TIT

OF MITCHELL V. LAIRD No. 71-1510, MARCH 20, 1973) AND ALLT-IN BY AMERICAN LAW DIVISION, LIBRARY OF CONGRESS

WASHLIGION. D.C., March 30, 1973,

Fign Affairs Committee.

PSC George Berdies,

Aan Law Division.

Sunyeri. An analysis of M tehoa y La ri a sut to enjoin and declare ubucsutitional the war 1. Vezan

Earsowed please find a erpy of the coinion in Mitchell v. Laird, March 20, 197 a mot fled br 13 Congressmen regardwers of the Present, and a brief analysis of the case,

On the contrary, the Court treated the President's power to interpret and apply the United Nations Charter in the Rhodesian case as complete and obvious, and entirely valid until Congress, several years later, overruled the President on the matter. The decision of Congress, the Court said, made the United States "a certain treatyviolator," and perhaps involved it in international obligations for breach of the treaty, as was the case when Congress abrogated the alliance with France in 1798.2 But whether the United States decides to carry out a treaty of this character, or to breach it; or how it decides to interpret and apply such a treaty, are political decisions entrusted by the Constitution to the discretion of the President and the Congress-the President in the first instance, and Congress ultimately. Congress can support the President's initial application of the Treaty by its silence, as was the case in the Rhodesian affair for 5 years, or by affirmative action, through joint resolutions, appropriation bills, or otherwise. And Congress can overrule the President.

3. Mr. Berger reproaches me for not commenting on Madison's reply to Hamilton's defense of the constitutionality of the President's Neutrality Proclamation of 1793. The episode was not one of the most attractive in the careers either of Jefferson or of Madison. Jefferson, having supported the President in the decision to issue a Presidential Proclamation of Neturality, "was quite ready to make whatever political capital he could out of the opposition to it," as Professor Corwin points out. Becoming alarmed at the political effect of Hamilton's defense of the constitutionality of a Presidential Proclamation of Neutrality, Jefferson induced Madison to enter the lists, although Madison was reluctant, and took positions at variance with many of his earlier constructions of the Executive power, for example, on the problem of removals. I fully agree with Professor Corwin that in this instance, and on the particular issue of the President's authority to interpret and apply treaties in the first instance, Hamilton's view has prevailed.1

4. Mr. Berger refers to Senator Wiley's statements on the floor of the Senate with regard to the Korean Treaty. To me, the differences between Senator Fulbright and Senator Wiley on this point simply confirm the correctness of Senator Cooper's judgment that the issue has never in fact been resolved.

The true problem facing the Nation is not whether Congress has the exclusive power to authorize a state of war-no one contests that fact-but how to distinguish those acts or threats of force which the President may appropriately initiate, in the course of diplomacy, in executing the treaty obligations of the United States, in defense of the United States, or in asserting the rights of the Nation under international law; and (2) when, and how, the concurrence of Congress should be obtained.

In my view, Mr. Berger's answer to these questions is simplistic, and unconvincing.

Yours sincerely,

1 Diggs v. Schultz, 470 F. 2d 461, 466 (App. D.C., 1972).

Gray v. United States, 21 Court of Claims 340 (1886).

EUGENE V. ROSTOW.

Edward S. Corwin, "The President's Control of Foreign Relations" (1917), p. 16.

4 Id., at p. 32. See also Corwin, "The President, Office and Powers" (1940), pp. 208-216.

OPINION OF MITCHELL V. LAIRD (No. 71-1510, MARCH 20, 1973) AND ANALYSIS BY AMERICAN LAW DIVISION, LIBRARY OF CONGRESS

WASHINGTON, D.C., March 30, 1973.

To: House Foreign Affairs Committee.

Attention: George Berdes.

From: American Law Division.

Subject: An analysis of Mitchell v. Laird, a suit to enjoin and declare unconstitutional the war in Vietnam.

Enclosed please find a copy of the opinion in Mitchell v. Laird, No. 71-1510 (March 20, 1973), a suit filed by 13 Congressmen regarding the war powers of the President, and a brief analysis of the case. We hope this serves your needs.

RICHARD EHLKE,
Legislative Attorney.

Notice: This opinion is subject to formal revision before publication in the Federal Reporter or U.S.App.D.C. Reports. Users are requested to notify the Clerk of any formal errors in order that corrections may be made before the bound volumes go to press.

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 71-1510

The Honorable Parren J. Mitchell, et al, appellants

V.

Melvin R. Laird, et al

Appeal from the United States District Court
for the District of Columbia

Decided March 20, 1973

Lawrence R. Velvel, with whom Stefan Tucker and Christopher Sanger were on the brief, for appellants.

Gregory Brady, Assistant United States Attorney with whom Harold H. Titus, Jr., United States Attorney, John A. Terry, Michael A. Katz, Assistant United States Attorneys and Hermine Herta Meyer, Attorney, Department of Justice were on the brief, for appellees. Thomas A. Flannery United States Attorney at the time the record was filed

93-626-73-33

and Walter H. Fleischer, Attorney, Department of Justice, also entered appearances for appellees.

Before BAZELON, Chief Judge, and TAMM, Circuit Judge [2] and CHARLES E. WYZANSKI, Jr.,* Senior United States District Judge for the District of Massachusetts.

Opinion for the Court filed by Senior District Judge Wyzanski.

WYZANSKI Senior District Judge: April 7, 1971 thirteen members of the United States House of Representatives, as plaintiffs, filed in the District Court a complaint against the President of the United States, the Secretaries of State, Defense, Army, Navy, and Air Force, and the United States of America. Plaintiffs alleged that for seven years the United States, by the named individual defendants and their predecessors, has been engaged in a war in Indo-China without obtaining "either a declaration of war or an explicit, intentional and discrete authorization of war" and thereby "unlawfully impair and defeat plaintiffs' Constitutional right, as members of the Congress of the United States, to decide whether the United States should fight a war." Plaintiffs prayed for, first, an order that defendants be enjoined from prosecuting the war in Indo-China unless, within 60 days from the date of such order, the Congress shall have explicitly, intentionally and discretely authorized a continuation of the war, and second, "a declaratory judgment that defendants are carrying on a war in violation of Article I, Section 8, Clause 11 of the United States Constitution."

The District Court dismissed the action as to the President, on the authority of Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1866), and as to the other defendants, on the authority of Luftig v. McNamara, 126 U.S. App. D.C. 4, 373 F. 2d 664 (1967), cert. denied 387 U.S. 945 (1967).

By somewhat different paths, the three judges who have heard this appeal from the District Court's judgment of [3] dismissal have concluded unanimously that said appeal should be dismissed.

The first issue presented is whether the case is now moot. Recently, the President has purported formally to end hostilities in Vietnam and Laos. There has been no similar action with respect to Cambodia, another part of Indo-China. The continuation of hostilities there precludes our holding that this case is moot. Furthermore, a declaratory judgment respecting past action might have legal import, inasmuch as, though this point is not specifically pleaded, plaintiffs have a duty under the Constitution to consider whether defendants in continuing the hostilities did commit high crimes and misdemeanors so as to justify an impeachment of the individual defendants, pursuant to United States Constitution, Article I, Section 2, Clause 5.

The second issue is whether the dismissal of the action against the United States was correct for a reason not given by the District Court. We are unanimously of the view that as to the government the dismissal was correct because the sovereign has not consented to be sued.

The third issue is whether the dismissal of the action as to the remaining defendants was proper for another reason not given by the District Court: to wit, that plaintiffs have no standing to sue. None of the judges who heard this appeal is persuaded that plaintiffs are sound in their explicit reliance upon defendants' alleged duty not to interfere with what the complaint alleges is "plaintiffs' Constitutional

Sitting by designation pursuant to Title 28, U.S.C. § 294(d).

NOTE.-Bold figures in brackets indicate page numbers in opinion.

right, as members of the Congress of the United States, to decide whether the United States should fight a war."

Implicit in plaintiffs' contention is their assumption that the Constitution gives to the Congress the exclusive right to decide whether the United States should fight all types of war. Without at this point exhaustively considering all possibilities we are unanimously of the opinion that there [4] are some types of war which, without Congressional approval, the President may begin to wage: for example, he may respond immediately without such approval to a belligerent attack, or in a grave emergency he may, without Congressional approval, take the initiative to wage war. Otherwise the country would be paralyzed. Before Congress could act the nation might be defeated or at least crippled. In such unusual situations necessity confers the requisite authority upon the President. Any other construction of the Constitution would make it self-destructive.

However, plaintiffs are not limited by their own concepts of their standing to sue. We perceive that in respects which they have not alleged they may be entitled to complain. If we, for the moment, assume that defendants' actions in continuing the hostilities in IndoChina were or are beyond the authority conferred upon them by the Constitution, a declaration to that effect would bear upon the duties of plaintiffs to consider whether to impeach defendants, and upon plaintiffs' quite distinct and different duties to make appropriations to support the hostilities, or to take other legislative actions related to such hostilities, such as raising an army or enacting other civil or criminal legislation. In our view, these considerations are sufficient to give plaintiffs a standing to make their complaint. Cf. Flast v. Cohen, 392 U.S. 83 (1968); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150 (1970); Barlow v. Collins, 397 U.S. 159 (1970).

The fourth issue is whether plaintiffs seek adjudication of a "political question" beyond the jurisdiction conferred upon the courts by Article III of the Constitution. Despite Luftig v. McNamara, supra, which admittedly indicates that it is beyond judicial competence to determine the allocation, between the executive and the legislative branches, of the powers to wage war, we are now persuaded that there may be, in some cases, such competence. Massachusetts v. Laird, [5] 451 F.2d 26 (1st Cir. 1971), aff'ng s.c. 327 F.Supp. 378 (D. Mass. 1971); Orlando v. Laird, 443 F.2d 1039 (2nd Cir. 1971). Cf. Powell v. McCormack, 395 U.S. 486 (1969).

Here the critical question to be initially decided is whether the hostilities in Indo-China constitute in the Constitutional sense a "war," both within and beyond the meaning of that term in Article I, Section 8, Clause 11. That the hostilities have been not merely of magnitude but also of long duration is plainly alleged in paragraph 4 of the complaint. It is there said that "For at least the last seven years... the United States . . . has been engaged in Indo-China in the prosecution of the longest and one of the most costly wars in American history. As of the present, one million human beings, including over 50,000 Americans have been killed in the war, and at least one hundred billion dollars has been spent by the United States in and for the prosecution of the war." There would be no insuperable difficulty in a court determining whether such allegations are substantially true. If they are, then in our opinion, as apparently in the