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August 7, 1972

John S. ATLEE et al.
Melvin LAIRD, Individually and as Secretary of Defense, et al. Fred R. BERNATH et al. v. Richard M. NIXON, Individually and as President of the United States, et al.

Adams, Circuit Judge, Joseph S. Lord, III, Chief District Judge, and Huyett, District Judge. Joseph S. Lord, III, Chief District Judge, dissents files an opinion.

The opinion of the court was delivered by: ADAMS

Historically, the power of the federal courts to adjudicate disputes has been delimited by constitutional and legislative constraints, such as the "case or controversy" test set forth in the Constitution and the "amount in controversy" standard established by Congress. In addition, there have been restraints developed by the courts themselves, such as the "political question" doctrine.

 This case places before us the issue whether the Court having jurisdiction of the dispute ought to proceed to adjudicate it or ought to eschew this task on the ground that the matter constitutes a political question.

 The seven named plaintiffs in this suit filed a class action on September 24, 1971 *fn1" asking that a three-judge district court be convened for the purpose of determining the constitutionality of the war in Southeast Asia. Specifically, they have alleged that American participation in, and the expenditure of funds for, the war contravene various constitutional provisions, and that the conduct of the war is violative of the treaties to which the United States is a signatory. Plaintiffs have asked this Court essentially to declare the illegality of the war and to enjoin permanently the expenditure of funds supporting the war, the spending of money for weapons that may be found illegal under the international rules of war, and the use of military tactics that may violate those rules.

 On behalf of the defendants here, the Government filed a motion with the single-judge court to dismiss. With regard to the President, the district judge granted the motion, D.C., 336 F. Supp. 790. However, in an opinion carefully delineating those issues which the single judge, as opposed to the three-judge court, had the power to consider, the motion pertaining to the Secretary of Defense was denied, D.C., 339 F. Supp. 1347. *fn2" Status as amici curiae has been granted to a number of groups, and this Court now has pending before it a motion to intervene as plaintiffs filed by several individuals of, or approaching, draft age that we hereby grant, and the Government's motion to dismiss, or in the alternative to dissolve, the three-judge court.

 The Government has advanced four grounds for dismissing the complaint, *fn3" but at oral argument relied primarily on the contention that the case is nonjusticiable because it asks this Court to decide a political question. In view of the result reached, we consider only the justiciability issue.

 An analysis of the political question doctrine should first recognize that the judiciary clause of the Constitution gives no explicit support to the theory that federal courts may properly decline to hear cases or decide particular issues merely because they involve political questions. The relevant provision contained in Art. III, Sec. 2 is that the judicial power shall extend to cases and controversies. No mention is made that certain disputes otherwise subject to the judicial power should not be adjudicated.

 However, the political question doctrine was recognized before the enactment of the Constitution and frequently by the Supreme Court in the period shortly after the adoption of the Constitution. *fn4"

 In the landmark case of Marbury v. Madison, 5 U.S. 137, 1 Cranch (5 U.S.) 137, 165-166, 2 L. Ed. 60 (1803), deciding whether the refusal of the Secretary of State to deliver commissions appointing justices of the peace was reviewable by the federal courts, Chief Justice Marshall stated that the question whether the legality of an act of the head of a department be examinable must depend on the nature of that act. He continued that if some acts be examinable, and others not, there must be some rule to guide the court in the exercise of its jurisdiction; that there may be difficulty in applying the rule in particular cases; but there cannot be much difficulty in laying down the rule. He then added:

"By the constitution of the United States, the President is invested with certain 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. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.
"In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive." Id. at 165-166.

 Thus, Marbury may be considered the genesis of the political question doctrine in the federal courts. *fn5"

 The first case to discuss in detail the application of the political question doctrine was Luther v. Borden, 7 How. (48 U.S.) 1, 12 L. Ed. 581 (1849). *fn6" Luther brought a trespass action against Borden and others for breaking and entering Luther's house. Borden defended on the grounds that an insurrection to overthrow the government of Rhode Island was taking place, that martial law had been declared by the General Assembly, that Luther was aiding and abetting the insurrection and that the defendants were members of the local infantry ordered to arrest the plaintiff and if necessary to break and enter his dwelling. Luther's reply was based on the assertion that prior to the acts complained of, the government, under whose authority his house was broken into, had been displaced by the people of Rhode Island, and that Luther was acting in support of the new government. The form of the original charter government of Rhode Island had not been significantly changed since its inception in 1663. By 1840, a number of citizens led by Dorr were disenchanted with the existing form of government and called a convention, unauthorized by the legislature, to write a new constitution to be submitted to the people. After the votes were returned, the convention declared the new constitution to be adopted, and communicated the decision to the governor so that he might place it before the charter legislature. In addition, the convention ordered elections for various state posts, and the representatives thus elected organized a new government to supercede that established by the charter.

 With this factual background, the Supreme Court was asked to decide which of the two Rhode Island governments was legitimate. This they refused to do. Rather, they examined the decisions of the Rhode Island Supreme Court and concluded that they were bound by that court's interpretation of the Rhode Island laws and constitution. And when confronted with the suggestion that they make their own determination based on the right of the people to a republican form of government, the Court answered that the Constitution reposes the protection of that right solely with the legislative and executive -- the political -- branches of the federal government.

"Much of the argument on the part of the plaintiff turned upon political rights and political questions, upon which the court has been urged to express an opinion. We decline doing so. The high power has been conferred on this court of passing judgment upon the acts of the State sovereignties, and of the legislative and executive branches of the federal government, and of determining whether they are beyond the limits of power marked out for them respectively by the Constitution of the United States. This tribunal, therefore, should be the last to overstep the boundaries which limit its own jurisdiction. And while it should always be ready to meet any question confided to it by the Constitution, it is equally its duty not to pass beyond its appropriate sphere of action, and to take care not to involve itself in discussions which properly belong to other forums." 7 How. (48 U.S.) at 46-47, 12 L. Ed. 581.

 The holding of Luther v. Borden that the Guarantee Clause presents a political question has been reaffirmed time after time by the Supreme Court. *fn7"

 Although not specifically dealing with the political question principle, the Prize Cases, 67 U.S. 635, 17 L. Ed. 459 (1863), relied upon by the plaintiffs, are instructive in tracing the development of the doctrine. In April, 1861, President Lincoln declared a blockade against the states making up the Confederacy, and shortly thereafter several ships were seized by federal vessels, taken to Northern ports, and claimed as prizes. The issues before the Supreme Court were whether the President had the power to declare the blockade, and if so, whether the property of residents of the blockaded states was "enemy" property. The Court began by stating the general rules that the President, as Commander-in-Chief, is the proper person to declare a blockade, and that a blockade is justified when a state of war exists de facto. The Court then noted it was factually beyond dispute that with the firing on Fort Sumter, a state of civil war did exist, and that it was the duty of the President to protect the Nation from invasion. Therefore, the President had the power to blockade Southern ports.

 The dissent viewed the question differently and stated that without a formal declaration of war the President was powerless to act. One might conclude, then, that questions concerning the war-making powers of the President and Congress do not fall within the political question doctrine on the assumption that the majority must have considered these issues on the merits. Such a suggestion overlooks the fact, however, that the majority rested its holding on the existence of actual hostilities and not on a declaration of war in the constitutional sense. The position of the minority, that a federal court may properly examine on the merits the scope of the war-making powers of the political branches in other than a case of conflict between the actions taken by both branches, has simply never been the law. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 72 S. Ct. 863, 96 L. Ed. 1153 (1952).

 Later in the 19th century, the Supreme Court began to apply the developing political question doctrine to specific factual settings. In re Baiz, 135 U.S. 403, 10 S. Ct. 854, 34 L. Ed. 222 (1890), held that federal courts did not have the authority to review the refusal of the Department of State to issue immunity papers to the general consul of a foreign nation because the executive alone possessed the power.

 Two years later the Court was confronted with a case in which importers protested the assessment of a duty on the basis that the legislation authorizing the tax as printed differed from that passed by the House and Senate. Field v. Clark, 143 U.S. 649, 12 S. Ct. 495, 36 L. Ed. 294 (1892). After noting that the enrolled act carried the signatures of the Speaker of the House, the President of the Senate, and the President of the United States and was in the custody of the Secretary of State, the Supreme Court held that the authenticity of the bill could not be attacked.

 The next case of significance in particularizing the development of the political question doctrine is Oetjen v. Central Leather Co., 246 U.S. 297, 38 S. Ct. 309, 62 L. Ed. 726 (1918). In dispute was the ownership of a large cargo of hides that the plaintiff claimed as the assignee of Martinez & Co., an enterprise doing business in Torreon, Mexico, and to which the defendant asserted title based on a purchase from a Texas company.

 Following the commencement of a revolution in Mexico in 1913, in which General Carranza eventually succeeded in ousting the Huerta regime, General Villa was placed in command of the northern Carranza forces. After capturing the city of Torreon, Villa proposed levying a military contribution on the citizens to support his army. Following negotiations, terms were reached. However, one Huerta follower had fled the city and failed to pay his assessment.

 Villa confiscated the hides in payment and eventually sold them to the Texas company. The assignee of the individual from whom the hides were seized brought suit to regain them on the theory that the Villa assessment violated the terms of the Hague Convention.

 The Supreme Court took judicial notice of the fact that the President had recognized the Carranza government de facto in 1915 and de jure in 1917, and that such recognition is retroactive. The Court refused to inquire beyond this act of the executive because

"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." Id. at 302, 38 S. Ct. at 311.

 Nixon v. Herndon, 273 U.S. 536, 47 S. Ct. 446, 71 L. Ed. 759 (1927), on the other hand, made clear that merely because the political process may in some way be implicated in the issues of a law suit, it does not follow that a federal court lacks jurisdiction because of the political question doctrine. As Justice Holmes stated, for a unanimous Court:

"The objection that the subject-matter of the suit is political is little more than a play upon words. Of course the petition concerns political action but it alleges and seeks to recover for private damage. That private damage may be caused by such political action and may be recovered for in a suit at law hardly has been doubted for over two hundred years . . ." Id. at 540, 47 S. Ct. at 446. *fn9"

 The critical distinction between political questions as they relate to purely domestic affairs and those relating to foreign affairs was emphasized in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S. Ct. 216, 81 L. Ed. 255 (1936). In 1934, Congress passed a resolution that if the President found that the prohibition of selling arms to countries involved in fighting in the Chaco would help re-establish peace there, it would be a crime to sell such weapons. On the same day, the President made the required finding in the form of a proclamation, and in 1936, the defendant was indicted for having made prohibited sales. One of the challenges to the prosecution was based on the assertion that the Congress had delegated powers to the President unconstitutionally. As a preliminary observation, the Court noted,

"The whole aim of the resolution is to affect a situation entirely external to the United States, and falling within the category of foreign affairs. * * * In other words, assuming (but not deciding) that the challenged delegation, if it were confined to internal affairs, would be invalid, may it nevertheless be sustained on the ground that its exclusive aim is to afford a remedy for a hurtful condition within foreign territory?" Id. at 315, 57 S. Ct. at 218.

 The Court then undertook a detailed examination of the evolution of the nation's powers as a sovereign in foreign affairs, in contradistinction to those powers derived through the Constitution from the States, and concluded that even without specific constitutional authorization, the political branches would have broad powers, not subject to examination by the judiciary, in the field of foreign relations.

"It is enough to summarize by saying that, both upon principle and in accordance with precedent, we conclude there is sufficient warrant for the broad discretion vested in the President to determine whether the enforcement of the statute will have a beneficial effect upon the ...

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