Atlee v. Laird

JOSEPH S. LORD, III, Chief District Judge

(dissenting).

I respectfully dissent from the majority’s conclusion that this suit should be dismissed. Since I do not find that the subject matter involved here presents a non-justiciable political question, and I reject the government’s other grounds in support of dismissal for the reasons stated in my opinion of March 28, 1972, 1 I would proceed to the merits. '

Plaintiffs have alleged that the Executive has initiated and prosecuted major hostilities in Southeast Asia without the congressional authorization that is required by the Constitution. They claim that this is in violation of Art. I, Sec. 8, Cl. 11 which provides that “[t]he Congress shall have Power * ':i * To declare War * *

The legality of this war presents a serious and substantial constitutional question of interest to a great many citizens of this country. Once again a court has refused to provide an answer. Even though the plaintiffs have fulfilled all the constitutional and congressional requirements for jurisdiction and thus would seem to have a right to a federal forum to adjudicate their claims on the merits, they are told that their claims are non-justiciable. Traditionally, the courts in this country have provided a remedy when unconstitutional action by either the Legislature or the Executive has caused harm to citizens. The effect of the majority decision is to remove an entire provision of the Constitution from judicial scrutiny. This is not a provision of little consequence to the American people. The harm produced by most wars is of tragic proportions, as is no more readily evident than from the current hostilities in Southeast Asia. If the Executive or the Legislature acts unconstitutionally, it is not a sufficient remedy that at some future date on election day leaders may be replaced by those who hopefully will not violate the Constitution.

The duty of a court to judge whether acts of the other branches of government conform to the requirements of the Constitution when a proper case is presented to it has been established since Marbury v. Madison, 5 U.S. (1 Cranch) 137 , 2 L.Ed. 60 (1803).

“To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may, at any time, be passed by those /intended to be restrained? The dis- [ tinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed * * Id. at 176 .

The political question doctrine is a recognition that certain questions have been committed under our Constitution to the Executive or the Legislature to resolve in the exercise of unfettered discretion without judicial interference. Rather than being a device for judicial avoidance of questions, it is the outgrowth of a reasoned determination that another branch of the government has authority under our constitutional scheme to issue certain commands which may not be questioned as to their wisdom. See Tigar, Judicial Power, The “Political Question Doctrine”, And Foreign Relations, 17 U.C.L.A.L.Rev. 1135 (1970). “The non justiciability of a political question is primarily a function of the separation of powers.” Baker v. Carr, 369 *710 U.S. 186, 210 , 82 S.Ct. 691, 706 , 7 L.Ed. 2d 663 (1962).

In its most recent explanation of the doctrine the Court made clear that the principal inquiry must be “whether there has been a textual commitment to a coordinate department of the Government” of the issue in question. Powell v. McCormack, 395 U.S. 486, 519 , 89 S.Ct. 1944, 1963 , 23 L.Ed.2d 491 (1969). When there is such a demonstrable commitment, the court will not second guess the other branch’s decision on the matter. Thus, for example, in Oetjen v. Central Leather Co., 246 U.S. 297 , 38 S.Ct. 309 , 62 L.Ed. 726 (1918), the Court held that the Constitution commits to the executive branch the power to recognize foreign governments, and refused to question the determination by the President that the revolutionary government of General Carranza should be recognized in Mexico.

The doctrine of separation of powers dictates that certain issues be non-justiciable out of proper deference to another branch of the government. However, when that branch exceeds its constitutional authority in its actions our system of separation of powers with its cheeks and balances dictates that, a court proceed to the merits of a controversy.

“The doctrine of the separation of powers was adopted by the Convention of 1787, not to promote efficiency but to preclude the exercise of arbitrary power. The purpose was not to avoid friction, but, by means of the inevitable friction incident to the distribution of the governmental powers among three departments, to save the people from autocracy.” Youngstown Sheet & Tube Company v. Sawyer, 343 U.S. 579, 613-614 , 72 S.Ct. 863, 898 , 96 L.Ed. 1153 (1952) (Frankfurter, J., Concurring), quoting Myers v. United States, 272 U.S. 52, 293 , 47 S.Ct. 21 , 71 L.Ed. 160 (1926) (Brandéis, J., Dissenting).

While it is true that all matters of foreign relations are committed to either the Executive or the Legislative branch under our Constitution and that there are some twilight zone areas where responsibility is not clearly delineated, this does not mean that judicial inquiry is completely foreclosed. “[I]t is error to suppose that every case or controversy which touches foreign relations lies beyond judicial cognizance.” Baker, supra, 369 U.S. at 211 , 82 S.Ct. at 707 .

On more than one occasion, the courts have reviewed on the merits wartime executive action which was claimed to be essential to national security. In the Prize Cases, 67 U.S. 635 , 17 L.Ed. 459 (1863), the Court on the merits upheld President Lincoln’s action in April, 1861 of declaring a blockade against the states making up the Confederacy. The Court decided that a state of civil war existed, and that the President acted within his constitutional powers as Commander-in-Chief in determining that the crisis required a blockade.

In Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 , 72 S.Ct. 863 , 96 L.Ed. 1153 (1952), the Court was faced with the question of whether President Truman’s seizure of private steel mills during the Korean War exceeded his authority under the Constitution. The government’s position was that the President was acting under his executive and Commander-in-Chief powers as set forth in Article II of the Constitution. It was claimed that the safety and effectiveness of our troops fighting in Korea depended on seizing the means of producing steel. The Supreme Court found no political question difficulty and proceeded on the merits to rule President Truman’s action unconstitutional, nullifying the seizure and issuing injunctive relief against the President’s Secretary of Commerce.

Just last year during the current war in Southeast Asia the Court ruled on the merits that the Executive was not entitled to an injunction against two newspapers which intended to publish the contents of a classified study entitled “History of U. S. Decision-Making Process on Viet Nam Policy,” The govern *711 ment claimed that disclosure of these documents would pose grave and irreparable danger to the security of the United States. A dissent by Mr. Justice Harlan, in which two other Justices ‘ joined, expressed the view that because of the constitutional primacy of the Executive branch in the field of foreign affairs, the judiciary should not question the Executive’s determination of the impact that the disclosure would have on national security. Justice Harlan’s position was that foreign policy decisions are matters in the domain of political power not subject to judicial intrusion or inquiry. The majority rejected this non-justiciable political question approach, however, and proceeded on the merits to hold that the Government had not met its heavy burden of showing justification for the imposition of a prior restraint on the press. New York Times Co. v. United States, 403 U.S. 713 , 91 S.Ct. 2140 , 29 L.Ed.2d 822 (1971).

In each case in which a court is confronted with the claim by a branch of the government that an issue is non-justiciable’because it is a political question, the court must make an initial constitutional interpretation to determine whether the particular matter has been textually committed by the Constitution to that branch of the government. Baker, 369 U.S. at 211 , 82 S.Ct. 691 . If the court concludes that the matter has been so committed, further judicial inquiry is foreclosed.

The instant case concerns the hostilities in Southeast Asia in which this nation has been engaged for many years. There is little difficulty at this point in concluding that those hostilities constitute war within the meaning of Article I, Section 8, Cl. 11, and that we must evaluate the legality of defendant’s actions in light of this constitutional provision. Orlando v. Laird, 317 F.Supp. 1013, 1018 (E.D.N.Y.1970), aff’d. 443 F.2d 1039 (C.A.2, 1971). When nations contend with force under the authority of their respective governments with the scope of troop commitment and casualties involved here, the conflict must be considered war or the word has lost all meaning. See Bas v. Tingy, 4 U.S. (4 Dall.) 37 , 1 L.Ed. 731 (1800); Prize Cases, supra; Note, Congress, The President, And The Power To Commit Forces To Combat, 81 Harv.L.Rev. 1771, 1803 (1968).

Art. I, Sec. 8, Cl. 11 on its face hardly seems to provide a textual commitment to the Executive to involve our nation in war. It states that “[t]he Congress shall have Power * * * To declare War * * Only if this was read in a very narrow manner as granting Congress simply the power to declare war formally, while leaving the initiative for undeclared wars to the Executive, could it be concluded that there has been a textual commitment to the Executive of the question of the wisdom of involving our nation in this war in Southeast Asia. This, however, has never been the interpretation given to that provision of our Constitution.

The Court early recognized that the power given to Congress was the exclusive means whereby the nation was to be committed to war. Talbot v. Seeman, 5 U.S. (1 Cranch) 1 , 2 L.Ed. 15 (1801), invplved the question of the legality of the seizure of a French ship.

“In order, then, to decide on the right of Captain Talbot, it becomes necessary to examine the relative situation of the United States and France at the date of the recapture.

“The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this inquiry. It is not denied * * * that congress may authorize general hostilities, * * * or partial hostilities * Id. at 28 , 2 L.Ed. 15 .

In Youngstown, supra, the Government in claiming Executive power to seize private steel mills asserted that the scope of Presidential power in dealing with foreign policy problems was most forcefully illustrated by the fact that President Truman had sent American *712 troops to Korea as an exercise of his constitutional powers. Though the question of the legality of the undeclared Korean War was not before the Court, Justice Jackson forcefully responded to this government assertion.

“ * * * Thus, it is said he [President Truman] has invested himself with ‘war powers’.

“I cannot foresee all that it might entail if the Court should indorse this argument. Nothing in our Constitution is plainer than that declaration of a war is entrusted only to Congress. Of course a state of war may in fact exist without a formal declaration. But no doctrine, that' the Court could promulgate would seem to me more sinister and alarming than that a President whose conduct of foreign affairs is so largely uncontrolled, and often even is unknown, can vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.” Id. 343 U.S. at 642-643 , 72 S.Ct. at 873 , 96 L.Ed. 1153 (concurring opinion).

The Second Circuit recently concluded that the war clause was intended to restrict the power of the Executive by requiring congressional authorization for the waging of war.

“History makes clear that the congressional power ‘to declare War’ conferred by Article I, section 8, of the Constitution was intended as an explicit restriction upon the power of the Executive to initiate war on his prerogative which was enjoyed by the British sovereign.” Berk v. Laird, 429 F.2d 302, 305 (C.A.2, 1970). 2

This case does not involve second guessing the wisdom of the Executive in a matter committed by the Constitution to that branch of the Government. It is rather a constitutional question concerning the division of power within our system, involving a determination of whether the executive branch has exceeded the scope of its constitutional power. Other requisites for justiciability indicated in the Baker and Powell decisions are satisfied here. Concluding that the war making clause requires congressional authorization, the court can examine congressional legislation and determine whether authorization exists. The Executive has a constitutional “duty * * * [which] can be judicially identified and its breach judicially determined.” Baker, 369 U.S. at 198 , 82 S.Ct. at 700 . The court would be involved in legal interpretations, a function which it is accustomed to performing. The question would be whether various acts of Congress such as appropriations bills and extensions of the Selective Service Act provide sufficient congressional authorization under the war making clause for the actions which have been taken by the Executive in Southeast Asia. 3

A declaration of the present unconstitutionality of the war in Southeast Asia need not leave the government in the impossible position of having no lawful means to effectuate anything but a precipitous abandonment of our personnel *713 now there 4 The courts have ample power to prescribe appropriate steps to put an end to an unlawful enterprise without creating ridiculous and unmanageable situations. With the aid of the par-, ties, a flexible equitable decree could be formulated, or if injunctive relief is deemed inappropriate a declaratory judgment could be issued.

While a remedy is no easy matter in this situation, the Supreme Court has indicated in the past that the courts will ánswer important constitutional questions of vital interest to the people despite problems encountered in formulating remedies when unconstitutional conduct is found. See, e. g., Baker, supra; Brown v. Board of Education, 347 U.S. 483 , 74 S.Ct. 686 , 98 L.Ed. 873 (1954), 349 U.S. 294 , 75 S.Ct. 753 , 99 L.Ed. 1083 (1955). If a constitutional violation is occurring here, the magnitude of harm is astounding. A court certainly has at least an equal responsibility to confront such problems as it does to prevent less serious usurpations of power by another branch of the government. I am in agreement with Judge Sweigert’s observation that non-decision is especially inappropriate here in light of the Youngstown steel mills seizure case.

“It seems to this court that to strike down as unconstitutional a President’s wartime seizure of a few private steel mills but to shy away on ‘political question’ grounds from interfering with a presidential war, itself, would be to strain at a gnat, and swallow a camel.” Mottola v. Nixon, 318 F. Supp. 538, 550 (N.D.Cal.1970).

While the Baker decision indicated that a factor in determining justiciability was the possible lack of respect for a coordinate branch of the government which a decision on the merits might seem to indicate, 5 the Court in Powell put such considerations to rest as it emphasized the traditional duty of the Court to interpret the law.

“Our system of government requires that federal courts on occasion interpret the Constitution in a manner at variance with the construction given the document by another branch. The alleged conflict that such an adjudication may cause cannot justify the courts’ avoiding their constitutional responsibility.” Powell, 395 U.S. 486 at 549 , 89 S.Ct. 1944, at 1978 .

I would proceed to the merits; therefore, I dissent.

. Atlee v. Laird, 339 F.Supp. 1347 (E.D.Pa.1972).

. A recent law review article after an extensive analysis of the history of the passage of the war making clause concluded that this was its meaning at the time of adoption as “it was not understood in a narrow technical sense but rather as meaning the power to commence war, whether declared or not.” Lofgren, War-Making Under the Constitution: The Original Understanding, 81 Yale L.Rev. 672, 699 (1972).

. The Second Circuit has held that the form by which Congress authorizes a war is itself a “political question” not suited for judicial inquiry. It did conclude that congressional legislation has provided sufficient authorization or ratification for the current hostilities. Orlando v. Laird, 443 F.2d 1039 (C.A. 2, 1971). ^However, as Judge Sweigert has pointed out, a strong case can be made for the plaintiffs’ position that the Constitution requires an explicit, deliberate act of authorization and that appropriation acts and draft extensions are too ambivalent to supply the necessary constitutional authorization. This is the question properly to be decided on the merits. See Mottola v. Nixon, 318 F. Supp. 538 (N.D.Cal.1970).

. In fact, a decision of unconstitutionality might not result in an end to the war as some people have assumed. All that it would require is a conformance of governmental action to the requirement of the Constitution. “If we determine that the Indochina conflict is unconstitutional because it lacks a congressional declaration of war, the Chief Executive is free to seek one, as was President Truman free to seek congressional appi'oval after our Steel Seizure decision.” Massachusetts v. Laird, 400 U.S. 886, 899 , 91 S.Ct. 128, 135 , 27 L.Ed.2d 130 (1970) (Douglas, J., dissenting from denial of leave to file a bill of complaint).

. 369 U.S. at 217 , 82 S.Ct. 691 .