The opinion of the court was delivered by: HOGAN
THOMAS F. HOGAN, UNITED STATES DISTRICT JUDGE
The Court's memorandum opinion and order of September 23, 1986 denied plaintiffs' application for preliminary injunction herein, and granted defendants' motion to dismiss the complaint except as to the issue of the procedural validity of Executive Order No. 12,559. This case is now before the Court on cross-motions for summary judgment on the remaining issue. After careful consideration of the motions, opposition, reply, supporting memoranda and the entire record, the Court concludes that summary judgment should be entered in plaintiffs' favor.
The circumstances of this case are fully set forth in the Court's findings of fact issued September 23, 1986, and are incorporated by reference herein. In brief, this action concerns the President's implementation of his authority to exclude federal agencies or their subdivisions from the Federal Labor-Management Relations Act, 5 U.S.C. § 7101 et seq. ("FLMRA") in Executive Order No. 12,559. 51 F. Reg. 18,769 (May 20, 1986). Section 7103(b)(1) of the FLMRA grants this authority, to be exercised only if the President has determined that the excluded agency or subdivision has as a primary function intelligence, counter-intelligence, investigative, or national security work, and that the FLMRA cannot be applied to that agency consistently with national security. 5 U.S.C. § 7103(b)(1). President Carter was the first to exercise this power, in Executive Order No. 12,171 in 1979. Exec. Order No. 12,171, 44 F. Reg. 66,565, reprinted in 5 U.S.C. § 7103 app. (L. Ed. Supp. 1987). Section 1-101 of Executive Order No. 12,171 set forth the President's determinations, tracking the language of Section 7103(b).
President Reagan issued Executive Order No. 12,559 on May 20, 1986, to amend Executive Order No. 12,171 by excluding additional agency subdivisions.
One such subdivision is the U.S. Marshals Enforcement Division, represented by plaintiffs herein. Executive Order No. 12,559 provides in relevant part:
By the authority vested in me as President by the Constitution and statutes of the United States of America, including Section 7103(b) of Title 5 of the United States Code, and in order to exempt certain agencies or subdivisions thereof from coverage of the Federal Labor-Management Relations Program, it is hereby ordered as follows: Executive Order No. 12,171, as amended, is further amended by deleting Section 1-209 and inserting in its place [new Section 1-209].
This Order does not, on its face, contain the determination required as a predicate to valid action under section 7103(b). The only issue before the Court is whether the absence of this determination invalidates the Executive Order.
Under Fed. R. Civ. P. 56, the Court may enter summary judgment only when there are no material facts in dispute, and the movant demonstrates that it is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The facts of this case, so far as relevant to the remaining issue, are not disputed. The validity of the Executive Order is a question of law, and is thus properly before the Court for resolution. The Court raised this issue sua sponte at the hearing on the original motions, and heard argument from the parties at that time. The parties were given additional time to brief the issue, in order that their views could be thoroughly documented. The memoranda submitted set forth the relative positions, but do little to mitigate the Court's concern over the propriety of this particular Executive Order. Review of what little authority exists impels the Court to conclude that Executive Order No. 12,559 is not a valid exercise of authority under section 7103(b), as it is not accompanied by any determination that the necessary preconditions exist.
A. Review of Executive Orders
Unlike legislative or administrative action, few principles guide review of executive action. Without question, precedent has not drafted a blueprint for the review sought here. Justice Jackson commented over thirty years ago upon "the poverty of really useful and unambiguous authority applicable to concrete problems of executive power as they actually present themselves." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 592, 96 L. Ed. 1153, 72 S. Ct. 863 (1952) (Jackson, J., concurring). The field has not been enriched substantially, but certain broad principles have emerged. The Court's principal task, as Justice Jackson explained, is to measure the President's action against the authority under which it is taken. Id. at 635-38. Thus, the Court must determine the source of authority for the action, and the action's compliance with any limitations that may accompany the authority. Id. See also Panama Refining Co. v. Ryan, 293 U.S. 388, 431-33, 79 L. Ed. 446, 55 S. Ct. 241 (1935). As the Court found in its earlier ruling, the first step in the analysis is simplified here by President Reagan's express reliance on section 7103(b). Under Panama Refining, the validity of Executive Order 12,559 must be measured against the express conditions the statute sets forth. Panama Refining, 293 U.S. at 431.
Defendants assail the suggestion that this type of review is available. Initially, they contend that as Panama Refining addresses the constitutionality of a legislative delegation of power to the executive, 293 U.S. at 388, it neither requires nor supports review of this executive action, which was taken pursuant to an unchallenged legislative delegation. The Supreme Court's analysis in Panama Refining, however, addresses the validity of the President's action as well as the constitutionality of the delegation. The Court stated that even if the statute had properly accompanied the delegation with limiting conditions, "it would still be necessary for the President to comply with those conditions and to show that compliance as the ground of his [action]." Panama Refining, 293 U.S. at 431-32. This result is the necessary adjunct to the delegation doctrine, and implicates similar separation of powers concerns. The statutory conditions are the sine qua non of a constitutional legislative delegation. If the President could act without any indication that the statutory preconditions to his power exist, the nexus of his action to a constitutional grant of authority would dissolve. Id.
The Court emphasizes that its concern is brought forth by the specific circumstances of this case. The President expressly attached his action to one constitutional foundation - the power lawfully delegated by Congress in § 7103(b). In distinction to Youngstown Sheet & Tube, which implicated the President's wartime powers, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 and to Dames & Moore v. Regan, 453 U.S. 654, 69 L. Ed. 2d 918, 101 S. Ct. 2972 (1981), which involved issues of foreign relations, Executive Order No. 12,559 does not involve executive action in an arena otherwise committed to the President by the Constitution.
Thus, while defendants correctly point to such cases ...