The opinion
CELEBREZZE, Circuit Judge (concurring in part and dissenting in part).
I concur with the majority in their af-firmance of the District Court with respect to the first and third causes of action as described above. I respectfully dissent, however, from the majority’s decision to reverse the District Court’s dismissal of the second cause of action.
As it has been liberally construed by the majority, the second cause of action challenges the training, weaponry, and orders of the Ohio National Guard which allegedly make inevitable the unnecessary use of lethal and nonlethal force in controlling civil disorders. This pattern of training, weaponry, and orders is said to have caused the allegedly unwarranted use of both lethal and nonlethal force on the Kent State campus in May of 1970, in deprivation of the First and Fourteenth Amendment rights of Appellants and others similarly situated, and it poses a continuing threat to their present and future exercise of those rights. To remedy this asserted threat to their constitutional rights, Appellants seek broad injunctive and declaratory relief against the Governor of Ohio and Ohio National Guard officials to prevent a recurrence of the allegedly unwarrant *618 ed use of force which is said to have taken place in May of 1970.
I disagree with the majority’s conclusion that the District Court erred in dismissing this portion of the complaint as failing to state a claim upon which relief could be granted. I find no conceivable relief which the District Court could have granted had it proceeded to hear evidence in support of these claims and determined that all of the facts alleged were true. In this respect, I recognize that “[t]he question of the propriety of remedies prayed for by plaintiffs . is not the issue on this appeal.” Build of Buffalo, Inc. v. Sedita, 441 F.2d 284, 288 (2d Cir. 1971). However, the question of whether there exists any conceivable form of relief which the District Court could have granted in response to Appellants’ claims certainly is an issue on this appeal.
With respect to the injunctive relief which is sought to cure the alleged threat posed by the pattern of training and weaponry of the Ohio National Guard, I am unable to escape the conclusion that any such relief would present a non jus-ticiable political question. The Supreme Court’s most recent and thorough discussion of the political question doctrine appears in Baker v. Carr, 369 U.S. 186, 208-226 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1962). There the Supreme Court set forth the following characteristics of non justiciable political questions:
“It is apparent that several formulations which vary slightly according to the settings in which the questions arise may describe a political question, although each has one or more elements which identify it as essentially a function of the separation of powers. Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” 369 U.S. at 217 , 82 S.Ct. at 710 .
In considering whether the voting rights asserted in Baker v. Carr constituted nonjusticiable political questions, the Supreme Court noted that “[ujnless one of these formulations is inextricable from the case at bar, there should be no dismissal for non-justiciability on the ground of a political question’s presence.” Id.
In the present case, I believe that every one of the above formulations is “inextricable” from the second cause of action to the extent that it requires judicial intervention in National Guard training and weaponry. I find a “textually demonstrable constitutional commitment” of National Guard training and weaponry to a coordinate political department under Article I, Section 8, Clause 16, of the United States Constitution, which provides that Congress shall have the power
“To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress.”
Pursuant to this constitutional authority, Congress has enacted legislation which governs the training and weaponry of the National Guard. 32 U.S.C. §§ 501-507 , 701. Moreover, Congress has expressly provided that
“The President shall prescribe regulations, and issue orders, necessary to organize, discipline, and govern the National Guard.” 32 U.S.C. § 110 . *619 And under 32 U.S.C. § 108 , the President has available the following means by which to enforce any regulations which he or the Congress may prescribe for the National Guard:
“If, within a time to be fixed by the President, a State does not comply with or enforce a requirement of, or regulation prescribed under, this title its National Guard is barred, wholly or partly as the President may prescribe, from receiving money or any other aid, benefit, or privilege authorized by law.” 1
This power to prescribe and enforce regulations for the training and weaponry of the National Guard, which Congress has delegated in part to the President, is more than a mere token and unexer-eised authority. In July of 1967, when civil disorders had come to the forefront of national concern, President Johnson announced that he had ordered the addition of special training courses to the existing National Guard training program. Weekly Compilation of Presidential Documents, Vol. 3, No. 30, at 1056 (1967). Moreover, under the authority delegated to the President, the Department of the Army has specifically set mandatory riot-control training requirements for all Army National Guard and certain Air National Guard units. See Report of the National Advisory Commission on Civil Disorders, supra, at 505.
I believe that the congressional and executive authority to prescribe and regulate the training and weaponry of the National Guard, as set forth above, clearly precludes any form of judicial regulation of the same matters. I can envision no form of judicial relief which, if directed at the training and weaponry of the National Guard, would not involve a serious conflict with a
“coordinate political department; . . a lack of judicially discoverable and manageable standards for resolving [the question]; . . . the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; . . . an unusual need for unquestioning adherence to a political decision already made; [and] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.” Baker v. Carr, supra, 369 U.S. at 217 , 82 S.Ct. at 710 .
Any such relief, whether it prescribed standards of training and weaponry or simply ordered compliance with the standards set by Congress and/or the Executive, would necessarily draw the courts into a non justiciable political question, over which we have no jurisdiction.
The question remains whether, upon the claims stated in the second portion of the complaint, the District Court could have granted any injunctive relief which would not have entailed judicial involvement in the training and weaponry of the National Guard. The majority relies heavily on Sterling v. Constantin, 287 U. S. 378 , 53 S.Ct. 190 , 77 L.Ed. 375 (1932), Lankford v. Gelston, 364 F.2d 197 (4th Cir. 1966), and Build of Buffalo, Inc. v. Sedita, 441 F.2d 284 (2d Cir. 1971), apparently for the proposition that injunc-tive relief might be available against specific conduct by the Ohio National Guard which threatens Appellants’ constitutional rights. Any such injunctive relief directed at specific unlawful conduct of the National Guard, apart from the training and weaponry of the Guard, would seemingly avoid the political question problem discussed above. Nonetheless, I believe that any such injunctive relief is unavailable to Appellants in re *620 sponse to the claims in their second cause of action.
In Sterling v. Constantin, supra, the conduct and specific acts of the National Guard in response to civil disorders were not at issue. As the Supreme Court noted:
“Fundamentally, the question here is not of the power of the Governor to proclaim that a state of insurrection, or tumult, or riot, or breach of the peace exists, and that it is necessary to call military force to the aid of the civil power. Nor does the question relate to the quelling of disturbances and the overcoming of unlawful resistance to civil authority. The question before us is simply with respect to the Governor’s attempt to regulate by executive order the lawful use of complainants’ properties in the production of oil.” 287 U.S. at 401-402 , 53 S.Ct. at 196-197 .
That the Sterling decision did not authorize federal courts to grant injunctions against the future conduct of the National Guard in the face of civil disorders is further evidenced by the Supreme Court’s recognition of the discretion which must be employed in such emergency situations:
“The nature of the power [of a governor to call out the militia to suppress insurrection and disorder] also necessarily implies that there is a permitted range of honest judgment as to the measures to be taken in meeting force with force, in suppressing violence and restoring order, for, without such liberty to make immediate decisions, the power itself would be useless. Such measures, conceived in good faith, in the face of the emergency, and directly related to the quelling of the disorder or the prevention of its continuance, fall within the discretion of the executive in the exercise of his authority to maintain peace.” 287 U.S. at 399-400 , 53 S.Ct. at 196 .
As the majority notes, the complaint concedes that when the Ohio National Guard troops were deployed to the Kent State campus in May of 1970, there existed disorders which had not been brought under control by the civilian authorities. Therefore, any injunctive relief which the District Court might have granted to curb certain conduct of the Guard troops would have restricted the discretion which the Governor and the National Guard officials must be free to exercise in the face of future disorders.
I am not suggesting that in a proper case, federal courts are barred from undertaking an after-the-fact review of National Guard conduct which has allegedly deprived persons of their constitutional rights. Nor am I suggesting that National Guard troops could never be the subject of some form of injunctive restraint in their conduct in quelling civil disorders. Rather, I simply believe that such an injunction cannot be issued when the future conduct to be restrained— such as the Ohio National Guard’s allegedly unlawful disruption of speeches and assemblies, arrests, and use of nonlethal and lethal force which are challenged here — necessarily rests upon the exercise of discretion by state officials in response to a given civil disorder. In this respect, I believe that Lankford v. Gelston and Build of Buffalo, Inc. v. Sedita, supra, are clearly distinguishable from the present case. In Lankford, the Court of Appeals for the Fourth Circuit issued an injunction against the Baltimore Police Department, barring its personnel from conducting searches of private dwellings solely on the basis of anonymous tips and hence without probable cause. And in Sedita , the Court of Appeals for the Second Circuit simply recognized that some form of injunctive relief might be issued if the plaintiffs could prove their allegations that the Buffalo city officials and the Buffalo Police Department had engaged in or condoned a systematic pattern of abusive conduct designed to deprive plaintiffs of their constitutional rights. The types of state action which were challenged in these cases were unlawful on their face; *621 neither type of conduct could have been justified under a valid exercise of discretion by state or city officials. Were any of the conduct challenged in the present complaint the type which could never be justified in the quelling of civil disorders, I am certain that injunctive relief should similarly be available to prevent its recurrence.
The conduct challenged in the present complaint, however, is not illegal and unjustified on its face. Rather, the legality ■of, and the justification for, the conduct challenged here necessarily rest upon the conditions which prevail at a given civil disorder. I can envision no form of in-junctive relief which could properly predetermine the conditions of civil disorder under which speeches and assemblies shall and shall not be disrupted, arrests shall and shall not be made, and lethal and nonlethal force shall and shall not be employed.
I therefore believe that the District Court was powerless to issue any type of an injunction directed at the specific conduct of the Ohio National Guard which is challenged in the complaint. No less than an injunction prescribing prerequisites for the Governor’s calling out the National Guard, an injunction forbidding or restricting the discretionary conduct challenged in the complaint would operate as an impermissible prior restraint on the state officials’ judgment in the face of future civil disorders.
There thus being no injunctive relief which, in my opinion, the District Court could have granted in response to Appellants’ second cause of action, only the declaratory judgment prayed for in the complaint remains to be considered. As discussed above in the context of injunc-tive relief, I believe the political question doctrine would similarly bar any form of declaratory judgment relating to the training and weaponry of the Ohio National Guard.
The only other conceivable form of declaratory judgment, apart from that relating to the training and weaponry of the National Guard, would be a judgment determining the legality of the specifically challenged conduct of the Ohio National Guard on the Kent State campus in May of 1970. I believe it is clear from the complaint, however, that the legality of the specific conduct of the National Guard troops on the Kent State campus in May of 1970 was not properly before the District Court as an “actual controversy” warranting a declaratory judgment under 28 U.S.C. § 2201 . The thrust of the claim asserted in the complaint is the present threat which the continuing pattern of training, weaponry, and orders of the Ohio National Guard poses to Appellants’ First and Fourteenth Amendment rights. Indeed, the complaint characterizes the Plaintiffs and other members of the class which they represent as students enrolled in Kent State University at the time the complaint was filed on October 15, 1970. Nowhere does the complaint allege that the named Plaintiffs or other members of the class were in fact the direct subjects of the alleged disruptions of speeches and assemblies, arrests, or use of nonlethal and lethal force in May of 1970 or that they were even enrolled in the University at the time of those disorders. Therefore, although the conduct of the National Guard in May of 1970 may have served as evidence of the alleged threat to Appellants’ constitutional rights, I do not believe that it constituted a “substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment” by the District Court under the present complaint. Golden v. Zwickler, 394 U.S. 103, 108 , 89 S.Ct. 956 , 22 L.Ed.2d 113 (1969), quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 , 61 S.Ct. 510 , 85 L.Ed. 826 (1941).
I thus am of the opinion that no conceivable form of injunctive or declaratory relief could have been granted by the District Court in response to the *622 claims asserted under the second cause of action. My conclusion is in no way altered by this Court’s decision in Bright v. Nunn, 448 F.2d 245 (6th Cir. 1971). Although the plaintiffs in Bright sought declaratory and injunctive relief similar to that prayed for in the present complaint, it is apparent that the availability of relief was not considered in the Bright decision.
I also disagree with the majority’s position that “[a] citizen complaint that state action threatens federally protected rights is, of course, cognizable in the federal courts . . .” (my emphasis). I believe this conclusion and the result reached thereunder ignore the numerous cases which clearly establish that a threat to, or “chilling effect” upon, a citizen’s constitutional rights does not automatically constitute a justiciable case or controversy for the federal courts. As noted by the Court of Appeals for the District of Columbia Circuit, not “every plaintiff who alleges a First Amendment chilling effect and shivers in court has thereby established a case or controversy.” National Student Association v. Hershey, 134 U.S.App.D.C. 56 , 412 F.2d 1103, 1113-1114 (1969). Even those cases which have liberally recognized claims of a “chilling effect” appear to raise serious questions as to whether the alleged threat to Appellants’ constitutional rights in the present case is cognizable as a justiciable case or controversy. See, e. g., National Student Association v. Hershey, 134 U.S.App.D.C. 56 , 412 F.2d 1103 (1969); Tatum v. Laird, 444 F.2d 947 (D.C.Cir.1971). Compare Younger v. Harris, 401 U.S. 37, 42 , 91 S.Ct. 746 , 27 L.Ed.2d 669 (1971); Golden v. Zwickler, 394 U.S. 103 , 89 S.Ct. 956 , 22 L.Ed.2d 113 (1969). Being of the opinion that no relief could be granted in response to the present complaint if it does indeed present a justiciable case or controversy, I find it unnecessary to resolve this more complex question.
For the reasons set forth above, I would affirm the District Court in its dismissal of all causes of action asserted in the complaint.
. The potential effectiveness of this sanction is evidenced by the fact that “[t]he Federal Government pays for 90 percent of the operating costs, virtually all of the equipment, and nearly half of the cost of the physical installations and facilities" of the National Guard. Report of the National Advisory Commission on Civil Disorders at 498 (Bantam ed. 1968).