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opinion of President Nixon, as revealed by his use of the word "war” in his second Inaugural Address, delivered January 20, 1973, there has been a war in Indo-China. Nor do we see any difficulty in a court facing up to the question as to whether because of the war's duration and magnitude the President is or was without power to continue the war without Congressional approval.

But the aforesaid question invites inquiry as to whether Congress has given, in a constitutionally satisfactory form, the approval requisite for a war of considerable duration and magnitude. Originally Congress gave what may be argued to have been its approval by the passage of the Gulf of Tonkin Resolution, 78 Stat. 384 (1964). See Orlando v. Laird, supra. However, that resolution cannot serve justification for the indefinite continuance of the war [6] since it was repealed by subsequent Congressional action, 84 Stat. 2055(1971). Apparently recognizing that point, the Government contends that Congressional approval has been given by appropriation acts, by extension of the Selective Service and Training Act, and by other measures.

We are unanimously agreed that it is constitutionally permissible for Congress to use another means than a formal declaration of war to give its approval to a war such as is involved in the protracted and substantial hostilities in Indo-China. See Massachusetts v. Laird and Orlando v. Laird, both supra. Any attempt to require a declaration of war as the only permissible form of assent might involve unforeseeable domestic and international consequences, without any obvious compensating advantages other than that a formal declaration of war does have special solemnity and does present to the legislature an unambiguous choice. While those advantages are not negligible, we deem it a political question, or, to phrase it more accurately, a discretionary matter for Congress to decide in which form, if any, it will give its consent to the continuation of a war already begun by a President acting alone. See Massachusetts v. Laird, supra, s.c., 327 F. Supp. 378 (D. Mass. 1971): Orlando v. Laird, supra; Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y. 1970). That is, we regard the Constitution as contemplating various forms of Congressional assent, and we do not find any authority in the courts to require Congress to employ one rather than another form, if the form chosen by Congress be in itself constitutionally permissible. That conclusion, however, leaves unanswered the further question whether the particular forms which the Government counsel at our bar refer to as having been used by Congress in the Indo-China war are themselves of that character which makes them in toto, if not separately, a constitutionally permissible form of assent. [7]. The overwhelming weight of authority, including some earlier opinions by the present writer, holds that the appropriation, draft extension, and cognate laws enacted with direct or indirect reference to the Indo-China war, (and which have been acutely and comprehensively analyzed by Judge Judd in Berk v. Laird, supra) did constitute a constitutionally permissible form of assent. Massachusetts v. Laird, Orlando v. Laird, Berk v. Laird, all supra, and United States v. Sisson, 294 F. Supp. 511 (D. Mass. 1968). Judge Tamm is content to adhere to that line of authority.

But Chief Judge Bazelon and I now regard that body of authority as unsound. It is, of course, elementary that in many areas of the law

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appropriations by Congress have been construed by the courts as involving Congressional assent to, or ratification of, prior or continuing executive action originally undertaken without Congressional legislative approval. Without a pause to cite or to examine in detail the vast body of cases involving such construction, it is more relevant to emphasize the special problem which is presented when one seeks to spell out from military appropriation acts, extensions of selective service laws, and cognate legislation the purported Congressional approval or ratification of a war already being waged at the direction of the President alone. This court cannot be unmindful of what every schoolboy knows: that in voting to appropriate money or to draft men a Congressman is not necessarily approving of the continuation of a war no matter how specifically the appropriation or draft act refers to that war. A Congressman wholly opposed to the war's commencement and continuation might vote for the military appropriations and for the draft measures because he was unwilling to abandon without support men already fighting. An honorable, decent, compassionate act of aiding those already in peril is no proof of consent to the actions that [8] placed and continued them in that dangerous posture. We should not construe votes cast in pity and piety as though they were votes freely given to express consent. Hence Chief Judge Bazelon and I believe that none of the legislation drawn to the court's attention may serve as a valid assent to the Vietnam war.

Yet it does not follow that plaintiffs are entitled to prevail. When on January 20, 1969 President Nixon took office, and when on the same or even later dates the other individual defendants took their present offices, they were faced with a belligerent situation not of their creation. Obviously, the President could not properly execute the duties of his office or his responsibility as Commander-in-Chief by ordering hostilities to cease on the very day he took office. Even if his predecessors had exceeded their constitutional authority, President Nixon's duty did not go beyond trying, in good faith and to the best of his ability, to bring the war to an end as promptly as was consistent with the safety of those fighting and with a profound concern for the durable interests of the nation-its defense, its honor, its morality.

Whether President Nixon did so proceed is a question which at this stage in history a court is incompetent to answer. A court cannot procure the relevant evidence: some is in the hands of foreign governments, some is privileged. Even if the necessary facts were to be laid before it, a court would not substitute its judgment for that of the President, who has an unusually wide measure of discretion in this area, and who should not be judicially condemned except in a case of clear abuse amounting to bad faith. Otherwise a court would be ignoring the delicacies of diplomatic negotiation, the inevitable bargaining for the best solution of an international conflict, and the scope which in foreign affairs [9] must be allowed to the President if this country is to play a responsible role in the council of the nations.

In short, we are faced with what has traditionally been called a “political question” which is beyond the judicial power conferred by Article III of the United States Constitution. And on that ground the complaint was properly dismissed by the District Court.

Appeal dismissed.

THE LIBRARY OF CONGRESS,
CONGRESSIONAL RESEARCH SERVICE,

Washington, D.C.

1

AN ANALYSIS OF MITCHELL V. LAIRD, A Suit To ENJOIN AND DECLARE

UNCONSTITUTIONAL THE WAR IN VIETNAM In Mitchell v. Laird, No. 71-1510, F. 2d (D.C.Cir. 1973), the United States Court of Appeals for the District of Columbia in an unaminous opinion affirmed a lower court dismissal of the complaint of 13 Members of the House of Representatives alleging that the execution of the war in Indochina by President Nixon and his predecessors was unconstitutional in the absence of a congressional declaration of war or explicit authorization and that such actions "unlawfully impair[ed) and defeat[ed] plaintiffs' constitutional right, as Members of the Congress of the United States, to decide whether the United States should fight a war." [2] The plaintiffs requested that the defendants be enjoined from prosecuting the war and that the court declare that the defendants' actions are violative of article 1, section 8, clause 11 of the Constitution, which gives Congress the power to declare war.

The court initially disposed of some preliminary issues. It ruled that the case was not moot in light of the signing of the peace agreements purporting to end hostilities in Vietnam and Laos because there had been no similar agreement with respect to hostilities in Cambodia which were and are continuing. Furthermore, the court held that a declaratory judgment respecting the legality of past action by the executive might have legal import in that plaintiffs, as Members of Congress, have a duty under the Constitution to consider whether such actions by the defendants justify impeachment. Because of that constitutional duty and their further duties to appropriate moneys for the war and to take other legislative action related to hostilities, the plaintiffs also had standing to sue, according to the court. In finding standing, the court relied on grounds not formally alleged or raised in the lower court and rejected the grounds relied upon by plaintiffs to sustain their complaint, to wit, the defendants' interference with "plaintiffs' constitutional right, as Members of the Congress of the United States, to decide whether the United States should fight a war.” [3] The court found implicit in such a contention the assumption that “the Constitution gives to Congress the exclusive right to decide whether the United States should fight all types of war" (3), and rejected such a contention citing the President's powers in time of attack or other grave emergency to initiate war without prior congressional approval.

The court also held that the dismissal of the United States as defendant was correct because the sovereign had not consented to be sued. This ground for dismissal was not relied upon by the district court.

1 Citations in brackets are to page numbers of the slip opinion.

The remainder of the opinion concerned the issue whether the plaintiffs were seeking adjudication of a "political question" beyond the jurisdiction of the courts. The “political question” doctrine springs from the concept of separation of powers and it is invoked when the questions raised in a lawsuit are incapable of judicial resolution or inappropriate in light of the article III powers of the judiciary compared with the powers and prerogatives of coordinate branches of the government. The leading case in which the contours of the 'political question” doctrine were examined is Baker v. Carr, 369 U.S. 186 (1962), the reapportionment landmark decision. There, Justice Brennan, speaking for the majority, stated:

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 identifies 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 judically 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.

Unless one of these formulations is inextricable from the case at bar, there should be no dismissal for nonjusticiability on the ground of a political question's presence. 369 U.S. at 217.

In Mitchell, the Court began its discussion of the "political question” issue by holding that, despite contrary authority, there may be cases in which the courts are competent to determine the relative powers of the legislative and executive branches to wage war. The Court stated that the questions whether the hostilities in Vietnam are a "war” within the meaning of article I, section 8, clause 11 of the Constitution and whether the President is or was without power, because of the war's duration and magnitude, to continue it without the approval of Congress posed no insuperable difficulties for judicial determination. The latter question prompted inquiry into whether Congress gave its approval to the war in a constitutionally satisfactory form.

The Court held that there are alternative constitutionally permissible means of approval for a war than formal declaration and that it is a "discretionary matter for Congress to decide in which form, if any, it will give its consent to the continuation of a war already begun by a President acting alone . . . . That is, we regard the Constitution as contemplating various forms of congressional assent, and we do not find any authority in the courts to require Congress to employ one rather than another form, if the form chosen by Congress be in itself constitutionally permissible." [6] So holding, it went on, however, to rule-contrary to what it termed the "overwhelming weight of authority” [7]—that the various legislative actions taken by Congress during the period of the war in Indochina, that is, military appropriations, extensions of the draft, did not constitute assent to the war. As stated by the Court:

A Congressman wholly opposed to the war's commencement and continuation might vote for the military appropriations and for the draft measures because he was unwilling to abandon without support men already fighting. An honorable

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decent, compassionate act of aiding those already in peril is no proof of consent to the actions that placed and continued them in that dangerous posture. We should not construe votes cast in pity and piety as though they were votes freely given to express consent. Hence Chief Judge Bazelon and I (Judge Charles Wyzanski) believe that none of the legislation drawn to the Court's attention may serve as a valid assent to the Vietnam war. [7-8]. (Judge Tamm, the third member of the panel, was of the opinion that such legislative action did constitute Congressional assent.]

However, it was the posture of the case and the circumstances which prevailed when the defendants assumed office which led the Court to its ultimate conclusion that the plaintiffs' complaint presented a "political question" not justiciable in the courts. The Court noted that [e]ven if his predecessors had exceeded their constitutional authority, President Nixon's duty did not go beyond trying, in good faith and to the best of his ability, to bring the war to an end as promptly as was consistent with the safety of those fighting and with a profound concern for the durable interests of the Nation-its defense, its honor, its morality.” [8] Citing factors similar to those outlined in Baker v. Carr, supra, the Court concluded:

Whether President Nixon did so proceed is a question which at this stage in history a court is incompetent to answer. A court cannot procure the relevant evidence: some is in the hands of foreign governments, some is privileged. Even if the necessary facts were to be laid before it, a court would not substitute its judgment for that of the President, who has an unusually wide measure of discretion in this area, and who should not be judicially condemned except in a case of clear abuse amounting to bad faith. Otherwise a court would be ignoring the delicacies of diplomatic negotiation, the inevitable bargaining for the best solution of an international conflict, and the scope which in foreign affairs must be allowed to the President if this country is to play a responsible role in the council of the nations.

In short, we are faced with what has traditionally been called a “political question” which is beyond the judicial power conferred by Article III of the United States Constitution. And on that ground the complaint was properly dismissed by the District Court. [9]

RICHARD EHLKE,

Legislative Attorney,
American Law Division.

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