DaCosta v. Laird, 189
| Decision Date | 01 October 1971 |
| Docket Number | Docket 71-1724.,No. 189,189 |
| Citation | 448 F.2d 1368 |
| Parties | Ernest DaCOSTA, Plaintiff-Appellant, v. Melvin LAIRD, individually, and as Secretary of Defense of the United States, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Second Circuit |
Leon Friedman, New York City (Burt Neuborne, New York Civil Liberties Union, and Norman Dorsen, New York University Law School, New York City, on the brief), for appellant.
Edward R. Korman, Asst. U. S. Atty., Eastern District of New York (Robert A. Morse, U. S. Atty., David G. Trager and James D. Porter, Jr., Asst. U. S. Attys., Eastern District of New York, on the brief), for appellees.
Before KAUFMAN, ANDERSON and FEINBERG, Circuit Judges.
The plaintiff-appellant was drafted into the U. S. Army on December 3, 1970 for a two year period of service. After completing infantry training, he received orders to report for assignment to Vietnam. On July 23, 1971, he brought this action in the district court to prevent the defendants from enforcing the orders on the ground that they lacked authority to issue them. The plaintiff claimed that because Congress had never declared war against North Vietnam, the defendants' actions were in disregard of the Constitution. The district court granted the defendants' motion for summary judgment on the authority of this court's decision in Orlando v. Laird, 443 F.2d 1039 (2 Cir. 1971). It is our opinion that this case is governed by Orlando, and we affirm the judgment of the district court.
The appellant argues that the repeal by Congress of the Gulf of Tonkin Resolution removed one of the two vital supports which, he asserts, this court considered to be essential prerequisites to its conclusion in Orlando that there was legislative conduct equivalent to a declaration of war — the other support was a series of appropriations and Selective Service Acts for the Vietnam conflict. This is, however, a misconstruction of the Orlando decision. We said:
443 F.2d at 1043.
In other words, there was sufficient legislative action in extending the Selective Service Act and in appropriating billions of dollars to carry on military and naval operations in Vietnam to ratify and approve the measures taken by the Executive, even in the absence of the Gulf of Tonkin Resolution. That resolution came at a time when a police action was being escalated into a large scale conflict and was a clear expression of congressional intent to support the Executive's move in that direction. Its repeal did not wipe out its history nor could it have the effect of a nunc pro tunc action. The Conference Committee recommending the repeal amendment in 1970, which was passed, expressed the reason for it as follows: "Recent legislation and Executive statements make the 1964 resolution unnecessary for the prosecution of U. S. foreign policy," Cong.Rep. No. 1805, 91st Cong., 2nd Sess., U.S. Code Cong. & Ad.News, p. 6069 (1970). It was not the intent of Congress in passing the repeal amendment to bring all military operations in Vietnam to an abrupt halt. The Executive was then endeavoring to unwind the conflict as rapidly as it was feasible to do so. It has steadily pursued that objective up to the present time and has declared it to be its intention to continue the withdrawals of combat forces. If the Executive were now escalating the prolonged struggle instead of decreasing it, additional supporting action by the Legislative Branch over what is presently afforded, might well be required. But that is not the case before us.
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