The opinion
BORK, Circuit Judge,
concurring:
I concur in the judgment and, with one caveat, in the court’s opinion. Judge Edwards makes clear that the claim to a “property interest” in homeless men’s shelter here is insubstantial and will not support any claims that additional process is due. Had there been a cross appeal, I think it highly likely that no process would have been found due. This same conclusion is also compelled by the nature of the decision the Mayor is to make. The court refers to that decision as legislative rather than adjudicative, states that this is the primary reason to refuse to require additional procedures, but cites Thompson v. Washington, 497 F.2d 626, 641 (D.C.Cir.1973), for the proposition that, under exceptional circumstances, basic considerations of fairness may impose a constitutional right to make oral submissions even in a proceeding that is legislative in nature. Even should one concede that a legislative procedure within an administrative agency might in some exceptional circumstances require, as a matter of constitutional law, that oral or written submissions be received, that concession would be wholly irrelevant to this case. The May- or is an elected official and his decision on the shelters is a political one. From the beginning of judicial review it has been understood that such decisions need not be surrounded and hemmed in with judicially imposed processes. Indeed, the reasons for judges not interfering with the methods by which political decisions are arrived at are closely akin, if not identical, to the considerations underlying the political question doctrine, a doctrine which denies the courts jurisdiction even to enter into certain areas. Thus in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 165-66 , 2 L.Ed. 60 (1803), it was said:
By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience....
. .. [WJhatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive.
This case involves the Mayor of the District of Columbia, not the President of the United States, but the principle is identical. No one has plausibly maintained that there is a constitutional or other legal right to city-provided shelter. There being no substantive constraints on the decision whether to close the shelters, that decision is a wholly political one and under no circumstances that I can imagine can there be a constitutional right to have that political judgment set about and circumscribed by procedural requirements. For the same reason, I cannot subscribe to the court’s suggestion that a decision to close the shelters might in some circumstances itself be judicially reviewable. Majority Opinion at 790. Given our legal tradition, the suggestion that there may be judicial imposition of procedures on, and review of, plainly political decisions is revolutionary. It ought to be recognized as such, lest judges grow accustomed to the suggestion that they may control any process and begin to assume powers that clearly are not theirs.