Velvel v. Johnson

• Decision Date: 30 July 1968
• Docket Number: Civ. A. No. T-4417.
• Citation: 287 F. Supp. 846
• Parties: Lawrence R. VELVEL, on behalf of himself and all others similarly situated within the United States Judicial District of Kansas, Plaintiff, v. Lyndon B. JOHNSON, President, Dean Rusk, Secretary of State, and Clark Clifford, Secretary of Defense, Defendants.
• Court: U.S. District Court — District of Kansas

287 F. Supp. 846

Lawrence R. VELVEL, on behalf of himself and all others similarly situated within the United States Judicial District of Kansas, Plaintiff, v. Lyndon B. JOHNSON, President, Dean Rusk, Secretary of State, and Clark Clifford, Secretary of Defense, Defendants.

Civ. A. No. T-4417.

United States District Court D. Kansas,

July 30, 1968.

COPYRIGHT MATERIAL OMITTED

Lawrence R. Velvel, Lawrence, Kan., pro se.

Benjamin E. Franklin, U. S. Atty., Elmer Hoge, Asst. U. S. Atty., Topeka, Kan., for defendants.

MEMORANDUM OF DECISION

TEMPLAR, District Judge.

This action was instituted by plaintiff on behalf of himself and all others similarly situated within the United States Judicial District of Kansas against Lyndon B. Johnson, as President, Dean Rusk, as Secretary of State, and Clark Clifford, as Secretary of Defense.

It appears that service was had upon defendants Rusk and Clifford but not upon the President.

A pleading labeled "Defendants' Motion to Dismiss" has been filed on behalf of the "defendants" by the United States Attorney for the District of Kansas and his assistant. The grounds set forth in the Motion to Dismiss are as follows:

1. Plaintiff lacks standing to sue.

2. The case presents a non-justiciable political question.

3. This is a suit against the United States to which it has not consented.

This Motion is accompanied by a Memorandum of Law offered in support of the defendants' Motion to Dismiss.

The allegations of plaintiff's Complaint are uncomplicated. Aside from the allegations of jurisdiction and the statement that it is brought as a class action on behalf of numerous persons in the District of Kansas who are suffering financial, physical and other injuries because of the defendants' unconstitutional actions in carrying on the Vietnamese war without a Congressional declaration of limited or general war, it is alleged that:

"Article I, Section 8, Clause 11 of the United States Constitution states, in clear and unequivocal language, that the Congress shall have the power to declare war. Despite this explicit Constitutional directive, the defendants, and the predecessor in office of defendant Clifford, have for approximately three and one-half years conducted a large scale war in Viet Nam without a Congressional declaration of limited or general war. In so doing, the defendants have unlawfully exceeded and are continuing to unlawfully exceed their Constitutional authority by conducting a war without legal authorization, and have, in effect, unlawfully arrogated unto themselves the Congressional power to declare war."

The prayer of the complaint prays that this Court issue a declaratory judgment that defendants have acted unconstitutionally by carrying on the Vietnamese war without a Congressional declaration of limited or general war. Alternatively, and if the situation at the time should warrant, plaintiff prays that this Court issue an order requiring that defendants either (1) obtain a Congressional declaration of limited or general war or (2) discontinue the fighting in Vietnam, such discontinuance to be carried out with all deliberate speed.

After defendants filed their Motion to Dismiss Plaintiff's Complaint on the grounds alleged, plaintiff countered with a Motion for Summary Judgment based on the ground that there are no genuine issues as to any material fact in this case and that, therefore, plaintiff is entitled to a judgment as a matter of law. This motion, filed on May 17, 1968, was supported by a copious and persuasive brief. Defendants thereafter, on June 13, 1968, countered with a Memorandum in Opposition to Plaintiff's Motion for Summary Judgment. Plaintiff then, on June 20, 1968, filed an Addendum to the Memorandum of Law in Support of his Motion for Summary Judgment. Thereafter, on July 11, 1968, the matter was orally presented to the Court by the plaintiff personally and by defendants' attorneys.

Following the argument, the defendants' counsel, on July 12, 1968, filed a Supplemental Memorandum in Support of Defendants' Motion to Dismiss. At oral argument on the day previous, defendants' counsel had requested and were given leave to file this memorandum. Plaintiff has now presented to the Court a Reply to Defendants' Supplemental Memorandum and has asked leave to file it. Leave is granted and all briefs, memorandums and arguments of plaintiff and of defendants' counsel have been carefully reviewed and considered by the Court.

We are not dealing here with a situation in which a taxpayer plaintiff complains that an act of Congress appropriates money specifically for an unconstitutional purpose but the gravamen of the proceeding turns on the question involving the power of the President of the United States and the heads of the executive departments of government, at his direction, to carry on military activity in a foreign country absent a formal and constitutional declaration of war by the duly elected and constituted Congress of the United States.

Generally speaking, it is not within the province of the judiciary to determine political questions. This has been recognized by the Court of Appeals for the Tenth Circuit.

"The existence of war and the restoration of peace are determined solely by the political departments of our government, and such determinations are conclusively binding upon the courts in all matters of state or public concern * * *." New York Life Insurance Company v. Durham, 166 F.2d 874 (10th Cir.).

Again, in Swallow v. United States, 325 F.2d 97 (10th Cir.), that Court announced (p. 98):

"A federal court will not review the foreign policy of the government nor the wisdom of the congressional appropriations for welfare purposes. This is an area exclusively within the jurisdiction of the legislative and executive branches, even when the allegation is made that income tax monies are being used to carry on an aggressive war. Farmer v. Rountree, D.C. Tenn., 149 F.Supp. 327, aff'd 6 Cir., 252 F.2d 490, cert. denied 357 U.S. 906, 78 S.Ct. 1150, 2 L.Ed.2d 1156. * * *."

The Farmer case cited in Swallow approved the following determinations of the trial court from which that appeal was taken, (149 F.Supp. 327):

"Foreign policy of United States is exclusive province of executive and legislative branches of government, and in this area of responsibility, as well as in all questions of national defense, it is imperative that courts strictly observe limitations upon their power and refrain from rendering any judgment which would embarrass the policy decisions of government or involve them in confusion and uncertainty."

And,

"Courts are constituted to adjudicate cases and controversies properly coming within judicial sphere of action, and they have no right or authority to resolve political or governmental questions, or to review issues of governmental policy entrusted to the executive and legislative departments."

The Tenth Circuit has reaffirmed this view in the later case of Ward v. United States, 344 F.2d 316 (10th Cir.).

Courts have no jurisdiction to decide political questions. These are such as have been entrusted by the sovereign for decision to the so-called political departments of government, as distinguished from questions which the sovereign has set to be decided in the courts. Even under a government where there is no express constitutional delegation of powers, this limitation upon judicial authority has long been recognized. Sevilla v. Elizalde, 72 App.D.C. 108, 112 F.2d 29.

Though it is not always a simple matter to define the meaning of the term "political question," it is generally used to encompass all questions outside the sphere of judicial power. Among the questions which have been recognized as political rather than judicial in nature, none comes more clearly within the former classification than those which involve the propriety of acts done in the conduct of the foreign relations of our government. Z. & F. Assets Realization Corp. v. Hull, 72 App.D.C. 234, 114 F.2d 464, 468. Indeed, it appears that the courts have unanimously agreed to refrain from interfering with that great group of matters involving foreign relations of the United States with other nations. See Finkelstein, Judicial Self Limitation, 37 Harvard Law Rev. 338, 347.

In Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 311, 62 L.Ed. 726, it was held that:

"The conduct of the foreign relations of our government is committed by the Constitution to the executive and legislative — `the political' — departments of the government, and the propriety of what may be done in the exercise of this political power is not subject to judicial inquiry or decision."

The President, constitutionally, is Commander in Chief of the Army and Navy and of the militia of the several states when called into the actual Service of the United States. He is entrusted with the right and the power of protecting the interests of the country and to carry on such activities in managing our concerns with foreign nations. He must be competent and privileged to determine when, how, and upon what basis the executive directions and orders he gives as Commander in Chief will likely produce the greatest measure of success. For his conduct, he is responsible to the Constitution.

The President is invested by the Constitution with 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. See Marbury v. Madison, 5 U.S. 137, 2 L.Ed. 60.

The judiciary is not that department of the government to which the assertion of its interests as against foreign powers is confided. It follows that the courts should do no act which, directly or indirectly, would embarrass the government in conducting its international affairs. It has been uniformly held that those questions, the decision of which, as it might involve war or peace, must be primarily dealt with by those...