484 F.2d 1307 (2nd Cir. 1973), 1132, Holtzman v. Schlesinger

Docket Nº:1132, 73-2094.
Citation:484 F.2d 1307
Party Name:Elizabeth HOLTZMAN, Individually and in her capacity as a member of the United States House of Representatives, et al., Plaintiffs-Appellees, v. James R. SCHLESINGER, Individually and as Secretary of Defense, et al., Defendants-Appellants.
Case Date:August 08, 1973
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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484 F.2d 1307 (2nd Cir. 1973)

Elizabeth HOLTZMAN, Individually and in her capacity as a member of the United States House of Representatives, et al., Plaintiffs-Appellees,


James R. SCHLESINGER, Individually and as Secretary of Defense, et al., Defendants-Appellants.

No. 1132, 73-2094.

United States Court of Appeals, Second Circuit.

Aug. 8, 1973

Argued Aug. 8, 1973.

Burt Neuborne, New York City (Leon Friedman, American Civil Liberties Union, New York City, Norman Siegel and Paul G. Chevigny, New York Civil Liberties Union, New York City, of counsel), for plaintiffs-appellees.

James Dunlop Porter, Jr., Asst. U. S. Atty., Chief, Civil Div., Brooklyn, N. Y. (Robert A. Morse, U. S. Atty., E.D.N. Y.), for defendants-appellants.

Eric M. Lieberman, New York City (Michael Krinsky, New York City, of counsel), for Parren J. Mitchell, and others, as amici curiae.

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Joseph F. McDonald, New York City, for The Lawyers Committee to End the War and Certain Individuals as amici curiae.

Before MULLIGAN, OAKES and TIMBERS, Circuit Judges.

MULLIGAN, Circuit Judge:

This is an appeal from a judgment of the United States District Court, Eastern District of New York, Hon. Orrin G. Judd, District Judge, dated July 25, 1973, 361 F.Supp. 553, granting plaintiffs' motion for summary judgment and providing both declaratory and injunctive relief. The judgment declared that "there is no existing Congressional authority to order military forces into combat in Cambodia or to release bombs over Cambodia, and that military activities in Cambodia by American armed forces are unauthorized and unlawful . . .." The order further enjoined and restrained the named defendants and their officers, agents, servants, employees and attorneys "from participating in any way in military activities in or over Cambodia or releasing any bombs which may fall in Cambodia." The effective date of the injunction was postponed until 4:00 o'clock on July 27, 1973 to provide the defendants with an opportunity to apply to this court for a stay pending appeal. A panel of this court heard oral argument on the stay on the morning of July 27, 1973 and unanimously granted defendants' motion for a stay, setting the time for argument of the appeal on August 13, 1973 which was the first day of sitting of the next panel of this court. The parties were given leave to move for further expedition of the appeal. Plaintiffs then made application to Mr. Justice Marshall of the Supreme Court, Circuit Justice for the Second Circuit, for a vacatur of the stay. Mr. Justice Marshall denied the application to vacate the stay on August 1, 1973 writing an opinion in which he noted that either side could further advance the date of the argument before this court, - U.S. -, 94 S.Ct. 1, 38 L.Ed.2d 18. On the motion of plaintiffs, not opposed by defendants, this court on August 1st further accelerated argument of the appeal to August 8, 1973. On August 2, 1973, plaintiffs made application to Mr. Justice Douglas to vacate the stay and on August 4, 1973 he issued an opinion and order vacating the stay entered by this court. - U.S. -, 94 S.Ct. 8, 38 L.Ed.2d 28. Later in the afternoon of August 4, 1973, Mr. Justice Marshall reinstated the stay announcing that he had polled the other members of the Supreme Court and that they were unanimous in overruling the order of Mr. Justice Douglas. - U.S. -, 94 S.Ct. 11, 38 L.Ed.2d 33. On August 3, 1973, after a hearing before Mr. Justice Douglas, plaintiffs petitioned this court for an en banc hearing of this appeal. By order dated August 6th this motion was denied by the unanimous vote of the five active judges of this court who could be readily contacted. In view of the admonition of Mr. Justice Marshall that it is in the public interest that the issues herein be resolved as expeditiously as possible, the convening of this court en banc could only have delayed a hearing on the merits.

The argument of this appeal was heard on August 8th and to further speed any further appellate review this court filed its judgment in the late afternoon of that day, reversing the judgment below and dismissing the complaint. Judge Oakes dissented. We announced that opinions would promptly follow so that if the Supreme Court did entertain an appeal it might have the benefit of the views of the panel. Even though the exigencies of time preclude the articulation of the majority view as elaborately or completely as might otherwise be appropriate in a case of this significance, it nonetheless represents our considered and deliberate opinion.


At the outset, as the parties agreed below and on the argument on appeal, we should emphasize that we are

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not deciding the wisdom, the propriety or the morality of the war in Indo-China and particularly the on-going bombing in Cambodia. This is the responsibility of the Executive and the Legislative branches of the government. The role of the Judiciary is to determine the legality of the challenged action and the threshold question is whether under the "political question" doctrine we should decline even to do that. Ever since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803) the federal courts have declined to judge some actions of the Executive and some interaction between the Executive and Legislative branches where it is deemed inappropriate that the judiciary intrude. It is not possible or even necessary to define the metes and bounds of that doctrine here. The most authoritative discussion of the subject is found in Mr. Justice Brennan's opinion in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed. 2d 663 (1962) which elaborated criteria that have since guided this court in determining whether a question involving the separation of powers is justiciable or is a political question beyond our purview. In Orlando v. Laird, 443 F.2d 1039 (2d Cir.), cert. denied, 404 U.S. 869, 92 S.Ct. 94, 30 L.Ed.2d 113 (1971), this court held that the question of whether or not Congress was required to take some action to authorize the Indo-China war was justiciable under Baker v. Carr, supra, since there was present a judicially discoverable and manageable issue. See Coleman v. Miller, 307 U.S. 433, 454-455, 59 S.Ct. 972, 83 L.Ed. 1385 (1939). On the basis of evidence produced at the hearings in the district court, this court found Congressional authorization in support of the military operations in Southeast Asia from the beginning, relying on the Tonkin Gulf Resolution of August 10, 1964, plus continuing appropriation bills providing billions of dollars in support of military operations as well as the extension of the Military Selective Service Act. We were careful to note:

Beyond determining that there has been some mutual participation between Congress and the President, which unquestionably exists here, with action by the Congress sufficient to authorize or ratify the military activity at issue, it is clear that the constitutional propriety of the means by which Congress has chosen to ratify and approve the protracted military operations in Southeast Asia is a political question. Id., 443 F.2d at 1043 (emphasis in original).

It is significant that the court noted that the Tonkin Gulf Resolution of August 10, 1964 had since been repealed on December 31, 1970.

In Da Costa v. Laird, 448 F.2d 1368 (2d Cir. 1971), cert. denied, 405 U.S. 979, 92 S.Ct. 1193, 31 L.Ed.2d 255 (1972), this court specifically rejected the contention that the repeal by Congress of the Tonkin Gulf Resolution removed the Congressional authorization previously found sufficient in Orlando. We noted:

As the constitutional propriety of the means by which the Executive and the Legislative branches engaged in mutual participation in prosecuting the military operations in Southeast Asia, is, as we held in Orlando, a political question, so the constitutional propriety of the method and means by which they mutually participate in winding down the conflict and in disengaging the nation from it, is also a political question and outside of the power and competency of the judiciary. Id. at 1370.

The most recent holding of this court now pertinent is Da Costa v. Laird, 471 F.2d 1146 (1973) where an inductee urged that the President's unilateral decision to mine the harbors of North Vietnam and to bomb targets in that country constituted an escalation of the war, which was illegal in the absence of additional Congressional authorization. Judge Kaufman found that this was a political question which was non-justiciable,

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recognizing that the court was incapable of assessing the facts. He stated in part:

Judges, deficient in military knowledge, lacking vital information upon which to assess the nature of battlefield decisions, and sitting thousands of miles from the field of action, cannot reasonably or appropriately determine whether a specific military operation constitutes an "escalation" of the war or is merely a new tactical approach within a continuing strategic plan. What if, for example, the war "de-escalates" so that it is waged as it was prior to the mining of North Vietnam's harbors, and then "escalates" again? Are the courts required to oversee the conduct of the war on a daily basis, away from the scene of action? In this instance, it was the President's view that the mining of North Vietnam's harbors was necessary to preserve the lives of American soliders ( sic) in South Vietnam and to bring the war to a close. History will tell whether or not that assessment was correct, but without the benefit of such extended hindsight we are powerless to know.

We fail to see how the present challenge involving the bombing in Cambodia is in any significant manner distinguishable from the situation discussed by Judge Kaufman in Da Costa v. Laird. Judge Judd...

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