488 F.2d 611 (D.C. Cir. 1973), 71-1510, Mitchell v. Laird

Docket Nº71-1510.
Citation488 F.2d 611
Party NameThe Honorable Parren J. MITCHELL et al., Appellants, v. Melvin R. LAIRD et al.
Case DateMarch 20, 1973
CourtUnited States Courts of Appeals, Court of Appeals for the District of Columbia Circuit

Page 611

488 F.2d 611 (D.C. Cir. 1973)

The Honorable Parren J. MITCHELL et al., Appellants,

v.

Melvin R. LAIRD et al.

No. 71-1510.

United States Court of Appeals, District of Columbia Circuit.

March 20, 1973

Argued Nov. 6, 1972.

Rehearing En Banc Denied June 21, 1973.

Page 612

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.

Page 613

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

Page 614

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

Page 615

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,...

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65 practice notes
  • 478 F.Supp. 646 (D. Puerto Rico 1979), Civ. 78-323, Romero-Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • September 17, 1979
    ...branches of our government responsible for the conduct of our Nation's foreign affairs? See Mitchell v. Laird, 159 U.S.App.D.C. 344, 349, 488 F.2d 611, 616 (D.C. Cir., 1973); Pauling v. McNamara, 118 U.S.App.D.C. 50, 52-3, 331 F.2d 796, 798-9 (D.C. Cir., 1964), cert. den. 377 U.S. 933, 84 S......
  • 752 F.Supp. 509 (D.D.C. 1990), Civ. A. 90-2792, Ange v. Bush
    • United States
    • Federal Cases United States District Courts District of Columbia
    • December 13, 1990
    ...the allocation provided by the framers of the Constitution in the text of that document is far from clear. See e.g., Mitchell v. Laird, 488 F.2d 611 (D.C.Cir.1973) (U.S. military involvement in Indochina); Dellums v. Bush, No. 90-2866 (D.D.C. filed Nov. 20, 1990) (Saudi Arabia/Persian Gulf ......
  • 78 F.R.D. 531 (D.Puerto Rico 1978), Civ. 78-323, Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • April 25, 1978
    ...of this Court's jurisdiction. See Kennedy v. Sampson, 167 U.S.App.D.C. 192, 511 F.2d 430 (1974); Mitchell v. Laird, 159 U.S.App.D.C. 344, 488 F.2d 611 II. Request for Class Certification in Civil Number 78-377: Plaintiffs describe the purported class as the " past, present and future r......
  • 80 F.R.D. 99 (D.Hawai
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • September 28, 1978
    ...F.2d 430 (1974) (challenged action undermined the effectiveness of his legislative vote); Mitchell v. Laird, 159 U.S.App.D.C. 344, 346, 488 F.2d 611, 613 (1973) (legislator has a duty to investigate the acts of the executive in relation to possible impeachment). Plaintiff has not alleged th......
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49 cases
  • 478 F.Supp. 646 (D. Puerto Rico 1979), Civ. 78-323, Romero-Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • September 17, 1979
    ...branches of our government responsible for the conduct of our Nation's foreign affairs? See Mitchell v. Laird, 159 U.S.App.D.C. 344, 349, 488 F.2d 611, 616 (D.C. Cir., 1973); Pauling v. McNamara, 118 U.S.App.D.C. 50, 52-3, 331 F.2d 796, 798-9 (D.C. Cir., 1964), cert. den. 377 U.S. 933, 84 S......
  • 752 F.Supp. 509 (D.D.C. 1990), Civ. A. 90-2792, Ange v. Bush
    • United States
    • Federal Cases United States District Courts District of Columbia
    • December 13, 1990
    ...the allocation provided by the framers of the Constitution in the text of that document is far from clear. See e.g., Mitchell v. Laird, 488 F.2d 611 (D.C.Cir.1973) (U.S. military involvement in Indochina); Dellums v. Bush, No. 90-2866 (D.D.C. filed Nov. 20, 1990) (Saudi Arabia/Persian Gulf ......
  • 78 F.R.D. 531 (D.Puerto Rico 1978), Civ. 78-323, Barcelo v. Brown
    • United States
    • Federal Cases United States District Courts 1st Circuit District of Puerto Rico
    • April 25, 1978
    ...of this Court's jurisdiction. See Kennedy v. Sampson, 167 U.S.App.D.C. 192, 511 F.2d 430 (1974); Mitchell v. Laird, 159 U.S.App.D.C. 344, 488 F.2d 611 II. Request for Class Certification in Civil Number 78-377: Plaintiffs describe the purported class as the " past, present and future r......
  • 80 F.R.D. 99 (D.Hawai
    • United States
    • Federal Cases United States District Courts 9th Circuit
    • September 28, 1978
    ...F.2d 430 (1974) (challenged action undermined the effectiveness of his legislative vote); Mitchell v. Laird, 159 U.S.App.D.C. 344, 346, 488 F.2d 611, 613 (1973) (legislator has a duty to investigate the acts of the executive in relation to possible impeachment). Plaintiff has not alleged th......
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16 books & journal articles
  • Civilians in cyberwarfare: conscripts.
    • United States
    • Vanderbilt Journal of Transnational Law Vol. 43 Nbr. 4, October 2010
    • October 1, 2010
    ...supra note 8, at 63 (noting the insignificance of declarations of war since the end of World War II). (250.) See Mitchell v. Laird, 488 F.2d 611, 615 (D.C. Cir. 1973) (discussing the ability of Congress to approve war other than by a formal declaration). The Vietnam Era and later cases pars......
  • Banging on the backdoor draft: the constitutional validity of stop-loss in the military.
    • United States
    • William and Mary Law Review Vol. 47 Nbr. 3, December 2005
    • December 1, 2005
    ...military operations in Southeast Asia in a $700 million appropriation in connection with those operations). (146.) Mitchell v. Laird, 488 F.2d 611,615 (D.C. Cir. 1973); see also War Powers Resolution, 50 U.S.C. [section] 1547(a) (2000) ("Authority to introduce United States Armed Force......
  • Is suspension a political question?
    • United States
    • Stanford Law Review Vol. 59 Nbr. 2, November 2006
    • November 1, 2006
    ...that there is no general and unreviewable grant of a "war power" to the executive). (374.) See, e.g., Mitchell v. Laird, 488 F.2d 611 (D.C. Cir. 1973) (dismissing challenge to commitment of troops to Indochina); Lowry v. Reagan, 676 F. Supp. 333 (D.D.C. 1987) (dismissing challenge......
  • The new law of legislative standing.
    • United States
    • Stanford Law Review Vol. 54 Nbr. 1, October 2001
    • October 1, 2001
    ...no-standing approach to congressional suits to the more moderate position adopted by the D.C. Circuit). (11.) See Mitchell v. Laird, 488 F.2d 611, 614 (D.C. Cir. 1973). (12.) Raines v. Byrd, 521 U.S. 811, 823 (1997). It is obvious, then, that our holding in Coleman stands ... for the propos......
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