holding that commissioning of officers in the Army was a matter of discretion within the province of the President
How later courts described this case
- holding that commissioning of officers in the Army was a matter of discretion within the province of the President
- holding that assignment decisions in the military are “not within the power” of courts to review
- holding that, although the government conceded an issue, “such a concession does not necessarily end our inquiry”
- holding discrimination claim by officer against military to be nonjusticiable because denial of commission was properly within military discretion
Written by the judges who cited it.
The opinion
Mr. Justice Frankfurter,
whom Mr. Justice Black and Mr. Justice Douglas join, dissenting.
Of course the commissioning of officers in the Army lies entirely within the President’s discretion and is not subject to judicial control. Although there can be no doubt about that, it does not follow that Congress is precluded from drafting a special group into the Army on condition that they will be commissioned. Receiving a commission is clearly not a matter of right; but granting it may be a condition for retaining a person in the Army. The commissioning of officers in the *98 Army is, no doubt, a matter of discretion within the province of the President as Commander in Chief. But whether we can or cannot hold the President’s lawful exercise of his discretion to be a ground for discharge of one he fails to commission depends on the conditions under which Congress authorized him to be drafted.
And so for me the central question in this case is whether one who is drafted under the doctors draft statute, 64 Stat. 826 , 50 U. S. C. App. (Supp. IV) § 454 (i) (1), but who does not, in due course, obtain a commission, of whatever rank, must, as a matter of statutory construction, be discharged from the Army because Congress imposed the condition of such a commission on drafting doctors above the general draft age and the condition has not been fulfilled. That view would be strongly supported by the admission of the Government in the trial court that the “regulations and practice of the United States Army provide that an individual can serve as a doctor of medicine in the United States Army only if he holds a rank as a commissioned officer.” * Further, if the statements that were made at the hearings and on the floor of the Congress by those who were in charge of the legislation had been made in a formal committee report, this Court could hardly have held that the receipt of a commission was not a condition on keeping in the Army a doctor drafted under these special provisions. Whatever we may think about the loose use of legislative history, it has never been questioned that reports of committees and utterances of those in charge of legislation constitute authoritative exposition of the meaning of legislation. It is hard to believe that the powerful American Medical Association would have failed to oppose *99 vigorously any provisions under which the Army could draft doctors not otherwise draftable as noncommissioned personnel or that the Congress would have adopted any such provision in the face of professional opposition.
An independent investigation of all the relevant factors bearing on the legislation, beyond what was brought to our attention, see Hearings before House Committee on Armed Services on H. R. 9554, 81st Cong., 2d Sess. 7164, 7166-7167, 7189, 7223; 96 Cong. Rec. 13861, would be necessary to enable one to be confident in rejecting the contention that doctors who were drafted were to obtain a commission. I do not mean to say that mandamus would lie to compel the grant of a commission. That is not the only alternative. The obvious tertium quid is the release of a doctor-draftee who is found unfit for a commission. On the basis of what has been put before us I do not see how we can dispose of the case with complete indifference to this crucial issue. This seems to me the more inadmissible in view of the shifting arguments of the Government, as it has been driven from position to position. Only in its purpose to keep this man in the Army has the Government been undeviating. He could not be drafted under the general draft law; and if a pledge was given to the medical profession, as apparently it was, that a special class of drafted doctors would be duly commissioned, Orloff ought not to be retained in disregard of that pledge. In that case, it is immaterial what quirky notions petitioner may have as to the reasons why a commission has been withheld, from him.
Compare Petition for Writ of Habeas Corpus, par. 7, R. 2, with Answer to Petition for Writ of Habeas Corpus, par. VII, R. 8-9; see R. 23-24.