On Motion for Leave to File Bill of Complaint.
The motion of The Constitutional Lawyers' Committee on
Undeclared War for leave to file a supplemental brief, as amicus
curiae, is granted.
The motion of John M. Wells et al. for leave to file a brief, as
amici curiae, to participate in oral argument, or alternative
motion to be named as parties, is denied.
The motion for leave to file a bill of complaint is denied.
Mr. Justice DOUGLAS, dissenting.
This motion was filed by the Commonwealth of Massachusetts
against the Secretary of Defense, a citizen of another State. It is
brought pursuant to a mandate contained in an act of the
Massachusetts Legislature. 1970 Laws, c. 174. Massachusetts seeks
to obtain an adjudication of the constitutionality of the United
States' participation in the Indochina war. It requests that the
United States' participation be declared 'unconstitutional in that
it was not initially authorized or subsequently ratified by
Congressional declaration'; it asks that the Secretary of Defense
be enjoined 'from carrying out, issuing, or causing to be issued
any further orders which would increase the present level of United
States troops in Indochina'; and it asks that, if appropriate
congressional action is not forthcoming within 90 days of this
Court's decree, that the Secretary of Defense be enjoined 'from
carrying out, issuing, or causing to be issued any further order
directing any inhabitant of the Commonwealth of Massachusetts to
Indochina for the purpose of participating in combat or supporting
combat troops in the Vietnam war.' Today this Court denies leave to
file the complaint. I dissent.
Page 400 U.S.
886 , 887
The threshold issues for granting leave to file a complaint in
this case are standing and justiciability. I believe that
Massachusetts has standing and the controversy is justiciable. At
the very least, however, it is apparent that the issues are not so
clearly foreclosed as to justify a summary denial of leave to
file.
STANDING
In Massachusetts v. Mellon,
262 U.S. 447, the Court
held a State lacked standing to challenge, as parens patriae, a
federal grant-in-aid program under which the Federal Government was
allegedly usurping powers reserved to the States. It was said in
Mellon:
'[T]he citizens of Massachusetts are
also citizens of the United States. It cannot be conceded that a
State, as parens patriae, may institute judicial proceedings to
protect citizens of the United States from the operation of the
statutes thereof. While the State, under some circumstances, may
sue in that capacity for the protection of its citizens (Missouri
v. Illinois,
180 U.S.
208, 241), it is no part of its duty or power to enforce their
rights in respect of their relations with the Federal Government.
In that field it is the United States, and not the States, which
represents them as parens patriae, when such representation becomes
appropriate, and to the former and not to the latter, they must
look for such protective measures as flow from that status.' Id.,
at 485-486.
The Solicitor General argues that Mellon stands as a bar to this
suit.
Yet the ruling of the Court in that case is not dispositive of
this one. The opinion states 'We need not go so far as to say that
a state may never intervene by
Page 400 U.S.
886 , 888
suit to protect its citizens against any form of enforcement of
unconstitutional acts of Congress; but we are clear that the right
to do so does not arise here.' Id., at 485. Thus the case did not
announce a per se rule to bar all suits against the Federal
Government as parens patriae and a closer look at the bases of the
opinion is necessary to determine the limits on its
applicability.
Mellon relates to an Act of Congress signed by the Executive, a
distinction noted in other original actions. In Georgia v.
Pennsylvania Railroad Co.,
324 U.S. 439, we stated,
'[t] his is not a suit like Massachusetts v. Mellon, and Florida v.
Mellon, supra, [
273 U.S.
12] where a State sought to protect its citizens from the
operation of a federal statute.' Id., at 446- 447.
Massachusetts attacks no federal statute. In fact, the basis of
Massachusetts' complaint is the absence of congressional
action.
It is said that the Federal Government 'represents' the
citizens. Here the complaint is that only one representative of the
people, the Executive, has acted and the other representatives of
the citizens have not acted, although, it is argued, the
Constitution provides that they must act before an overseas 'war'
can be conducted.
There was a companion case to Mellon in which the Court held
that a taxpayer lacked standing to challenge the same federal
spending statute. Frothingham v. Mellon,
262 U.S. 447. Two years
ago we reconsidered Frothingham and found at least part of the
ruling could not stand the test of time. Concurring in the result,
I stated:
'Frothingham, decided in 1923, was in
the heyday of substantive due process, when courts were sitting in
judgment on the wisdom or reasonableness of legislation. The claim
in Frothingham was that a
Page 400 U.S.
886 , 889
federal regulatory Act dealing with maternity deprived the
plaintiff of property without due process of law. When the Court
used substantive due process to determine the wisdom or
reasonableness of legislation, it was indeed transforming itself
into the Council of Revision which was rejected by the
Constitutional Convention. It was that judicial attitude, not the
theory of standing to sue rejected in Frothingham, that involved
'important hazards for the continued effectiveness of the federal
judiciary,' to borrow a phrase from my Brother Harlan. A contrary
result in Frothingham in that setting might have accentuated an
ominous trend to judicial supremacy.' Flast v. Cohen,
392 U.S.
83, 107.
In Flast we held a taxpayer had standing to challenge a federal
spending program, if he showed that Congress breached a specific
limitation on its taxing and spending power. As Mr. Justice Stewart
stated in his concurring opinion, '[t]he present case is thus
readily distinguishable from Frothingham v. Mellon,
262 U.S. 447, where the
taxpayer did not rely on an explicit constitutional prohibition but
instead questioned the scope of the powers delegated to the
national legislature by Article I of the Constitution.' 392 U.S.,
at 114.
The erosion of Frothingham does not, of course, necessarily mean
that the authority of Mellon has been affected. But if the current
debate over Frothingham '... suggests that we should undertake a
fresh examination of the limitations upon standing to sue,' 392
U.S., at 94, then surely the erosion of Frothingham suggests it is
time to reexamine its companion case.
Mellon, too, has been eroded by time. In the spring of 1963 the
Governor of Alabama moved for leave to file
Page 400 U.S.
886 , 890
a complaint to prevent the President from using troops in
Birmingham during civil rights marches there. Under the Solicitor
General's reading of Mellon Alabama would lack standing to
challenge such an exercise of presidential authority. The Court
denied Alabama relief, not because of Mellon, but because:
'In essence the papers show no more
than that the President has made ready to exercise the authority
conferred upon him by 10 U.S.C. 333 by alerting and stationing
military personnel in the Birmingham area. Such purely preparatory
measures and their alleged adverse general effects upon the
plaintiffs afford no basis for the granting of any relief.' Alabama
v. United States,
373
U.S. 545, 10 L. Ed. 2d 540.
In South Carolina v. Katzenbach,
383 U.S. 301d 769, Mellon
was further weakened. In that case we denied standing to South
Carolina to assert claims under the Bill of Attainder Clause of
Article I and the principle of separation of powers which were
regarded 'only as protections for individual persons and private
groups who are particularly vulnerable to nonjudicial
determinations of guilt.' 383 U.S., at 324. Yet we went on to allow
South Carolina to challenge the Voting Rights Act of 1965 as beyond
congressional power under the Fifteenth Amendment.
The main interest of South Carolina was in the continuing
operation of her election laws. Massachusetts' claim to standing in
this case is certainly as strong as South Carolina's was in the
Katzenbach case.
Massachusetts complains, as parens patriae, that her citizens
are drafted and sent to fight in an unconstitutional overseas war.
Their lives are in jeopardy. Their liberty is impaired.
Furthermore, the basis on which Flast distinguished Frothingham
is also present here. The allegation in
Page 400 U.S.
886 , 891
both Mellon and Frothingham was that Congress had exceeded the
general powers delegated to it by Art. I, 8, and invaded the
reserved powers of the States under the Tenth Amendment. The claim
was not specific; but, as Flast held, if a taxpayer can allege
spending violates a specific constitutional limitation, then he has
standing. Here Massachusetts points to a specific provision of the
Constitution. Congress by Art. I, 8, has the power 'To declare
War.' Does not that make this case comparable to Flast?
It has been settled at least since 1900 that 'if the health and
comfort of the inhabitants of a State are threatened, the State is
the proper party to represent and defend them.' Missouri v.
Illinois,
180 U.S.
208, 241, in an original action in this Court. And see Georgia
v. Tennessee Copper Co.,
206 U.S.
230, 237-238; Pennsylvania v. West Virginia,
262 U.S.
553, 591-592; North Dakota v. Minnesota,
263 U.S.
365, 372- 376; George v. Pennsylvania R. Co.,
324 U.S. 439, 450-451.
Those cases involved injury to inhabitants of one State by water or
air pollution of another State, by interference with navigation, by
economic losses caused by an out-of-state agency, and the like. The
harm to citizens of Massachusetts suffered by being drafted for a
war are certainly of no less a magnitude. Massachusetts would
clearly seem to have standing as parens patriae to represent as
alleged in its complaint, its male citizens being drafted for
overseas combat in Indochina.
JUSTICIABILITY
A question that is 'political' is opposed to one that is
'justiciable.' In reviewing the dimensions of the 'political'
question we said in Baker v. Carr,
369 U.S.
186, 217:
'... Prominent on the surface of any
case held to involve a political question is found a textually
Page 400 U.S.
886 , 892
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 nonjudicial 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.'
1. A textually demonstrable constitutional commitment of
the issue to a coordinate political department. At issue here is
the phrase in Art. I, 8, cl. 11: 'To declare War.' Congress
definitely has that power. The Solicitor General argues that only
Congress can determine whether it has declared war. He states, "To
declare War' includes a power to determine, free of judicial
interference, the form which its authorization of hostilities will
take.' This may be correct. But as we stated in Powell v.
McCormack,
395 U.S.
486, the question of a textually demonstrable commitment and
'what is the scope of such commitment are questions [this Court]
... must resolve for the first time in this case.' Id., at 549
(emphasis added). It may well be that it is for Congress, and
Congress alone, to determine the form of its authorization, but if
that is the case we should only make that determination after full
briefs on the merits and oral argument.
2. A lack of judicially discoverable and manageable
standards for resolving the issue. The standards that are
applicable are not elusive. The case is not one where
Page 400 U.S.
886 , 893
the Executive is repelling a sudden attack. [
Footnote 1] The present Indochina 'war' has gone
on for six years. The question is whether the Gulf of Tonkin
Resolution was a declaration of war or whether other Acts of
Congress were its equivalent.
3. The impossibility of deciding without an initial
policy determination of a kind clearly for nonjudicial discretion.
In Ex parte Milligan, 4 Wall. 2, 139 (concurring opinion), it was
stated that 'neither can the President, in war more than in peace,
intrude upon the proper authority of Congress. ...'2 That issue in
this case is not whether we ought to fight a war in Indochina, but
whether the Executive can do so without congressional
authorization. This is not a case where we would have to determine
the wisdom of any policy.
4. The impossibility of a court's undertaking independent
resolution without expressing lack of respect due coordinate
branches of government. The Solicitor General argues it would show
disrespect of the Executive to go behind his statements and
determine his au-
Page 400 U.S.
886 , 894
thority to act in these circumstances. Both Powell and the Steel
Seizure Case (Youngstown Sheet & Tube v. Sawyer,
343 U.S. 579), however,
demonstrates that the duty of this Court is to interpret the
Constitution, and in the latter case we did go behind an executive
order to determine his authority. As Mr. Justice Frankfurter stated
in the Steel Seizure Case:
'To deny inquiry into the President's
power in a case like this, because of the damage to the public
interest to be feared from upsetting its exercise by him, would in
effect always preclude inquiry into challenged power, which
presumably only avowed great public interest brings into action.
And so, with the utmost unwillingness, with every desire to avoid
judicial inquiry into the powers and duties of the other two
branches of government, I cannot escape consideration of the
legality of Executive Order No. 10340.
* * *
'Marshal's admonition that 'it is a
constitution we are expounding' ( McCulloch v. Maryland, 4 Wheat.
316, 407) is especially relevant when the Court is required to give
legal sanctions to an underlying principle of the Constitution-that
of separation of powers.' 343 U.S., at 596-597.
It is far more important to be respectful to the Constitution
than to a coordinate branch of government. [
Footnote 3]
5. An unusual need for unquestioning adherence to a
political decision already made. This test is essentially
Page 400 U.S.
886 , 895
a reference to a commitment of a problem and its solution to a
coordinate branch of government4-a matter not involved here.
Page 400 U.S.
886 , 896
6. The potentiality of embarrassment from multifarious
pronouncements by various departments of government on one
question. Once again this relates back to whether the problem and
its solution are committed to a given branch of government.
We have never ruled, I believe, that when the Federal Government
takes a person by the neck and submits him to punishment,
imprisonment, taxation, or submission to some ordeal, the
complaining person may not be heard in court. The rationale in
cases such as the present is that government cannot take life,
liberty, or property of the individual and escape adjudication by
the courts of the legality of its action.
That is the heart of this case. It does not concern the wisdom
of fighting in Southeast Asia. Likewise no question of whether the
conflict is either just or necessary is present. We are asked
instead whether the Executive has power, absent a congressional
declaration of war, to commit Massachusetts citizens in armed
hostilities on foreign soil. Another way of putting the question is
whether under our Constitution presidential wars are permissible?
Should that question be answered in the negative we would then have
to determine whether Congress has declared war. That question which
Massachusetts presents is in my view justiciable.
Page 400 U.S.
886 , 897
It is said that 'the notion has persisted, despite the results
in Baker v. Carr, and Powell v. McCormack,
395 U.S. 486, 23 L. Ed.
2d 491 ... that there is a means for the Court to avoid deciding
any case or issue upon the basis of a broad, highly general, and
almost discretionary principle of nondecision.' Tigar, Judicial
Power, The 'Political Questions Doctrine,' and Foreign Relations,
17 U.C.L.A.L.Rev. 1135, 1163 (1970). Yet no such discretionary
principle, if germane to our problem, is applicable here.
'The war power of the United States
like its other powers ... is subject to constitutional
limitations.' Hamilton v. Kentucky Distilleries and Warehouse Co.,
251 U.S.
146, 156. No less than the war power-the greatest leveler of
them all-is the power of the Commander-in-Chief subject to
constitutional limitations. That was the crux of the Steel Seizure
Case. Concurring in that case, Mr. Justice Clark stated: 'I
conclude that where Congress has laid down specific procedures to
deal with the type of crisis confronting the President, he must
follow those procedures in meeting the crisis. ... I cannot sustain
the seizure in question because ... Congress had [sic] prescribed
methods to be followed by the President. ...' 343 U.S., at 662. If
the President must follow procedures prescribed by Congress, it
follows a fortiori that he must follow procedures prescribed by the
Constitution.
This Court has previously faced issues of presidential war
making. The legality of Lincoln's blockade was considered in the
Prize Cases, 67 U. S. (2 Black) 635, and although the Court
narrowly split in supporting the President's position, the split
was on the merits, not on whether the claim was justiciable. And
even though that war was the Civil War and not one involving an
overseas expedition, the decision was 5 to 4.
Page 400 U.S.
886 , 898
In the Steel Seizure Case members of this Court wrote seven
opinions and each reached the merits of the Executive's seizure. In
that case, as here, the issue related to the President's powers as
Commander-in-Chief and the fact that all nine Justices decided the
case on the merits and construed the powers of a coordinate branch
at a time of extreme emergency should be instructive. In that case
we said:
'It is clear that if the President
had authority to issue the order he did, it must be found in some
provision of the Constitution. And it is not claimed that express
constitutional language grants this power to the President. The
contention is that presidential power should be implied from the
aggregate of his powers under the Constitution. Particular reliance
is placed on provisions in Article II which say that 'The executive
Power shall be vested in a President ...'; that 'he shall take Care
that the Laws be faithfully executed'; and that he 'shall be
Commander in Chief of the Army and Navy of the United
States.'
'The order cannot properly be
sustained as an exercise of the President's military power as
Commander in Chief of the Armed Forces. The Government attempts to
do so by citing a number of cases upholding broad powers in
military commanders engaged in day-to-day fighting in a theater of
war. Such cases need not concern us here. Even though 'theater of
war' be an expanding concept, we cannot with faithfulness to our
constitutional system hold that the Commander in Chief of the Armed
Forces has the ultimate power as such to take possession of private
property in order to keep labor disputes from stopping production.
This is a job for the Nation's lawmakers, not for its military
authorities.' 343 U.S. at 587.
Page 400 U.S.
886 , 899
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 approval after our Steel Seizure decision.
There is, of course, a difference between this case and the
Prize Cases and the Steel Seizure Case. In those cases a private
party was asserting a wrong to him: his property was being taken
and he demanded a determination of the legality of the taking. Here
the lives and liberties of Massachusetts citizens are in jeopardy.
Certainly the Constitution gives no greater protection to property
than to life and liberty. It might be argued that the authority in
the Steel Seizure Case was not textually apparent in the
Constitution, while the power of the Commander-in-Chief to commit
troops is obvious and therefore a different determination on
justiciability is needed. The Prize Cases, however, involved
Lincoln's exercise of power in ordering a blockade by virtue of his
powers as the Commander-in-Chief.
Since private parties-represented by Massachusetts as parens
patriae are involved in this case-the teaching of the Prize Cases
and the Steel Seizure Case is that their claims are
justiciable.
The Solicitor General urges that no effective remedy can be
formulated. He correctly points out enforcing or supervising
injunctive relief would involve immense complexities and
difficulties. But there is no requirement that we issue an
injunction. Massachusetts seeks declaratory relief as well as
injunctive relief. In Baker v. Carr we stated that we must
determine whether 'the duty asserted can be judicially identified
and its breach judicially determined, and whether protection for
the right asserted can be judicially molded.' 369 U.S. at 198. The
Declaratory Judgment Act, 28 U.S.C. 2201, provides that 'any court
of the United States ...
Page 400 U.S.
886 , 900
may declare the rights ... of any interested party ... whether
or not further relief is or could be sought.' It may well be that
even declaratory relief would be inappropriate respecting many of
the numerous issues involved if the Court held that the war were
unconstitutional. I restrict this opinion to the question of the
propriety of a declaratory judgment that no Massachusetts man can
be taken against his will and made to serve in that war. Powell
involved just one man while this case involves large numbers of
men. But that goes only to the mechanical task of making any remedy
granted available to all members of a large class.
Today we deny a hearing to a State which attempts to determine
whether it is constitutional to require its citizens to fight in a
foreign war absent a congressional declaration of war. Three years
ago we refused to hear a case involving draftees who sought to
prevent their shipment overseas. Mora v. McNamara, 128 U.S.App.D.C.
297,
387 F.2d
862 (1967), cert. denied,
389 U.S. 934 (1967). The
question of an unconstitutional war is neither academic nor
'political.' These cases have raised the question in adversary
settings. It should be settled here and now.
I would set the motion for leave to file down for argument and
decide the merits only after full argument.
Mr. Justice HARLAN and Mr. Justice STEWART dissent. They would
set this motion for argument on the questions of standing and
justiciability.
Footnotes
Footnote 1 An early draft of
the Constitution vested in Congress the power to 'make' war rather
than the power to 'declare' war. The change from 'make' to
'declare' was intended to authorize the President the power to
repel sudden attacks and to manage, as Commander-in-Chief any war
declared by Congress. The change was not intended to give the
President power to initiate hostilities and commit troops in war at
his own will. The Framers were afraid of unlimited executive power
and 'resolved to so frame the Constitution that no one man should
hold the power of bringing this oppression upon us.' A. Lincoln as
quoted in E. Corwin, The President: Office & Powers, 45 (4th
ed. 1964). See generally, Note, The Congress, the President, and
the Power to Commit Forces to Combat, 81 Harv.L.Rev. 1771 (
1968).
Footnote 2 The majority in
Milligan stated: 'The Constitution of the United States is a law
for rulers and people, equally in war and in peace, and covers with
the shield of its protection all classes of men, at all times, and
under all circumstances.' 4 Wall., at 120-121.
Footnote 3 'When all is said
and done, one is inclined to think a rigid Constitutional frame is
on the whole preferable even if it serves no better purpose than to
embarrass an overactive Executive.' G. Hausner, Individual Rights
in the Courts of Israel, International Lawyers' Convention in
Israel, 201, 228 (1958).
Footnote 4 The classic
political questions case is Luther v. Borden, 7 How. 1, growing out
of the Dorr Rebellion in Rhode Island. That State had been
unaffected by the constitutional changes during the Revolutionary
War and when Connecticut acquired a new constitution in 1818, Rhode
Island was the only State which retained its original colonial
charter as fundamental law. The charter government was
malapportioned and required ownership of $134 of real property for
voting purposes.
From the early 1820's on there was agitation for a new
constitution in Rhode Island. Finally one constitution put to the
'voters' was passed. A 'people's' convention on November 18, 1841,
put forth a new constitution with a Bill of Rights, better
apportionment, and white manhood sufferage. Under the voting
requirements established by that constitution, all white adult
males were allowed to vote for or against the 'people's'
constitution. A majority of the voters ratified the constitution.
Following the ratification, elections were held. Rhode Island then
had two governments, one under the 'people's' constitution, the
other under the original charter. The 'people's' government had a
quick legislative session and did not attempt to change either the
judiciary or the administrative officers of the State. On June 26,
1842, the charter governor proclaimed martial law finally to
establish his authority. Luther v. Borden arose out of Borden's
attempt pursuant to instructions to arrest Luther. Luther brought
action in the federal courts for trespass and Borden defended his
actions as taken under martial law, lawfully proclaimed. Judge
Story refused to give Luther's requested jury instructions, that
the 'people's' constitution was in full force in June 1842 because
'a majority of the free white male citizens of Rhode Island, of 21
years and upwards, had a right to reassume the powers of government
and establish a written constitution; and that, having so exercised
such right, the pre-existing charter government became null and
void.' The case then went to the Supreme Court and faced with the
question of which of the two governments was the lawful one, the
Court held that determination was a political question, not for
judicial determination-that the political question was for Rhode
Island to resolve or for Congress under Art. IV, 4, of the
Constitution, 7 How., at 38-43.
Dorr, who had been the governor under the 'people's'
constitution, was tried and convicted of treason against the State
in early 1844. In January he was offered a legislative pardon if he
would take an oath affirming support for the government in power.
He refused since he believed the 'people's' constitution was still
binding. In June 1845, he was unconditionally pardoned under a new
governor. Finally, in February 1854, the legislature reversed and
annulled Dorr's conviction. For a history of the Dorr Rebellion,
see A. Mowry, The Dorr War (1970).