Berk v. Laird, 900

• Decision Date: 19 June 1970
• Docket Number: No. 900,Docket 35007.,900
• Citation: 429 F.2d 302
• Parties: Malcolm A. BERK, Plaintiff-Appellant, v. Melvin LAIRD, individually, and as Secretary of Defense of the United States, Stanley S. Resor, individually, and as Secretary of the Army of the United States, and Col. T. F. Spencer, individually, and as Chief of Staff, United States Army Engineers Center, Fort Belvoir, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

429 F.2d 302 (1970)

Malcolm A. BERK, Plaintiff-Appellant, v. Melvin LAIRD, individually, and as Secretary of Defense of the United States, Stanley S. Resor, individually, and as Secretary of the Army of the United States, and Col. T. F. Spencer, individually, and as Chief of Staff, United States Army Engineers Center, Fort Belvoir, Defendants-Appellees.

No. 900, Docket 35007.

United States Court of Appeals, Second Circuit.

Argued June 17, 1970.

Decided June 19, 1970.

Theodore C. Sorensen, New York City (Peter P. Smith, New York City, on the brief), and Leon Friedman, New York City (Burt Neuborne, New York Civil Liberties Union, New York City, on the brief), for plaintiff-appellant.

Norman Dorsen, New York City, for 101 lawyers and law professors, amici curiae.

Edward R. Neaher, U. S. Atty., Eastern District of New York (Robert A. Morse, Chief Asst. U. S. Atty., James D. Porter, Jr., Chief, Civil Division, Asst. U. S. Atty., Cyril Hyman and Robert Rosenthal, Asst. U. S. Attys., Eastern District of New York, on the brief), for defendants-appellees.

Before ANDERSON and FEINBERG, Circuit Judges, and MacMAHON,^* District Judge.

ANDERSON, Circuit Judge.

Malcolm A. Berk, a private first class enlisted in the United States Army, received orders on April 29, 1970, requiring him to report to Fort Dix, New Jersey, for dispatch to South Vietnam. On June 3, he commenced on action against the Secretary of Defense, Secretary of the Army, and the officer who signed his orders, contending that these executive officials of the United States Government have exceeded their constitutional authority by commanding him to participate in military activity not properly authorized by Congress. His complaint alleges that these orders violate rights protected by the Fifth, Ninth, Tenth and Fourteenth Amendments to the Constitution, as well as § 5 of the New York Civil Rights Law, McKinney's Consol.Laws, c. 6,¹ and that jurisdiction is appropriate under 28 U. S.C. § 1331(a).² Berk seeks a judgment declaring that his superiors are without authority to order him to South Vietnam or Cambodia,³ and he also demands a permanent injunction forbidding them to do so.

At a hearing on June 5, the district court denied a preliminary injunction on the grounds that the balance of equities inclined toward the Government because, among other reasons, if Berk succeeded in obtaining a preliminary injunction, there would be a flood of similar applications which would have to be granted, thereby causing "a drastic interference with the war effort" by a decision on a preliminary motion. The court also felt that there was "less than an even chance for the plaintiff to succeed even in establishing the right to review in this case."

As the appellant correctly points out, the issue on this appeal is not whether the courts are empowered to "second-guess" the President in his decision to commit the armed forces to action, but whether they have the power to make a particular kind of constitutional decision involving the division of powers between legislative and executive branches. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). The appellees' position is essentially that the President's authority as Commander in Chief, in the absence of a declared war, is co-extensive with his broad and unitary power in the field of foreign affairs. See United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 81 L.Ed. 255 (1936); cf. Johnson v. Eisentrager, 339 U.S. 763, 789, 70 S.Ct. 936, 94 L.Ed. 1255 (1950) (dictum). If this were the case, Berk's claim would not be justiciable because the congressional power to "declare" a war would be reduced to an antique formality, leaving no executive "duty" to follow constitutional steps which can be judicially identified. See Powell v. McCormack, 395 U.S. 486, 516-518, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969); Baker v. Carr, 369 U.S. 186, 198, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). However, the power to commit American military forces under various sets of circumstances is shared by Congress and the executive. History makes clear that the congressional power "to declare War" conferred by Article I, section 8, of the Constitution was intended as an explicit restriction upon the power of the Executive to initiate war on his own prerogative which was enjoyed by the British sovereign. Although Article II specifies that the President "shall be Commander in Chief of the Army and Navy of the United States" and also vests the "executive power" in him and requires that he "take Care that the Laws be faithfully executed," these provisions must be reconciled with the congressional war power. See generally Note, Congress, the President, and the Power to Commit Forces to Combat, 81 Harv. L. Rev. 1771 (1968); Velvel, The Vietnam War: Unconstitutional, Justiciable and Jurisdictionally Attackable, 16 Kan.L.Rev. 449 (1968). Since orders to fight must be issued in accordance with proper authorization from both branches under some circumstances, executive officers are under a threshold constitutional "duty which can be judicially identified and its breach judicially determined." Baker v. Carr, supra, 369 U.S. at 198, 82 S. Ct. at 700.

Even if it possesses this general attribute of justiciability, however, a claim still may not be decided if it involves a political question, as that term is defined in Baker v. Carr, supra, at 217, 82 S.Ct. 691. The challenge framed at this point by the appellant — "which branch has the power to decide if an order has been issued in violation of the Constitution" — may not be answered by stating that courts alone inevitably pass upon allegations of constitutional violations, as Berk seems to suppose. If the issue involved in this case is "political," Congress and the executive will "decide" whether there has been a usurpation of authority by the latter, through political means.

The political question doctrine itself requires that a court decline to adjudicate an issue involving "a lack of judicially discoverable and manageable standards for resolving it," Baker v. Carr, supra, 369 U.S. at 217, 82 S.Ct. at 710. If the executive branch engaged the nation in prolonged foreign military activities without any significant congressional authorization, a court might be able to determine that this extreme step violated a discoverable standard calling for some mutual participation by Congress in accordance with Article I, section 8. But in this case, in which Congress definitely has acted, in part expressly through the Gulf of Tonkin Resolution and impliedly through appropriations and other acts in support of the project over a period of years, it is more difficult for Berk to suggest a set of manageable standards and escape the likelihood that his particular claim about this war at this time is a political question. It may be that he will be able to provide a method for resolving the question of when specified joint legislative-executive action is sufficient to authorize various levels of military activity, but no such standard has as yet been presented to us, although we do not foreclose the possibility that it can be shown at the hearing on the permanent injunction. Even if a distinction can be drawn between offensive and defensive conflicts and if some rather explicit congressional authorization is required for the former, there still remains the problem of determining whether a broad approving resolution followed by non-repeal meets the proposed criterion of "explicit" approval. See United States v. Sisson, 294 F.Supp. 511, 515 (D.Mass. 1968).

Finally, even if Berk is able to show that his claim does not raise an unmanageable political question, he will be required to show the district court that congressional debates and actions, from the Gulf of Tonkin Resolution through the events of the subsequent six years, fall short of whatever "explicit approval" standard he propounds. This will involve a multitude of considerations concerning which neither the...