486 U. S. 592
June 15, 1988
The Director of the CIA fired an employee upon finding that his homosexuality was a danger to the agency. The employee charged that this both violated the Administrative Procedure Act (APA), and a grab bag of Constitutional protections. The CIA argued that the statutes governing the CIA gave the director full, and unreviewable discretion to dismiss employees when he finds cause.
The Court ruled 8-0 that the firing could not be challenged on APA grounds, but held 6-2 that a Constitutional challenge could at least be entertained (Kennedy did not participate). Rehnquist said that for an APA challenge to firings, the laws and regulations relevant to the agency need to have some meaningful standards. The CIA, by its governing statutes and policies, really did seem to give the Director practically unreviewable discretion in personnel decisions. Rehnquist did not think the governing statute clearly preempted Constitutional challenges though. A remand would be necessary to get the record developed further on just what the exact Constitutional issues were.
O’Connor dissented from the Constitutional portion. She felt that the CIA’s business was too top secret for a Constitutional challenge to a firing to be appropriate. Scalia concurred in judgment on the APA portion, but he thought the majority set the bar too high in how few governing policies there needed to be before the Court would accept unreviewable agency discretion. He strongly dissented about the Constitutional portion. There was no statutory evidence that the Director’s unbounded discretion was to exclude Constitutional issues. Indeed, Scalia claimed the right to Constitutional challenges should not be lightly presumed. The decision could open Pandora’s box on a number of fronts – would it mean that the president could not dismiss a cabinet member because he disliked the cabinet member’s religion?
While I’m not too upset about the ruling, Scalia is definitely more tightly reasoned about the Constitutional issue. I also enjoyed a digression of his, where he debunked the notion that Constitutional safeguards are necessarily more important or sacred to a person than other safeguards. “A citizen would much rather have his statutory entitlement correctly acknowledged after a constitutionally inadequate hearing, than have it incorrectly denied after a proceeding that fulfills all the requirements of the Due Process Clause.” This is a great, and usually unappreciated point. The legal system does care about stupid procedures in the Bill of Rights far more than actual injustices.