Atlee v. Laird

Decision Date21 August 1972
Docket NumberCiv. A. No. 71-2324,72-891.
PartiesJohn S. ATLEE et al. v. Melvin LAIRD, Individually and as Secretary of Defense, et al. Fred R. BERNATH et al. v. Richard M. NIXON, Individually and as President of the United States, et al.
CourtU.S. District Court — Eastern District of Pennsylvania

COPYRIGHT MATERIAL OMITTED

David Kairys, David Rudovsky, Kairys & Rudovsky, Philadelphia, Pa., Victor Rabinowitz, Michael Krinsky, Rabinowitz, Boudin & Standard, New York City, Jack Wysoker, Perth Amboy, N. J., for plaintiffs.

Louis C. Bechtle, U. S. Atty., Carl J. Melone, Warren D. Mulloy, John T. Thorn, Asst. U. S. Attys., Philadelphia, Pa., Harlington Wood, Jr., Asst. Atty. Gen., Harland F. Leathers, G. Michael Fenner, Dept. of Justice, Washington, D. C., for defendants.

Harold E. Kohn, Stuart H. Savett, Donald L. Weinberg, Philadelphia, Pa., for intervenor plaintiffs.

Before ADAMS, Circuit Judge, LORD, III, Chief District Judge, and HUYETT, District Judge.

ADAMS, Circuit Judge.

Historically, the power of the federal courts to adjudicate disputes has been delimited by constitutional and legislative constraints, such as the "case or controversy" test set forth in the Constitution and the "amount in controversy" standard established by Congress. In addition, there have been restraints developed by the courts themselves, such as the "political question" doctrine.

This case places before us the issue whether the Court having jurisdiction of the dispute ought to proceed to adjudicate it or ought to eschew this task on the ground that the matter constitutes a political question.

The seven named plaintiffs in this suit filed a class action on September 24, 19711 asking that a three-judge district court be convened for the purpose of determining the constitutionality of the war in Southeast Asia. Specifically, they have alleged that American participation in, and the expenditure of funds for, the war contravene various constitutional provisions, and that the conduct of the war is violative of the treaties to which the United States is a signatory. Plaintiffs have asked this Court essentially to declare the illegality of the war and to enjoin permanently the expenditure of funds supporting the war, the spending of money for weapons that may be found illegal under the international rules of war, and the use of military tactics that may violate those rules.

On behalf of the defendants here, the Government filed a motion with the single-judge court to dismiss. With regard to the President, the district judge granted the motion, D.C., 336 F.Supp. 790. However, in an opinion carefully delineating those issues which the single judge, as opposed to the three-judge court, had the power to consider, the motion pertaining to the Secretary of Defense was denied, D.C., 339 F.Supp. 1347.2 Status as amici curiae has been granted to a number of groups, and this Court now has pending before it a motion to intervene as plaintiffs filed by several individuals of, or approaching, draft age that we hereby grant, and the Government's motion to dismiss, or in the alternative to dissolve, the three-judge court.

The Government has advanced four grounds for dismissing the complaint3, but at oral argument relied primarily on the contention that the case is nonjusticiable because it asks this Court to decide a political question. In view of the result reached, we consider only the justiciability issue.

I. BACKGROUND OF POLITICAL QUESTION DOCTRINE

An analysis of the political question doctrine should first recognize that the judiciary clause of the Constitution gives no explicit support to the theory that federal courts may properly decline to hear cases or decide particular issues merely because they involve political questions. The relevant provision contained in Art. III, Sec. 2 is that the judicial power shall extend to cases and controversies. No mention is made that certain disputes otherwise subject to the judicial power should not be adjudicated.

However, the political question doctrine was recognized before the enactment of the Constitution and frequently by the Supreme Court in the period shortly after the adoption of the Constitution.4

In the landmark case of Marbury v. Madison, 1 Cranch (5 U.S.) 137, 165-166, 2 L.Ed. 60 (1803), deciding whether the refusal of the Secretary of State to deliver commissions appointing justices of the peace was reviewable by the federal courts, Chief Justice Marshall stated that the question whether the legality of an act of the head of a department be examinable must depend on the nature of that act. He continued that if some acts be examinable, and others not, there must be some rule to guide the court in the exercise of its jurisdiction; that there may be difficulty in applying the rule in particular cases; but there cannot be much difficulty in laying down the rule. He then added:

"By the constitution of the United States, the President is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.
"In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive." Id. at 165-166.

Thus, Marbury may be considered the genesis of the political question doctrine in the federal courts.5

II. CASE BY CASE DEVELOPMENT OF THE POLITICAL QUESTION DOCTRINE

The first case to discuss in detail the application of the political question doctrine was Luther v. Borden, 7 How. (48 U.S.) 1, 12 L.Ed. 581 (1849).6 Luther brought a trespass action against Borden and others for breaking and entering Luther's house. Borden defended on the grounds that an insurrection to overthrow the government of Rhode Island was taking place, that martial law had been declared by the General Assembly, that Luther was aiding and abetting the insurrection and that the defendants were members of the local infantry ordered to arrest the plaintiff and if necessary to break and enter his dwelling. Luther's reply was based on the assertion that prior to the acts complained of, the government, under whose authority his house was broken into, had been displaced by the people of Rhode Island, and that Luther was acting in support of the new government. The form of the original charter government of Rhode Island had not been significantly changed since its inception in 1663. By 1840, a number of citizens led by Dorr were disenchanted with the existing form of government and called a convention, unauthorized by the legislature, to write a new constitution to be submitted to the people. After the votes were returned, the convention declared the new constitution to be adopted, and communicated the decision to the governor so that he might place it before the charter legislature. In addition, the convention ordered elections for various state posts, and the representatives thus elected organized a new government to supercede that established by the charter.

With this factual background, the Supreme Court was asked to decide which of the two Rhode Island governments was legitimate. This they refused to do. Rather, they examined the decisions of the Rhode Island Supreme Court and concluded that they were bound by that court's interpretation of the Rhode Island laws and constitution. And when confronted with the suggestion that they make their own determination based on the right of the people to a republican form of government, the Court answered that the Constitution reposes the protection of that right solely with the legislative and executive—the political— branches of the federal government.

The Court justified on a number of grounds its refusal to decide the question of legitimacy on the merits. First, there were no criteria by which a federal court could determine who should be eligible to vote on the question which government ought to be recognized. More importantly, the Court held that, by its terms, Article 4, Section 4 of the Constitution committed to Congress the decision whether a particular government is the established one in a State. Concluding its opinion, the Court stated:

"Much of the argument on the part of the plaintiff turned upon political rights and political questions, upon which the court has been urged to express an opinion. We decline doing so. The high power has been conferred on this court of passing judgment upon the acts of the State sovereignties, and of the legislative and executive branches of the federal government, and of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States. This tribunal, therefore, should be the last to overstep the boundaries which limit its own jurisdiction. And while it should always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in discussions which properly belong to other forums." 7 How. (48 U.S.) at 46-47, 12 L.Ed. 581.

The holding of Luther v. Borden that the Guarantee Clause presents a political question has been reaffirmed time after time by the Supreme Court.7

Although not specifically dealing with the political question principle, the Prize Cases, 67 U.S. 635, 17 L.Ed. 459 (1863), relied upon by the plaintiffs, are instructive in tracing the development of the doctrine. In April, 1861, President Lincoln declared a blockade against the...

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