Commonwealth of Massachusetts v. Laird

• Citation: 451 F.2d 26
• Decision Date: 21 October 1971
• Docket Number: No. 71-1177.,71-1177.
• Parties: COMMONWEALTH OF MASSACHUSETTS et al., Plaintiffs, Appellants, v. Melvin R. LAIRD, etc., Defendant, Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

451 F.2d 26 (1971)

COMMONWEALTH OF MASSACHUSETTS et al., Plaintiffs, Appellants, v. Melvin R. LAIRD, etc., Defendant, Appellee.

No. 71-1177.

United States Court of Appeals, First Circuit.

October 21, 1971.

Robert J. Condlin, Asst. Atty. Gen., with whom Robert H. Quinn, Atty. Gen., Walter H. Mayo, III, and Daniel J. Johnedis, Asst. Atty. Gen., were on brief, for appellants.

William A. Brown, Asst. U. S. Atty., with whom Herbert F. Travers, Jr., U. S. Atty., and James N. Gabriel, Asst. U. S. Atty., were on brief, for appellee.

David L. Norvell, Atty. Gen., State of New Mexico, on brief pro se, amicus curiae.

Before ALDRICH, Chief Judge, McENTEE and COFFIN, Circuit Judges.

COFFIN, Circuit Judge.

The question sought to be raised in this action is whether the United States involvement in Vietnam is unconstitutional, a war not having been declared or ratified by the Congress. Plaintiffs seek a declaration of unconstitutionality and an injunction against the Secretary of Defense barring further orders to duty in Southeast Asia of Massachusetts inhabitants if within ninety days of a decree the Congress has not declared war or otherwise authorized United States participation.

The individual plaintiffs are residents of Massachusetts and members of the United States forces who are either serving in Southeast Asia or are subject to such service. They allege that their forced service in an undeclared war is a deprivation of liberty in violation of the due process clause of the Fifth Amendment. The Commonwealth of Massachusetts is a plaintiff pursuant to an act of its legislature proscribing military service by its inhabitants in the conduct of extra-territorial non-emergency armed hostilities in the absence of a Congressional declaration of war and directing its Attorney General to bring an action in the Supreme Court or, in the event of a final determination that such action is not one of which that Court has original jurisdiction,¹ an action in an inferior federal court to defend the rights of its inhabitants and of the Commonwealth. M.G.L.A. c. 33 app., § 26-1.

The complaint, alleging active engagement by the United States in Indochina in armed hostilities "for the last six years," traces the familiar and unhappy history of escalation since 1950: assistance to the French, the first American casualties in 1959, the accumulation of 23,000 "military advisors" by 1964, the Gulf of Tonkin Resolution in the same year, and the subsequent exponential increase in air strike sorties, troops, casualties, and expenditures. The complaint repeatedly alleges the absence of a Congressional declaration of war or ratification. The Commonwealth alleges damage both as a sovereign state and as parens patriae, citing the deaths and injuries of its inhabitants, consequential loss of their prospective civic and tax contributions, increased claims of dependents, additional burdens on its economy, disadvantage to its absentee voters, mass demonstrations, and damage to its public's morale. It also asserts its interest in "maintaining the integrity of the Constitution" which is allegedly impaired in that "one branch, the executive, has exercised war-making powers, which the Commonwealth and its sister states had agreed would be exercised only by Congress."

The district court dismissed the complaint, relying on the alternate grounds that the controversy was not justiciable and that, if justiciable, continual Congressional legislation in support of the Vietnam war implied sufficient authorization. 327 F.Supp. 378 (D.Mass. 1971).

As to threshold matters, we reject respondent's claim that subject matter jurisdiction is lacking. As we understand the argument, it is partly a restatement of arguments against justiciability. What remains is the contention that, since the substantiality of plaintiffs' constitutional claims is challenged, there is lack of subject matter jurisdiction, citing Powell v. McCormack, 395 U.S. 486, 514 n. 37, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). No such doctrine can be drawn from Powell; the contrary was made clear in Baker v. Carr, 369 U.S. 186, 199, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), i.e., that only if a claim is absolutely devoid of merit or frivolous could dismissal for lack of jurisdiction be justified. Nor do we find any merit in the claim that the individual plaintiffs, particularly those serving in Southeast Asia, lack standing. Berk v. Laird, 429 F.2d 302 (2d Cir. 1970).

We do not see, however, that Massachusetts achieves any special status as a protector of the rights of its citizens, solely as United States citizens, and not as a sovereign with unique interests. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). See also, Note, The Supreme Court as Arbitrator in the Conflict Between Presidential and Congressional War-Making Powers, 50 B.U.L.Rev. 78, 79 n. 9 (Special Issue 1970). The traditional rationale is that the federal government is "the ultimate parens patriae of every American citizen," 383 U.S. at 324, 86 S. Ct. at 816. This admittedly seems inappropriate in a suit challenging the constitutionality of a war waged by the putative parens. Suffice it to say that some of the plaintiffs are properly before us.

While the challenge to the constitutionality of our participation in the Vietnam war is a large question, so also is the question whether such an issue is given to the courts to decide, under the circumstances of this case. The Supreme Court has thus far not ruled on the latter issue in this context. Other federal courts have differed in their rationales.² Scholars have probed "the political question" and have found it just as much an impenetrable thicket as have the courts.³

In our own search for a principled resolution of the question of the appropriateness of our deciding the merits, we seek first to understand the theory of the complaint, then to identify the appropriate legal standard, and finally to apply that standard to the issue raised.

The Massachusetts statute, pursuant to which plaintiffs bring this action, is based on the simple proposition that participation by the United States in hostilities other than an emergency is unconstitutional unless "initially authorized or subsequently ratified by a congressional declaration of war according to the constitutionally established procedures in Article 1, Section 8 Clause 11th, of the Constitution."⁴ M.G.L.A. c. 33 app., § 26-1. The complaint expands this theory by recognizing that constitutionality could be achieved by a "constitutional equivalent" for a declaration of war or by specific ratification of executive actions.

In any event, despite some language charging the executive with exercising the "war-making powers" of Congress, the thrust of the complaint is not that the executive has usurped a power—the power to declare war—given to Congress. There is no claim that the executive has made any declaration. The charge is, rather, that since hostilities have long since transcended a response to an emergency, both Congress and the executive have acted unconstitutionally in sustaining the hostilities without a Congressional declaration of war. In effect the relief sought by the complaint is to order the executive to "get out or get a declaration from Congress."

Plaintiffs have understandably devoted considerable attention to the criteria of justiciability catalogued in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691 (1962).⁵ In assessing what have been termed the "prudential" and "functional" factors,⁶ they assert that there are judicially discoverable standards for determining whether hostilities in Vietnam require a declaration of war; that no nonjudicial policy determination is required—only a determination of authority; that no lack of respect to coordinate branches will be shown, but, rather, respect for the Constitution; that circumstances do not require unquestioning adherence to a political decision already made; and that, with a court acting as final arbiter, there is no risk of embarrassment from multifarious pronouncements.

We are not so sanguine that these factors can be so easily disposed of. Perhaps they impose no insuperable obstacle to principled decision in the case of long-continued, large-scale hostilities. But, once given the principle that a plaintiff may challenge the constitutionality of undeclared military operations, a court must be prepared to adjudicate whether actions are justified as emergency ones needing no declaration, or have gone beyond this bound. In the latter event the court must adjudicate whether Congress has expressly or impliedly ratified them. Workable standards, fact finding, the prospect of conflicting inferior court decisions, and other factors might well give pause to the most intrepid court.

We do not, however, rely on these factors. Partly we feel that to base abstinence on such pragmatic, if realistic, considerations is not desirable unless so clearly dictated by circumstances that it cannot be mistaken as abdication. Moreover, on a question so dominant in the minds of so many, we deem it important to rule as a matter of constitutional interpretation if at all possible. Finally, and of course most pertinently, we derive recent guidance from the Supreme Court's approach in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944 (1969), giving dominant consideration to the first decisional factor listed in Baker v. Carr, supra. This is the inquiry "whether there is a `textually demonstrable constitutional commitment of the issue to a coordinate political department' of government and what is the scope of such commitment." 395 U.S. at 521, 89 S.Ct. at 1964.

To this critical factor of textual commitment, plaintiffs devoted one paragraph of their lengthy brief. They construed the issue as "judicial assessment of executive action in Vietnam against a constitutional standard." So phrased, the issue is of course, by definition, committed to the judiciary. Were the issue...