The Supreme Court has enabled a dramatic expansion of executive power during the first nine months of the Trump Administration.  Much of this has occurred with minimal or no explanation on the emergency docket, allowing the Administration to proceed without any consideration, much less a determination, of whether the challenged, ongoing activity is lawful.  Examples abound, with additions nearly every week.

The D.C. Circuit recently established another powerful tool to expand executive power:  Interpreting Dalton v. Specter, 511 U.S. 462 (1994), anew to preclude separation-of-powers claims.  Dalton involved a challenge to President George H.W. Bush’s decision to close a naval base, and the outcome turned in part on the statute’s broad grant of discretion to the President (not to an agency).  In those circumstances, the Court concluded that the plaintiffs could not pursue a parallel constitutional claim to avoid statutory barriers.  Importantly, the Court stopped well short of concluding that presidential actions lacking in statutory authority could never violate the Constitution or that the mere existence of some colorable statutory authority precluded all separation-of-powers claims.

Courts relegated Dalton to relative obscurity for three decades, reading it narrowly even when invoked.  In the past two months, however, three D.C. Circuit motions panels have expanded Dalton to preclude constitutional separation-of-powers claims where the plaintiffs also allege (or could have alleged) that the Executive Branch has exceeded statutorily delegated discretionary authority.  As explained below, this interpretation is unmoored from the Supreme Court and D.C. Circuit’s historical treatment of Dalton, misreads Justice Robert Jackson’s tripartite approach in his concurrence in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), and has allowed seemingly unlawful Executive Branch activity to continue, notwithstanding that, in many instances, the Administration barely contests the legality.  As Judge Pan observed in a dissent:  “The Dalton Court would have been astonished at the panel’s application of that case to preclude the [plaintiff]s’ separation-of-powers claim.”  Glob. Health Council v. Trump, No. 25-5097, 2025 U.S. App. LEXIS 22294, at *13 (D.C. Cir. Aug. 28, 2025). 

If this new interpretation stands, the Executive Branch can continue to avoid judicial review of separation-of-powers claims in the D.C. Circuit simply by pointing to some statutory delegation of discretionary authority for its actions, no matter how attenuated, and arguing that any alleged exceedance of that authority falls within Dalton’s parameters, notwithstanding the apparent lawlessness of the action.  Accordingly, the D.C. Circuit’s opportunity to correct its Dalton interpretation in response to pending petitions for rehearing en banc has great significance, whether the en banc court reverses course or narrows its current reading.  Either way, the court should clarify what, if any, path forward remains for separation-of-powers claims based on allegations that Executive Branch actions lack a basis in statutory authority.

Dalton’s Holding and Thirty-Plus Years of Relative Obscurity

Decided two years after the Supreme Court concluded that the Administrative Procedure Act (APA) did not apply to the President in Franklin v. Massachusetts, 505 U.S. 788 (1992), Dalton considered the justiciability of congressional members’ claims seeking to enjoin the Secretaries of the Navy and Defense from carrying out the President’s decision to close the Philadelphia Naval Shipyard pursuant to the Defense Base Closure and Realignment Act of 1990 (BRAC).  BRAC called for closure of military bases in accordance with a list drawn up by subordinate federal officials and subject to the President’s approval, and the Dalton plaintiffs alleged that the President violated BRAC and the Constitution “by accepting procedurally flawed recommendations.”  Dalton, 511 U.S. at 474.  The Court held that:  (1) the APA did not allow a claim against the Secretaries because the final action at issue was the President’s approval determination, and, consistent with Franklin, the APA does not apply to the President; (2) the plaintiffs’ constitutional claim was merely a claim that the President had violated BRAC; and (3) even if the action were reviewable, BRAC delegated unbounded discretionary authority directly to the President, rendering the Court unable to conclude that the President had exceeded his exercise of discretion.  Id. at 472–77. 

The Court cautioned that “[o]ur cases do not support the proposition that every action by the President, or by another executive official, in excess of his statutory authority is ipso facto in violation of the Constitution.”  Id. at 472.  Yet the Court conceded that it had recognized constitutional claims where the President “act[s] in violation of the Constitution,” including an exercise of power not statutorily delegated to the President.  Id. at 473–74; see also Franklin, 505 U.S. at 801 (concluding that the “President’s actions may still be reviewed for constitutionality” (citing Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), and Panama Refining Co. v. Ryan, 293 U.S. 388 (1935)).  In such cases, there is “a want of [Presidential] power,” as opposed to “a mere excess or abuse of discretion in exerting a power given.”  Dalton, 511 U.S. at 474 (quoting Dakota Cent. Tel. Co. v. South Dakota ex rel. Payne, 250 U.S. 163, 184 (1919)) (alteration in Dakota Central) (emphasis added).  The Court’s linchpin was that BRAC did not limit the President’s discretion “at all.”  Dalton, 511 U.S. at 476; see also id. at 477 (“Where a statute[] . . . commits decisionmaking to the discretion of the President, judicial review of the President’s decision is not available.”).  Thus, where Congress has delegated only limited discretion or the Executive Branch acts in defiance of a congressional command or without statutory authority, Dalton is (or should be) inapposite.[1]

Dalton flew under the radar for three decades, especially as a limitation on judicial review of separation-of-powers claims.  The Supreme Court has cited it twice.  In Bennett v. Spear, the Court discussed Franklin and Dalton as distinguishable from the agency action at issue, which the Court concluded was sufficiently final to allow for APA review.  520 U.S. 154, 178 (1997) (“[O]ur holding [in Dalton] that this was not ‘final agency action’ followed from the fact that the recommendations were in no way binding on the President, who had absolute discretion to accept or reject them.” (citations omitted)).  The next year, Justice Breyer cited Dalton in his dissent in Clinton v. City of New York, arguing that “this Court has made clear that judicial review is less appropriate when the President’s own discretion, rather than that of an agency, is at stake.”  524 U.S. 417, 490 (1998) (citations omitted).  The majority disagreed, striking down the Line Item Veto Act and reaffirming the bedrock principle that the Constitution does not permit “the President to enact, to amend, or to repeal statutes.”  Id. at 438. 

The D.C. Circuit cited Dalton eleven times prior to January 2025, with three significant cases reading Dalton as declining to consider whether the President had abused his congressionally delegated discretion only because the statutes at issue placed no limit on that discretion.  Am. Forest Res. Council v. United States, 77 F.4th 787, 797 (D.C. Cir. 2023), cert. denied, 144 S. Ct. 1110 (2024); Mt. States Legal Found. v. Bush, 306 F.3d 1132, 1136 (D.C. Cir. 2002); Chamber of Com. v. Reich, 74 F.3d 1322, 1331–32 (D.C. Cir. 1996).  Relatedly, then-Judge Kavanaugh concluded that, “where previously appropriated money is available for an agency to perform a statutorily mandated activity, we see no basis for a court to excuse the agency from that statutory mandate” based on the “settled, bedrock principle[]” that “the President may not decline to follow a statutory mandate or prohibition simply because of policy objections.”  In re Aiken Cnty., 725 F.3d 255, 259–60 (D.C. Cir. 2013).  

The D.C. Circuit’s New Dalton Interpretation Limits Review of Executive Branch Actions in District Court and Allows the Executive Branch to Continue Allegedly Unlawful Activity

Global Health Council v. Trump

The D.C. Circuit’s Dalton expansion started in August 2025 in Global Health Council v. Trump.[2]  In January 2025, President Trump directed that executive agencies pause disbursement of duly appropriated foreign aid funds, Exec. Order No. 14169, 90 Fed. Reg. 8619, as part of the Administration’s effort to, in the President’s words, “effectively eliminate[]” a statutorily created and funded agency, the U.S. Agency for International Development, Remarks and a Question-and-Answer Session at the Future Investment Initiative Priority Summit in Miami Beach, Florida, 2025 Daily Comp. Pres. Doc. 280 (Feb. 19, 2025).  The U.S. District Court for the District of Columbia found that the Administration had no intention of spending the impounded funds and concluded that the attempted impoundments constituted a separation-of-powers violation because the President sought to “negate congressional . . . policies.”  AIDS Vaccine Advoc. Coal. v. U.S. Dep’t of State, 770 F. Supp. 3d 121, 144–45, 148 (D.D.C. 2025) (internal quotation marks omitted).

On August 13, 2025, Judges Henderson and Katsas vacated the district court’s injunction, with Judge Pan dissenting.  The panel did not repudiate the district court’s factual findings that the Administration neither intended to spend the appropriated funds nor had satisfied the conditions precedent for rescission or deferral of the appropriations under the Impoundment Control Act.  The panel also did not question the district court’s legal conclusion that withholding appropriations likely violated the separation of powers.  The panel majority nevertheless made three holdings that, in effect, left the plaintiffs with no avenue for relief for what appeared to be unlawful impoundments of congressionally appropriated funds. 

Among these was a conclusion that Dalton foreclosed the plaintiffs’ separation-of-powers claim because of the statutory claim asserted (but not adjudicated) below, i.e., that unilateral impoundments were not permitted by the relevant statutes.  Op. at 16–30.  As one amicus brief later explained, the panel majority misread Dalton’s holding that “all executive actions in excess of statutory authority” are not “ipso facto unconstitutional,” Dalton, 511 U.S. at 472, “to mean that no executive action in excess of statutory authority is ever unconstitutional.”  The majority justified its outcome based on its concern that “plaintiffs would otherwise be able to avoid statutory limits on review by reframing any alleged statutory violation by the President as a constitutional one,” Op. at 18, despite three decades of Dalton not being applied to counter such concerns.  They attempted to distinguish, among other authority, the Supreme Court’s opinion in Youngstown as relevant only where there is a total “absence of any statutory authority, not a claim that the President acted in excess of such authority,” id. at 19 (citing Youngstown, 511 U.S. at 473), neglecting Justice Jackson’s contemplation of separation-of-powers claims against the backdrop of asserted statutory authority in Youngstown.  The panel majority also sought to distinguish, with minimal explanation, the D.C. Circuit’s decision in Aiken County as “involv[ing] a writ of mandamus under the APA to compel federal officers to perform a statutory duty unreasonably withheld rather than a constitutional cause of action,” and Reich as involving a “presidential action . . .  not even contemplated by Congress.”  Id. at 22–23 (citations and internal quotation marks omitted).

In dissent, Judge Pan concluded that Dalton did not foreclose the plaintiffs’ constitutional claims because “the Supreme Court and our court have stated in no uncertain terms that the Executive, as a constitutional matter, has no authority to disobey duly enacted statutes for policy reasons.”  Dissent at 3 (citations omitted); see also id. at 37 (“[T]he crux of the separation-of-powers problem is the President’s refusal to comply with the [Further Consolidated] Appropriations Act [of 2024] for policy reasons—that was an impingement on Congress’s authority under the Spending Clause and the Appropriations Clause, and also violated the Take Care Clause.”).  Judge Pan explained in detail why the panel’s reading of Dalton was out of step with, among other cases, Youngstown, Aiken County, Kendall v. United States ex rel. Stokes, 37 U.S. (12 Pet.) 524 (1838), and Dalton itself, and how the majority created a split with the Ninth Circuit’s reading of Dalton in Murphy Co. v. Biden, 65 F.4th 1122 (9th Cir. 2023), cert. denied, 144 S. Ct. 1111 (2024).  Dissent at 29–37.[3]  The D.C. Circuit denied petitions for rehearing en banc on August 28, 2025, with multiple judges taking the unusual step of expressing a desire to revisit the panel’s Dalton holding.  Glob. Health Council, 2025 U.S. App. LEXIS 22294, at *11–19.[4] 

Until the en banc D.C. Circuit further addresses Dalton, the Global Health panel’s interpretation in its amended opinion, which is scheduled for publication, appears to be controlling precedent in the D.C. Circuit.  The interpretation forecloses separation-of-powers claims whenever the Executive Branch argues that such a claim amounts to an allegation that the Executive Branch has exceeded its discretionary authority as delegated in a statute, no matter how blatantly the Executive Branch is exceeding that authority or how obviously it lacks authority to defy a congressional command.  When considered alongside the Supreme Court’s recent emergency docket orders and requirements for nonstatutory ultra vires claims,[5] the Global Health panel’s Dalton interpretation hammers home the nail in the coffin for most challenges to Executive Branch actions lacking statutory authority in the U.S. District Court for the District of Columbia and other district courts that treat Global Health as persuasive authority.

National Treasury Employees Union v. Vought

In National Treasury Emps. Union v. Vought (NTEU), Judges Katsas and Rao vacated a district-court injunction, concluding that Dalton foreclosed the plaintiffs’ claim that the Administration’s attempt to shut down the Consumer Financial Protection Bureau (CFPB) violated the separation of powers.  149 F.4th 762, No. 25 5091, 2025 U.S. App. LEXIS 20863, at *55–61 (D.C. Cir. Aug. 15, 2025).  The panel majority identified the two-day-old opinion in Global Health as controlling and distinguished the at-issue action in Youngstown as “entirely constitutional” and therefore inapplicable because the Administration had not invoked any constitutional authority.  Id. at 58 n.10, 60; see also id. at 53–55, 60 (concluding that the separation-of-powers claim constitutes an ultra vires claim but that such a claim is also foreclosed). 

In dissent, Judge Pillard distinguished Dalton as applying only where the Executive Branch acts “in ‘excess’ of a specific statutory authority,” as opposed to “without any statutory authorization whatsoever,” which is how she viewed the attempt to shut down the CFPB, and concluded that Youngstown should have controlled the outcome.  Id. at 137–42; see also id. at 140 (“Nowhere, before the district court or on appeal, have Defendants identified any statutory or constitutional authority that permits them to shut down the CFPB.  Nor have they disputed that unilaterally abolishing the Bureau would ‘amount[] to lawmaking, a legislative function which the Constitution has expressly confided to the Congress and not to the President.’” (quoting Youngstown, 343 U.S. at 582) (alteration in NTEU)). 

On September 29, 2025, the NTEU plaintiffs filed for rehearing en banc, including argument on the panel’s reading of Dalton.

Climate United Fund v. Citibank, N.A.

Citing Global Health and NTEU, Judges Katsas and Rao concluded in Climate United Fund v. Citibank, N.A., that Dalton foreclosed the plaintiffs’ separation-of-powers claim against the Environmental Protection Agency’s (EPA’s) termination of already-awarded grants because the claim required a determination that EPA violated the Inflation Reduction Act of 2022 (IRA).  __ F.4th __, No. 25-5122, 2025 U.S. App. LEXIS 22532, at *24–30 (D.C. Cir. Sep. 2, 2025).  In vacating the district court’s injunction, the panel rejected the lower court’s finding that EPA had no intention of recommitting the funds, while seeming to concede that a failure to recommit the funds would, in fact, violate the IRA.  See id. at *30 (“EPA’s actions here are well within the Executive Branch’s authority and responsibility to manage the expenditure of funds and to ensure that money appropriated by Congress is properly spent for its intended purposes.” (emphasis added)). 

Judge Pillard dissented, arguing that the majority’s separation-of-powers conclusion was squarely in conflict with Aiken County.  Id. at *89–98.  She concluded that “EPA’s violations of law are so clear that the agency hardly contests them.”  Id. at *66.  Judge Pillard noted that:  (1) the record was devoid of any indication, beyond mere statements, of EPA taking steps to satisfy the conditions precedent that might allow for recommitment of the grants under the IRA, which multiple authorities indicated was not even possible; and (2) EPA had admitted that “its termination decision ‘reflected no more than a decision based on reasons of policy,’ not anything to do with Plaintiffs’ ‘noncompliance’ or ‘conduct.’”  Id. at *60, *92–98 (citations omitted). 

The Climate United plaintiffs filed petitions for rehearing en banc that include challenges to the panel’s Dalton-based holding on September 10, 2025, which remain pending.

If Left Unchecked, the D.C. Circuit’s Unprecedented Dalton Interpretation Will Have Significant Consequences

The three panel opinions have staggering implications for the D.C. Circuit’s jurisprudence.  They distort the Supreme Court’s narrow holding in Dalton and its three decades of obscurity, create a split with other circuits, misread Justice Jackson’s concurring opinion in Youngstown, and allow the Executive Branch to evade constitutional review simply by asserting that a statute authorizes a less lawless version of its conduct.  As two D.C. Circuit judges have already explained, “‘[i]t is no overstatement to say that our constitutional system of separation of powers w[ill] be significantly altered’ by ‘allow[ing] executive . . . agencies to disregard federal law in the manner asserted in this case.’”  Climate United, 2025 U.S. App. LEXIS 22532, at *40 (Pillard, J. dissenting) (quoting Aiken Cnty., 725 F.3d at 267) (alterations in Climate United); Glob. Health Council v. Trump, __ F.4th __, No. 25-5097, 2025 U.S. App. LEXIS 20495, at *97 (Aug. 28, 2025) (Pan, J., dissenting) (same) (amended opinion).  Judges Pillard and Pan’s warnings may prove to be understatements:  In its first nine months, the Trump Administration has instructed agencies to impound or freeze more than $425 billion in congressionally authorized funding, as part of its unilateral downsizing of the federal government and elimination of certain statutorily created programs and agencies altogether. 

The en banc D.C. Circuit has opportunities to correct its Dalton interpretation.  Specifically, Dalton’s holding that “all executive actions in excess of statutory authority” are not “ipso facto unconstitutional,” Dalton, 511 U.S. at 472, cannot mean that no executive action in excess of statutory authority is ever unconstitutional.  A Youngstown assessment of the extent to which the Executive Branch is exceeding delegated authority may demonstrate an obvious lack of authority or a violation of a statutory command that courts are duty-bound to rein in, absent specific constitutional authority.  The Supreme Court cannot have intended for Dalton to mean that any colorable overlap between an alleged statutory violation and a separation-of-powers claim eviscerates the Constitution’s command that the President “take Care that the Laws be faithfully executed.”  U.S. Const., art II, § 3. 

At the very least, the en banc court should consider narrowing its new Dalton interpretation or better address the considerable tension between its interpretation and the D.C. Circuit’s opinions in Aiken County, American Forest Resource Council, and Reich, as well as the Supreme Court’s opinions in Clinton, Youngstown, and Kendall.  Resolving this tension may involve difficult line drawing on the role of limited grants of discretion, as opposed to the boundless statutory delegation at issue in Dalton.  And it will almost certainly require the en banc court to explain how to determine whether the Executive Branch is merely exceeding its discretionary authority, as opposed to acting without any basis in statutory authority or contradicting congressional commands.  But difficulty is no excuse for the D.C. Circuit to abdicate “its Article III duty to independently say what the law is and thereby hold the Executive Branch to account.”  Climate United, 2025 U.S. App. LEXIS 22532, at *67 (Pillard, J., dissenting). 

Patrick Jacobi is a Senior Attorney at the Center for Applied Environmental Law and Policy and an Adjunct Professor at the University of Denver Sturm College of Law.  Jonas Monast is the Executive Director at the Center for Applied Environmental Law and Policy.  Views expressed herein are the authors’ and not necessarily those of their affiliated institutions.

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[1] Dalton is also arguably inapposite where Congress has delegated authority to an agency or agency head, not the President. 

[2] The D.C. Circuit decisions discussed herein also address the proper procedures and forums for, among other issues, challenges to impoundments, grant terminations, and layoffs.

[3] The D.C. Circuit amended its initial opinion on August 28, 2025, and remanded to allow the plaintiffs to pursue an APA claim that the Administration had violated the Further Consolidated Appropriations Act of 2024 in district court.  A week later, the district court issued another preliminary injunction based on the plaintiffs’ likelihood of success on the merits of their APA claim.  The Administration then notified Congress of its proposed rescission for roughly $4 billion in foreign aid for the first time in the course of the litigation and requested a partial stay with the Supreme Court, which was administratively granted on September 9, 2025, and permanently granted on September 26, 2025. 

[4] Judge Pan also illustrated the deadline-driven nature of the Court’s rehearing denial based on a pending stay request at the Supreme Court and the end of the fiscal year for the appropriated funds, noting that, “with an immediate remand, the grantees may well secure relief more quickly by pursuing a new preliminary injunction based on their APA or ultra vires claims before the district court.”  Glob. Health Council, 2025 U.S. App. LEXIS 22294, at *17 (Pan, J., dissenting). 

[5] See Nuclear Reg. Comm. v. Texas, 605 U.S. 665, 681 (2025) (concluding that a nonstatutory ultra vires claim is available only when “an agency has taken action entirely in excess of its delegated powers and contrary to a specific prohibition in a statute[,]” and “is also unavailable if, as is usually the case, a statutory review scheme provides aggrieved persons with a meaningful and adequate opportunity for judicial review, or if a statutory review scheme forecloses all other forms of judicial review” (citations and internal quotation marks omitted)).