414 U.S. 1304 (1973), A-150, Holtzman v. Schlesinger

Docket Nº:No. A-150
Citation:414 U.S. 1304, 94 S.Ct. 1, 38 L.Ed.2d 18
Party Name:Holtzman v. Schlesinger
Case Date:August 01, 1973
Court:United States Supreme Court

Page 1304

414 U.S. 1304 (1973)

94 S.Ct. 1, 38 L.Ed.2d 18




No. A-150

United States Supreme Court

Aug. 1, 1973



Application to vacate stay of Court of Appeals' order staying District Court's permanent injunction prohibiting respondent Defense Department officials from "participating in any way in military activities in or over Cambodia or releasing any bombs which may fall in Cambodia" is denied, as MR. JUSTICE MARSHALL cannot say, in light of the complexity and importance of the issues posed, that the Court of Appeals abused its discretion. The highly controversial constitutional question involving the two other branches of the Government should follow the regular appellate procedures on the accelerated schedule suggested by the Court of Appeals.

MARSHALL, J., lead opinion

[94 S.Ct. 2] MR. JUSTICE MARSHALL, Circuit Justice.

This case is before me on an application to vacate a stay entered by a three-judge panel of the United States Court of Appeals for the Second Circuit. Applicants, a Congresswoman from New York and several Air Force officers serving in Asia, brought this action to enjoin continued United States air operations over Cambodia. They argue that such military activity has not been authorized by Congress and that, absent such authorization, it violates Art. I, § 8, cl. 11, of the Constitution.1 The United States District Court agreed and, on applicants' motion for summary judgment, permanently enjoined respondents, the Secretary of Defense, the Acting Secretary of the Air Force, and the Deputy Secretary of Defense, from "participating in any way in military activities in or over Cambodia or releasing any bombs which may fall in Cambodia." However, the effective date of the injunction was delayed until July 27, 1973, in order to

Page 1305

give respondents an opportunity to apply to the Court of Appeals for a stay pending appeal. Respondents promptly applied for such a stay, and the application was granted, [94 S.Ct. 3] without opinion, on July 27.2 Applicants then filed this motion to vacate the stay. For the reasons stated below, I am unable to say that the Court of Appeals abused its discretion in staying the District Court's order. In view of the complexity and importance of the issues involved and the absence of authoritative precedent, it would be inappropriate for me, acting as a single Circuit Justice, to vacate the order of the Court of Appeals.


Since the facts of this dispute are on the public record and have been exhaustively canvassed in the District Court's opinion, it would serve no purpose to repeat them in detail here. It suffices to note that publicly acknowledged United States involvement in the Cambodian hostilities began with the President's announcement on April 30, 1970,3 that this country was launching attacks "to clean out major enemy sanctuaries on

Page 1306

the Cambodian-Vietnam border,"4 and that American military action in that country has since met with gradually increasing congressional resistance.

Although United States ground troops had been withdrawn from the Cambodian theater by June 30, 1970, in the summer of that year, Congress enacted the so-called Fulbright Proviso, prohibiting the use of funds for military support of Cambodia.5 The following winter, Congress reenacted the same limitation with the added proviso that

nothing contained in this section shall be construed to prohibit support of actions required to insure the safe and orderly withdrawal or disengagement of U.S. Forces from Southeast Asia, or to aid in the release of Americans held as prisoners of war.

84 Stat. 2037. These provisions have been attached to every subsequent military appropriations act.6 Moreover, in the Special Foreign Assistance Act of 1971, Congress prohibited the use of funds to support American ground combat troops in Cambodia under any circumstances and expressly provided that

[m]ilitary and economic assistance provided by the United States to Cambodia . . . shall not be construed as a commitment by the United States to Cambodia for its defense.7

Congressional efforts to end American air activities in Cambodia intensified after the withdrawal of American ground troops from Vietnam and the return of American prisoners of war. On May 10, 1973, the House of Representatives

Page 1307

refused an administration request to authorize the transfer of $175 million to cover the costs of the Cambodian bombing. See 119 Cong.Rec.15291, 15317-15318 (1973). Shortly thereafter, both Houses of Congress adopted the so-called Eagleton [94 S.Ct. 4] Amendment prohibiting the use of any funds for Cambodian combat operations.8 119 Cong.Rec. 17693, 21173. Although this provision was vetoed by the President, an amendment to the Continuing Appropriations Resolution was ultimately adopted and signed by the President into law which stated:

Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.

H.J.Res. 636, The Joint Resolution Continuing Appropriations for Fiscal Year 1974, Pub.L. 93-52,9 § 108, 87 Stat. 134.

Page 1308


Against this background, applicants forcefully contend that continued United States military activity in Cambodia is illegal. Specifically, they argue that the President is constitutionally disabled in nonemergency situations from exercising the war-making power in the absence of some affirmative action by Congress. See, e.g., Bas v. Tingy, 4 Dall. 37 (1800); Talbot v. Seeman, 1 Cranch 1 (1801); Mitchell v. Laird, 159 U.S.App.D.C. 344, 348, 488 F.2d 611, 615 (1973); Orlando v. Laird, 443 F.2d 1039, 1042 (CA2 1971). Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). In light of the Fulbright Proviso, applicants take the position that Congress has never given its assent for military activity in Cambodia once American ground troops and prisoners of war were extricated from Vietnam.

With the case in this posture, however, it is not for me to resolve definitively the validity of applicants' legal claims. Rather, the only issue now ripe for decision is whether the stay ordered by the Court of Appeals should be vacated. There is, to be sure, no doubt that I have the power, as a single Circuit Justice, to dissolve the stay. See Meredith v. Fair, 83 S.Ct. 10, 9 L.Ed.2d 43 (1962) (Black, J., Circuit Justice); 28 U.S.C. §§ 1651, 2101(f). But, at the same time, the cases make clear that this power should be exercised with the greatest of caution, and should be reserved for exceptional circumstances. Cf. Aberdeen & Rockfish R. Co. v. SCRAP, 409 U.S. 1207, 1218 (1972) (BURGER, C.J., Circuit Justice).

Unfortunately, once these broad propositions are recognized, the prior cases offer little assistance in resolving this issue, which is largely sui generis. There are, of course, many cases suggesting that a Circuit Justice should "balance the equities" when ruling on stay applications,

Page 1309

and determine on which side the risk of irreparable injury weighs most heavily. See, e.g., Long Beach Federal Sav. & Loan Assn. v. Federal Home Loan Bank, 76 S.Ct. 32, 100 L.Ed. 1517 (1955) (DOUGLAS, J., Circuit Justice); Board of Education v. Taylor, 82 S.Ct. 10 (1961) (BRENNAN, J., Circuit Justice); Socialist Labor Party v. Rhodes, 89 S.Ct. 3, 21 L.Ed.2d 72 (1968) (STEWART, J., Circuit Justice).

But, in this case, the problems inherent in attempting to strike an equitable [94 S.Ct. 5] balance between the parties are virtually insurmountable. On the one hand, applicants assert that, if the stay is not vacated, the lives of thousands of Americans and Cambodians will be endangered by the Executive's arguably unconstitutional conduct. Applicants argue, not implausibly, that, if the stay is not vacated, American pilots will be killed or captured, Cambodian civilians will be made refugees, and the property of innocent bystanders will be destroyed.

Yet, on the other hand, respondents argue that, if the bombing is summarily halted, important foreign policy goals of our Government will be severely hampered. Some may greet with considerable skepticism the claim that vital security interests of our country rest on whether the Air Force is permitted to continue bombing for a few more days, particularly in light of respondents' failure to produce affidavits from any responsible Government official asserting that such irreparable injury will occur.10 But it cannot be denied that the assessment of such injury poses the most sensitive of problems, about which Justices of this Court have little or no information or expertise. While we have undoubted authority to judge

Page 1310

the legality of executive action, we are on treacherous ground indeed when we attempt judgments as to its wisdom or necessity.11

The other standards utilized for determining the propriety of a stay are similarly inconclusive. Opinions by Justices of this Court have frequently stated that lower court decisions should be stayed where it is likely that four Members of this Court would vote to grant a writ of certiorari. See, e.g., Edwards v. New York, 76 S.Ct. 1058, 1 L.Ed.2d 17 (1956) (Harlan, J., Circuit Justice); Appalachian Power Co. v. American Institute of C.P.A., 80 S.Ct. 16, 4 L.Ed.2d 30 (1959) (BRENNAN, J., Circuit Justice); English v. Cunningham, 80 S.Ct. 18, 4 L.Ed.2d 42 (1959) (Frankfurter, J., Circuit Justice). But, to some extent, at least, this standard reflects a desire to maintain the status quo in those cases which the Court is likely to hear on the merits. See, e.g., In re Bart, 82 S.Ct. 675, 7 L.Ed.2d 767 (1962) (Warren, C.J., Circuit Justice); McGee v. Eyman, 83 S.Ct. 230, 9 L.Ed.2d 267 (1962) (DOUGLAS, J., Circuit Justice)....

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