ADMINISTRATIVE LAW - A CIVIL AERONAUTICS BOARD ORDER APPROVED BY THE PRESIDENT WHICH AWARDS A CERTIFICATE FOR FOREIGN AIR TRANSPORTATION TO A DOMESTIC AIR CARRIER IS NOT SUBJECT TO JUDICIAL REVIEW ON THE MERITS -- BRANIFF AIRWAYS, INC V. CIVIL AERONAUTICS BOARD, NO. 76-2043. (D.C. CIR. JULY 10, 1978).

The article notes that the Braniff court found constitutional considerations which greatly outweighed any potential harm that the private parties involved might incur from the court's refusal to hear the case. In holding that the Waterman doctrine retained its vitality and precluded review where petitioners sought to challenge the merits of a CAB order which had been approved by the President, the court demonstrated an acute awareness that it must respect jurisdictional limitations to insure that our governmental structure remains intact. The court rejected the contention that the President's disclaimer removed the Waterman ban and concluded that the CAB order was not subject to judicial review for two reasons: First, the President cannot, in light of the constitutional separation of powers, confer jurisdiction on the courts; second, it was constitutionally impermissible for the court to reach a decision since any opinion rendered would have been purely advisory in nature. The court's analysis illustrates its adherence to the principle that "by the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose encroachment on either." Accordingly, in Braniff, the United States Court of Appeals for the District of Columbia Circuit exercised self-restraint and refused to accept jurisdiction allegedly conferred upon it by the executive branch in order to preserve the integrity of the constitutional system of government predicated upon the separation of powers.

  • Corporate Authors:

    Temple University School of Law

    1715 North Broad Street
    Philadelphia, PA  USA  19122
  • Authors:
    • Pearlstein, A M
  • Publication Date: 1979

Media Info

  • Pagination: p. 155-169
  • Serial:

Subject/Index Terms

Filing Info

  • Accession Number: 00196513
  • Record Type: Publication
  • Files: TRIS
  • Created Date: Aug 28 1979 12:00AM