Commonwealth of Massachusetts v. Laird 8212

• Decision Date: 01 October 1970
• Docket Number: No. 42,42
• Citation: 91 S.Ct. 128,27 L.Ed.2d 140,400 U.S. 886
• Parties: COMMONWEALTH OF MASSACHUSETTS, plaintiff, v. Melvin R. LAIRD, Secretary of Defense. Orig.&#8212
• Court: U.S. Supreme Court

400 U.S. 886

91 S.Ct. 128

27 L.Ed.2d 140

COMMONWEALTH OF MASSACHUSETTS, plaintiff,

v Melvin R. LAIRD, Secretary of Defense.

No. 42 Orig.—.

Supreme Court of the United States

October Term, 1970.

November 9, 1970

On Motion for Leave to File Bill of Complaint.

The motion of The Constitutional Lawyers' Committee on Undeclared War for leave to file a supplemental brief, as amicus curiae, is granted.

The motion of John M. Wells et al. for leave to file a brief, as amici curiae, to participate in oral argument, or alternative motion to be named as parties, is denied.

The motion for leave to file a bill of complaint is denied.

Mr. Justice DOUGLAS, dissenting.

This motion was filed by the Commonwealth of Massachusetts against the Secretary of Defense, a citizen of another State. It is brought pursuant to a mandate contained in an act of the Massachusetts Legislature. 1970 Laws, c. 174. Massachusetts seeks to obtain an adjudication of the constitutionality of the United States' participation in the Indochina war. It requests that the United States' participation be declared 'unconstitutional in that it was not initially authorized or subsequently ratified by Congressional declaration'; it asks that the Secretary of Defense be enjoined 'from carrying out, issuing, or causing to be issued any further orders which would increase the present level of United States troops in Indochina'; and it asks that, if appropriate congressional action is not forthcoming within 90 days of this Court's decree, that the Secretary of Defense be enjoined 'from carrying out, issuing, or causing to be issued any further order directing any inhabitant of the Commonwealth of Massachusetts to Indochina for the purpose of participating in combat or supporting combat troops in the Vietnam war.' Today this Court denies leave to file the complaint. I dissent.

The threshold issues for granting leave to file a complaint in this case are standing and justiciability. I believe that Massachusetts has standing and the controversy is justiciable. At the very least, however, it is apparent that the issues are not so clearly foreclosed as to justify a summary denial of leave to file.

STANDING

In Massachusetts v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, the Court held a State lacked standing to challenge, as parens patriae, a federal grant-in-aid program under which the Federal Government was allegedly usurping powers reserved to the States. It was said in Mellon:

'[T]he citizens of Massachusetts are also citizens of the United States. It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the State, under some circumstances, may sue in that capacity for the protection of its citizens (Missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct. 331, 45 L.Ed. 497), it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the States, which represents them as parens patriae, when such representation becomes appropriate, and to the former and not to the latter, they must look for such protective measures as flow from that status.' Id., at 485-486, 43 S.Ct. 597.

The Solicitor General argues that Mellon stands as a bar to this suit.

Yet the ruling of the Court in that case is not dispositive of this one. The opinion states 'We need not go so far as to say that a state may never intervene by suit to protect its citizens against any form of enforcement of unconstitutional acts of Congress; but we are clear that the right to do so does not arise here.' Id., at 485, 43 S.Ct. 597. Thus the case did not announce a per se rule to bar all suits against the Federal Government as parens patriae and a closer look at the bases of the opinion is necessary to determine the limits on its applicability.

Mellon relates to an Act of Congress signed by the Executive, a distinction noted in other original actions. In Georgia v. Pennsylvania Railroad Co., 324 U.S. 439, 65 S.Ct. 716, 89 L.Ed. 1051, we stated, '[t]his is not a suit like Massachusetts v. Mellon, and Florida v. Mellon, supra, [273 U.S. 12, 47 S.Ct. 265, 71 L.Ed. 511] where a State sought to protect its citizens from the operation of a federal statute.' Id., at 446-447, 43 S.Ct. 597.

Massachusetts attacks no federal statute. In fact, the basis of Massachusetts' complaint is the absence of congressional action.

It is said that the Federal Government 'represents' the citizens. Here the complaint is that only one representative of the people, the Executive, has acted and the other representatives of the citizens have not acted, although, it is argued, the Constitution provides that they must act before an overseas 'war' can be conducted.

There was a companion case to Mellon in which the Court held that a taxpayer lacked standing to challenge the same federal spending statute. Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078. Two years ago we reconsidered Frothingham and found at least part of the ruling could not stand the test of time. Concurring in the result, I stated:

'Frothingham, decided in 1923, was in the heyday of substantive due process, when courts were sitting in judgment on the wisdom or reasonableness of legislation. The claim in Frothingham was that a federal regulatory Act dealing with maternity deprived the plaintiff of property without due process of law. When the Court used substantive due process to determine the wisdom or reasonableness of legislation, it was indeed transforming itself into the Council of Revision which was rejected by the Constitutional Convention. It was that judicial attitude, not the theory of standing to sue rejected in Frothingham, that involved 'important hazards for the continued effectiveness of the federal judiciary,' to borrow a phrase from my Brother Harlan. A contrary result in Frothingham in that setting might have accentuated an ominous trend to judicial supremacy.' Flast v. Cohen, 392 U.S. 83, 107, 88 S.Ct. 1942, 20 L.Ed.2d 947.

In Flast we held a taxpayer had standing to challenge a federal spending program, if he showed that Congress breached a specific limitation on its taxing and spending power. As Mr. Justice Stewart stated in his concurring opinion, '[t]he present case is thus readily distinguishable from Frothingham v. Mellon, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078, where the taxpayer did not rely on an explicit constitutional prohibition but instead questioned the scope of the powers delegated to the national legislature by Article I of the Constitution.' 392 U.S., at 114, 88 S.Ct. 1942.

The erosion of Frothingham does not, of course, necessarily mean that the authority of Mellon has been affected. But if the current debate over Frothingham '* * * suggests that we should undertake a fresh examination of the limitations upon standing to sue,' 392 U.S., at 94, 88 S.Ct. 1942, then surely the erosion of Frothingham suggests it is time to reexamine its companion case.

Mellon, too, has been eroded by time. In the spring of 1963 the Governor of Alabama moved for leave to file a complaint to prevent the President from using troops in Birmingham during civil rights marches there. Under the Solicitor General's reading of Mellon Alabama would lack standing to challenge such an exercise of presidential authority. The Court denied Alabama relief, not because of Mellon, but because:

'In essence the papers show no more than that the President has made ready to exercise the authority conferred upon him by 10 U.S.C. § 333 by alerting and stationing military personnel in the Birmingham area. Such purely preparatory measures and their alleged adverse general effects upon the plaintiffs afford no basis for the granting of any relief.' Alabama v. United States, 373 U.S. 545, 83 S.Ct. 1365, 10 L.Ed.2d 540.

In South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769, Mellon was further weakened. In that case we denied standing to South Carolina to assert claims under the Bill of Attainder Clause of Article I and the principle of separation of powers which were regarded 'only as protections for individual persons and private groups who are particularly vulnerable to nonjudicial determinations of guilt.' 383 U.S., at 324, 83 S.Ct. 1365. Yet we went on to allow South Carolina to challenge the Voting Rights Act of 1965 as beyond congressional power under the Fifteenth Amendment.

The main interest of South Carolina was in the continuing operation of her election laws. Massachusetts' claim to standing in this case is certainly as strong as South Carolina's was in the Katzenbach case.

Massachusetts complains, as parens patriae, that her citizens are drafted and sent to fight in an unconstitutional overseas war. Their lives are in jeopardy. Their liberty is impaired.

Furthermore, the basis on which Flast distinguished Frothingham is also present here. The allegation in both Mellon and Frothingham was that Congress had exceeded the general powers delegated to it by Art. I, § 8, and invaded the reserved powers of the States under the Tenth Amendment. The claim was not specific; but, as Flast held, if a taxpayer can allege spending violates a specific constitutional limitation, then he has standing. Here Massachusetts points to a specific provision of the Constitution. Congress by Art. I, § 8, has the power 'To declare War.' Does not that make this case comparable to Flast?

It has been settled at least since 1900 that 'if the health and comfort of the inhabitants of a State are threatened, the State is the proper party to represent and defend them.' Missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct. 331, 45 L.Ed. 497, in an original action in this Court. And see Georgia v. Tennessee Copper Co., 206 U.S. 230, 237-238, 27 S.Ct. 618, 51 L.Ed. 1038; Pennsylvania v. West Virginia, 262 U.S. 553, 591-592,...