
Congress intended them to be subject to judicial review.
26

But review of the President's action does not result from reading the statute in
the way it is written. Congress made reviewable by the courts only orders
'issued by the Board under this Act.'4 Those orders can be reviewed without
reference to any conduct of the President, for that part of the orders which is
the work of the Board is plainly identifiable.5 The President is presumably
concerned only with the impact of the order on foreign relations or military
matters. To the extent that he disapproves action taken by the Board, his action
controls. But where that is not done, the Board' order has an existence
independent of Presidential approval, tracing to Congress' power to regulate
commerce. Approval by the President under this statutory scheme has relevance
for purposes of review only as indicating when the action of the Board is
reviewable. When the Board has finished with the order, the administrative
function is ended. When the order fixes rights, on clearance by the President, it
becomes reviewable. But the action of the President does not broaden the
review. Review is restricted to the action of the Board and the Board alone.

27

The statute, as I construe it, contemplates that certificates issued will rest on
orders of the Board which satisfy the standards prescribed by Congress.
Presidential approval cannot make valid invalid orders of the Board. His
approval supplements rather than supersedes Board action. Only when the
Board has acted within the limits of its authority has the basis been laid for
issuance of certificates. The requirement that a valid Board order underlie each
certificate thus protects the President as well as the litigants and the public
interest against unlawful Board action.

28

The importance of the problem is evidenced by the character of cases

controlled by this decision. The present ruling is not limited to cases granting or
denying certificates for air transportation to and from foreign countries. It also
denies power to review orders governing air transportation between two points
in Alaska, between two points in Hawaii, between Seattle and Juneau, between
New Orleans and San Juan.6 All of those are now beyond judicial review. And
so they should be so far as conduct of the President is concerned. But Congress
has commanded otherwise as to action by the Board. The Board can act in a
lawless way. With that in mind, Congress sought to preserve the integrity of the
administrative process by making judicial review a check on Board action. That
was the aim of Congress, now defeated by a legalism which in my view does
not square with reality.

29

In this petition for review, the respondent charged that the Board had no
substantial evidence to support its findings that Chicago and Southern Air Lines
was fit, willing and able to perform its obligations under the certificate; and it
charged that when a change of conditions as to Chicago and Southern Air Lines'
ability to perform was called to the attention of the Board, the Board refused to
reopen the case. I do not know whether there is merit in those contentions. But
no matter how substantial and important the questions, they are now beyond
judicial review. Today a litigant tenders questions concerning the arbitrary
character of the Board's ruling. Tomorrow those questions may relate to the
right to notice, adequacy of hearings, or the lack of procedural due process of
law. But no matter how extreme the action of the Board, the courts are
powerless to correct it under today's decision. Thus the purpose of Congress is
frustrated.

30

Judicial review would assure the President, th litigants and the public that the
Board had acted within the limits of its authority. It would carry out the aim of
Congress to guard against administrative action which exceeds the statutory
bounds. It would give effect to the interests of both Congress and the President
in this field.

See 401, 408(b), 52 Stat. 987, 1001, 49 U.S.C. 481, 488, 49 U.S.C.A.
481, 488.

Section 1006(a) provides in part: 'Any order, affirmative or negative, issued by

the Board under this Act, except any order in respect of any foreign air carrier
subject to the approval of the President as provided in section 801 of this Act,
shall be subject to review by the circuit courts of appeals of the United States or
the United States Court of Appeals for the District of Columbia upon petition,
filed within sixty days after the entry of such order, by any person disclosing a
substantial interest in such order.' 52 Stat. 1024, 54 Stat. 1235, 49 U.S.C.
646(a), 49 U.S.C.A. 646(a).
Section 401(a) requires every air carrier to have a certificate before engaging in
air transportation. 52 Stat. 987, 49 U.S.C. 481(a), 49 U.S.C.A. 481(a).
There is the same requirement in case of a foreign air carrier. 402(a), 52 Stat.
991, 49 U.S.C. 482(a), 49 U.S.C.A. 482(a). An air carrier is defined as a
citizen ( 1(2), 52 Stat. 977, 49 U.S.C. 401(2), 49 U.S.C.A. 401(2)), and a
foreign air carrier as any person not a citizen, and engaged in foreign air
transportation. 1(19), 52 Stat. 978, 49 U.S.C. 401(19), 49 U.S.C.A.
401(19).

801. 52 Stat. 1014, 49 U.S.C. 601, 49 U.S.C.A. 601.

1006(a), supra, note 2.

The Board had consolidated for hearing 29 applications for certificates to

engage in air transportation which were filed by 15 applicants. The President's
partial disapproval of the proposed disposition of these applications did not
relate to the applications involved in this case. As to them, the action of the
Board stands unaltered.

By 801 the approval of the President extends to orders 'authorizing an air

carrier to engage in overseas or foreign air transportation, or air transportation
between places in the same Territory or possession.' 52 Stat. 1014, 49 U.S.C.
601, 49 U.S.C.A. 601. Section 1(21) includes in overseas air transportation
commerce between a place in the continental United States and a place in a
Territory or possession of the United States, or between a place in a Territory or
possession of the United States and a place in any other Territory or possession.
52 Stat. 979, 49 U.S.C. 401(21), 49 U.S.C.A. 401(21).