443 F.2d 1039 (2nd Cir. 1971), 477, Orlando v. Laird

Docket Nº477, 478, 35270, 35535.
Citation443 F.2d 1039
Party NameSalvatore ORLANDO, Plaintiff-Appellant, v. Melvin LAIRD, individually and as Secretary of Defense of the United States;and Stanley R. Resor, individually and as Secretary of the Army of the UnitedStates, Defendants-Appellees. Malcolm A. BERK, Plaintiff-Appellant, v. Melvin LAIRD, individually, and as Secretary of Defense of the United States, Stanl
Case DateApril 20, 1971
CourtUnited States Courts of Appeals, Court of Appeals for the Second Circuit

Page 1039

443 F.2d 1039 (2nd Cir. 1971)

Salvatore ORLANDO, Plaintiff-Appellant,

v.

Melvin LAIRD, individually and as Secretary of Defense of the United States;and Stanley R. Resor, individually and as Secretary of the Army of the UnitedStates, Defendants-Appellees.

Malcolm A. BERK, Plaintiff-Appellant,

v.

Melvin LAIRD, individually, and as Secretary of Defense of the United States, Stanley R. Resor, individually, and as Secretary of the Army of the UnitedStates, and Col. T. F. Spencer, individually, and as Chief of Staff, UnitedStates ArmyEngineers Center, Fort Belvoir, Defendants-Appellees.

Nos. 477, 478, 35270, 35535.

United States Court of Appeals, Second Circuit.

April 20, 1971

Argued March 3, 1971.

Page 1040

Leon Friedman, New York Civil Liberties Union, New York City (Burt Neuborne, Kunstler, Kunstler & Hyman, Norman Dorsen and Kay Ellen Hayes, New York City, on the brief), for plaintiff-appellant Salvatore Orlando.

Norman Dorsen, New York City (Leon Friedman, Burt Neuborne, New York Civil Liberties Union, Theodore C. Sorensen, Kay Ellen Hayes, and Marc Luxemberg, New York City, on the brief), for plaintiff-appellant Malcolm A. Berk.

Edward R. Neaher, U.S. Atty., E.D. New York (Robert A. Morse, Chief Asst. U.S. Atty., David G. Trager, Edward R. Korman, and James D. Porter, Jr., Asst. U.S. Attys., E.D. New York, on the brief), for defendants-appellees.

Before LUMBARD, Chief Judge, and KAUFMAN and ANDERSON, Circuit judges.

ANDERSON, Circuit Judge:

Shortly after receiving orders to report for transfer to Vietnam, Pfc. Malcolm A. Berk and Sp. E5 Salvatore Orlando, enlistees in the United States Army, commenced separate actions in June, 1970, seeking to enjoin the Secretary of Defense, the Secretary of the Army and the commanding officers, who signed their deployment orders, from enforcing them. The plaintiffs-appellants contended that these executive officers exceeded their constitutional authority by ordering them to participate in a war not properly authorized by Congress.

In Orlando's case the district court held in abeyance his motion for a preliminary injunction pending disposition in this court of Berk's expedited appeal from a denial of the same preliminary relief. On June 19, 1970 we affirmed the denial of a preliminary injunction in Berk v. Laird, 429 F.2d 302 (2 Cir. 1970), but held that Berk's claim that orders to fight must be authorized by joint executive-legislative action was justiciable. The case was remanded for a hearing on his application for a permanent injunction. We held that the war declaring power of Congress, enumerated in Article I, section 8, of the Constitution, contains a 'discoverable standard calling for some mutual participation by Congress,' and directed that Berk be given an opportunity 'to provide a method for resolving the question of when specified joint legislative-executive action is sufficient to authorize various levels of military activity,' and thereby escape application of the political question doctrine to his claim that congressional participation has been in this instance, insufficient.

After a hearing on June 23, 1970, Judge Dooling in the district court denied Orlando's motion for a preliminary injunction on the ground that his deployment orders were constitutionally authorized, because Congress, by 'appropriating the nation's treasure and conscripting its manpower,' had 'furnished forth the sinew of war' and because 'the reality of the collaborative action of the executive and the legislative required by the Constitution has been present from the earliest stages.' Orlando v. Laird, 317 F.Supp. 1013, 1019 (E.D.N.Y.1970).

On remand of Berk's action, Judge Judd of the district court granted the

Page 1041

appellees' motion for summary judgment. Finding that there had been joint action by the President and Congress, he ruled that the method of congressional collaboration was a political question. Berk v. Laird, 317 F.Supp. 715, 728 (E.D.N.Y.1970).

The appellants contend that the respective rulings of the district court that congressional authorization could be expressed through appropriations and other supporting legislation misconstrue the war declaring clause, and alternatively, that congressional enactments relating to Vietnam were incorrectly interpreted.

It is the appellants' position that the sufficiency of congressional authorization is a matter within judicial competence because that question can be resolved by 'judicially discoverable and manageable standards' dictated by the congressional power 'to declare War.' See Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). They interpret the constitutional provision to require an express and explicit congressional authorization of the Vietnam hostilities though not necessarily in the words, 'We declare that the United States of America is at war with North Vietnam.' In support of this construction they point out that the original intent of the clause was to place responsibility for the initiation of war upon the body most responsive to popular will and argue that historical developments have not altered the need for significant congressional participation in such commitments of national resources. They further assert that, without a requirement of express and explicit congressional authorization, developments committing the nation to war, as a fait accompli, became the inevitable adjuncts of presidential direction of foreign policy, and, because military appropriations and other war-implementing enactments lack an explicit authorization of particular hostilities, they cannot, as a matter of law, be considered sufficient.

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