Mitchell v. Laird

Decision Date20 March 1973
Docket NumberNo. 71-1510.,71-1510.
Citation488 F.2d 611
PartiesThe Honorable Parren J. MITCHELL et al., Appellants, v. Melvin R. LAIRD et al.
CourtU.S. Court of Appeals — District of Columbia Circuit

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

Gregory Brady, Asst. U. S. Atty. with whom Harold H. Titus, Jr., U. S. Atty., John A. Terry, Michael A. Katz, Asst. U. S. Attys. and Hermine Herta Meyer, Atty., Dept. of Justice, were on the brief, for appellees. Thomas A. Flannery, U. S. Atty. at the time the record was filed and Walter H. Fleischer, Atty., Dept. of Justice, also entered appearances for appellees.

Before BAZELON, Chief Judge, TAMM, Circuit Judge, and WYZANSKI,* Senior United States District Judge for the District of Massachusetts.

Rehearing En Banc Denied June 21, 1973.

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, 18 L.Ed. 437 (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, 87 S.Ct. 2078, 18 L.Ed.2d 1332 (1967).

By somewhat different paths, the three judges who have heard this appeal from the District Court's judgment of 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 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 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 Indo-China 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, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968); Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 90 S.Ct. 827, 25 L.Ed.2d 184 (1970); Barlow v. Collins, 397 U.S. 159, 90 S.Ct. 832, 25 L. Ed.2d 192 (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, 451 F.2d 26 (1st Cir. 1971), aff'g 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, 89 S.Ct. 1944, 23 L.Ed.2d 491 (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 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 as justification for the indefinite continuance of the war 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, aff'g 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...

To continue reading

Request your trial
44 cases
  • Harrington v. Bush
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 18, 1977
    ...of thirteen members of the House of Representatives to seek a declaratory judgment that the war in Indo-China was unconstitutional. In Mitchell the court based its grant of standing in part on the ground that "a declaration (of unconstitutionality) would bear upon the duties of plaintiffs t......
  • U.S. ex rel. New v. Rumsfeld
    • United States
    • U.S. District Court — District of Columbia
    • December 22, 2004
    ...the President purportedly in his role as commander-in-chief are beyond the purview of the judicial branch, see, e.g., Mitchell v. Laird, 488 F.2d 611, 614 (D.C.Cir.1973); Flynt v. Rumsfeld, 245 F.Supp.2d 94, 110 (D.D.C.2003), aff'd on other grounds 355 F.3d 697 (D.C.Cir.2004), the clause it......
  • Moore v. U.S. House of Representatives
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • May 4, 1984
    ...Marbury v. Madison, supra, 5 U.S. (1 Cranch) at 170, 2 L.Ed. 60. As the cases that have been brought before us since Mitchell v. Laird, 488 F.2d 611 (D.C.Cir.1973), demonstrate, that principle is reduced to meaninglessness, and the system of checks and balances replaced by a system of judic......
  • Blessing v. United States
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • April 19, 1978
    ...as to be nonjusticiable political questions, much less not amenable to a suit for damages. See, e. g., Mitchell v. Laird, 159 U.S.App.D.C. 344, 488 F.2d 611 (1973); Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir.), cert. denied, 416 U.S. 936, 94 S.Ct. 1935, 40 L.Ed.2d 286 (1973). Thus, in F......
  • Request a trial to view additional results
9 books & journal articles
  • Sovereign Immunity and the Uses of History
    • United States
    • University of Nebraska - Lincoln Nebraska Law Review No. 81, 2021
    • Invalid date
    ...interpretations? 491. See infra notes 515-18 and accompanying text. 492. Atlee v. Richardson, 411 U.S. 911 (1973); Mitchell v. Laird, 488 F.2d 611, 615 (D.C. Cir. 1973); Holtzman v. Schlesinger, 484 F.2d 1307, 1309-12 (2d Cir. 1973), cert. denied, 416 U.S. 936 (1974); Orlando v. Laird, 443 ......
  • The Political Remedies Doctrine
    • United States
    • Emory University School of Law Emory Law Journal No. 71-1, 2021
    • Invalid date
    ...Cir. 2003) (suit by soldiers, parents of soldiers, and members of the House seeking to prevent the war against Iraq); Mitchell v. Laird, 488 F.2d 611, 613 (D.C. Cir. 1973) (suit by members of the House of Representatives challenging the Vietnam War, waged without a declaration of war by Con......
  • Judicial review under a British war powers act.
    • United States
    • Vanderbilt Journal of Transnational Law Vol. 43 No. 3, May 2010
    • May 1, 2010
    ...323 F.3d 133 (1st Cir. 2003); Campbell v. Clinton, 203 F.3d 19 (D.C. Cir. 2000), cert. denied, 531 U.S. 815 (2000); Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973); Da Costa v. Laird, 448 F.2d. 1368 (2nd Cir. 1971), cert. denied, 405 U.S. 979 (1972); Orlando v. Laird, 443 F.2d 1039 (2nd Ci......
  • Broken Promises or Unrealistic Expectations?: Comparing the Bush and Obama Administrations on Counterterrorism
    • United States
    • Transnational Law & Contemporary Problems No. 20-2, October 2011
    • January 1, 2011
    ...special three-judge panel to decide whether Congressional funding of Vietnam War violated the Declare War Clause). Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973), arguably stands for a contrary proposition, as that court was willing to determine whether the fighting in Indo-China constitu......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT