Mottola v. Nixon

• Decision Date: 10 September 1970
• Docket Number: No. C 70 943.,C 70 943.
• Citation: 318 F. Supp. 538
• Court: U.S. District Court — Northern District of California
• Parties: Gary F. MOTTOLA et al., Plaintiffs, v. Richard M. NIXON, President of the United States, and Melvin Laird, Secretary of Defense of the United States, Defendants.

318 F. Supp. 538

Gary F. MOTTOLA et al., Plaintiffs, v. Richard M. NIXON, President of the United States, and Melvin Laird, Secretary of Defense of the United States, Defendants.

No. C 70 943.

United States District Court, N. D. California.

September 10, 1970.

Gary Mottola and Roy Godfrey Olson in pro. per.

James L. Browning, U. S. Atty., and Brian Denton, Asst. U. S. Atty., San Francisco, Cal., for defendants.

MEMORANDUM OF DECISION

SWEIGERT, District Judge.

This suit is brought by four plaintiffs, three of them being members of the United States Military Reserves and one being a registrant eligible for draft under the Selective Service Act, against the President of the United States and his Secretary of Defense to obtain a judgment (1) enjoining defendants from ordering United States military personnel to conduct military operations in Cambodia, and (2) declaring that these four plaintiffs have the right to refuse to participate in what they claim to be an illegal, unconstitutional war.

The case is now before the court on plaintiffs' motion for a preliminary injunction and on defendants' counter motion to dismiss the suit upon the grounds of lack of jurisdiction of the subject matter, specifically on the grounds of (1) non-justiciable political question; (2) lack of plaintiffs' standing to raise the question, and (3) sovereign immunity from suit.

Although the complaint is directed in terms only at the Cambodian military operation, that issue necessarily involves the constitutionality of the whole Vietnam war. This is so because, if our South Vietnam presence and operation are lawful, then, certainly, any necessary incidental, tactical incursion ordered by the Commander in Chief against dangerous, threatening enemy strongholds across the Cambodian border to protect our South Vietnam forces from attack would likewise be lawful; if, on the other hand, the Vietnam operation, itself, is unlawful then all its actions, including its Cambodian operation, would be unlawful.¹

It must be borne in mind that the issue here is, not whether our involvement in Vietnam has been necessary, wise or moral. That is a subject beyond the province of any court. Only the branches of our government constitutionally vested with the power to make such a judgment — the Congress, the President, or both, can decide whether the Vietnam war has been in the national interest and, if so, when and on what conditions it should be continued or terminated.

The only issue now before this court is the different, narrow, legal question whether, regardless of the necessity, wisdom or morality of the war, it is being waged by and under the authority of the branch of our government in-which such power is constitutionally vested.

Plaintiffs contend that it is not being waged in compliance with constitutional processes because it has never been declared by the Congress as provided by Article I, Section 8(11) of the Constitution.

THE CONSTITUTION, THE INDISPUTABLE FACTS AND THE ISSUE

That Article provides that "Congress shall have power * * * to declare war * * *."

The court can take judicial notice of the fact that the armed forces of the United States are now committed and have been for nearly five years, committed to a full scale war in Vietnam; that this war has never been declared by the Congress and that the President of the United States, through the incumbent and his predecessor in office, has continued, nevertheless, to conduct the war without receiving or even requesting a congressional declaration.

The question arises: How can a situation like this continue in what plaintiffs contend is plain disregard of the Constitution, Article I, Section 8(11)?²

It has been claimed that, notwithstanding Article I, Section 8(11) of the Constitution, the President, exercising his general executive powers and acting in his role as Commander in Chief of the armed forces under Article II, Sections 1(1) and 2(1) of the Constitution, can lawfully commit the nation and its armed forces to such a war as now exists in Vietnam and continue that war in his discretion without receiving or even requesting a congressional declaration. Many reasons have been put forward to support this claim.

The "Repel Attack" Argument.

For example, it has been argued that the President must be in a position to repel attack upon the nation or its armed forces in emergencies when there is no time to consult the Congress. This is an obviously correct qualification of Article I, Section 8, vesting in the Congress the power to declare war — a qualification that finds support in the debates of the Constitutional Convention and one that must be part of any reasonable interpretation of the power of Congress to declare war, i. e., the President has power under Article II, acting in his role as Chief Executive and as Commander in Chief of the armed forces, to repel on his own initiative any attack upon the United States or upon its armed forces or its citizens wherever they may be.

The question remains, however, whether the President may otherwise initiate or continue a war operation, such as the Vietnam operation has now become, without requesting as soon as reasonably possible, and receiving, a congressional declaration of war, or an equally explicit congressional authorization, either general or limited, but in any event phrased to indicate a congressional intent to consent, pursuant to its prerogative under Article I, Section 8(11), to the initiation or continuance of the war.

Most commentators and some courts concede³ that the Vietnam operation has now obviously gone far beyond mere emergency repulsion of any 1964 Tonquin Gulf attack upon our armed forces and that it is obviously a "war" within the meaning of Article I, Section 8(11); that it has come to involve not only defensive, but also offensive military operations of great magnitude, and that it has continued over a period more than sufficiently long to permit and to require exercise by the Congress of its power and responsibility under Article I, Section 8(11).

The Historic Precedents Argument.

It has also been argued that President Lincoln in the Civil War⁴ and President Truman during the Korean War took large scale, long sustained military action without a congressional declaration of war and that in numerous other, lesser instances, presidents have ordered the armed forces into warlike presence abroad without any such declaration. This is true but, even if we assume that those precedents are fairly comparable with the Vietnam war, the fact that constitutional processes may not have been observed in the past would be no legal excuse if the Vietnam war is otherwise constitutionally unauthorized as contended by plaintiffs in this case — a principle recognized by the Supreme Court in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 587, 72 S.Ct. 863, 96 L.Ed. 1153 (1951).⁵

The Treaty Obligations Argument.

It has also been argued that the President can commit the nation to war if necessary to carry out the obligations of the United States under the various mutual defense treaties into which the United States has entered with almost 50 nations, including the so-called SEATO treaty which provides that armed attack against one of the parties poses a danger to all the parties and that each will act to meet the danger. These treaties provide, however, that the obligation of each party is subject to its own "constitutional processes" which, in the case of the United States, includes the provision of Article I, Section 8(11) that the power to declare war lies, not in the President, but in the Congress.

The Foreign Policy Argument.

It has also been argued that the President must have power to commit the nation to war whenever necessary to strengthen or enforce the foreign policy for which the President, through his State Department, is responsible. It should be noted, however, that the presidential power over foreign policy is by no means unlimited; it is dependent on congressional or senatorial cooperation in many respects including, specifically, dependence upon the Congress when it comes to a declaration of war.

The "Outmoded" Argument.

It has also been argued that declarations of war are outmoded, even dangerous, in the nuclear age because such formal declarations may trigger the treaty obligations of nations aligned against the United States and, further, the nation must often be careful to make clear that its warlike operations have only limited objectives lest other nations be mislead to overreaction.

On the contrary, however, it is argued that other nations are more concerned with this nation's actual military moves than with its internal, formal constitutional processes and, further, that in any event, the congressional power to declare war necessarily includes the exercise, if prudently preferable, of the lesser power to limit any declaration of war to stated objectives or to a stated scale or to a stated time according to the particular circumstances. As stated in the early case of Bas v. Tingy, 4 U.S. (4 Dall.) 36, 43, 1 L.Ed. 731, "Congress is empowered to declare a general war or Congress may wage a limited war — limited in place, in objects or in time."

It will be noted that none of the foregoing arguments make any pretense that Article I, Section 8(11) has been complied with in the case of Vietnam; they merely purport to explain why, for various reasons of expediency, the Constitution has not been complied with. They are, therefore, of doubtful relevance in a court whose duty it is to see that the Constitution is complied with.

There are, however, two further arguments which must be separately considered because they do imply that in the case of Vietnam the provision of Article I, Section 8(11) for a congressional declaration of war has been met — at least in substance and effect.

The Implied Ratification Argument.

First, it is argued that the Congress, by continuing supportive...