Executive Branch in matters of national security and defense. As the above legislative history shows, Congress believed the Constitution vested it with a co-equal status with the Executive in such matters, and Section 613 was meant to insure that Congress received the information it needed to perform this role. Given this definite reason behind Section 613's enactment we find no reason to presume that Congress nonetheless intended to dilute Section 613's promise by vesting in a body other than Congress the decision whether Congress had received the required information in the case of any particular base closing. Such power in a body other than Congress would allow for the possibility that such other body might decide in a particular case that Congress had received the required information, even though Congress believed otherwise. Such possibility would in turn allow for the possibility that Congress would not receive in that case the information it felt it needed to do its job, and the underlying purpose of Section 613 would thereby have been frustrated.
Moreover, the Constitution vests authority over decisions concerning the deployment of national military resources, and thus the continued operation or closure of individual military bases, in the Executive and Congress,
but not the Judiciary. We believe that in light of this Constitutional and traditional absence of the courts from this area, Congress would not have left it to inference or presumption if Congress had intended the courts to become involved in the process of military base closures.
Indeed, in the considerations and debates in the evolution of Section 613, Congressional concern focused extensively and precisely on the issue of the Constitutional allocation of authority in the matter of decisions to close or continue military bases, and not once do we find any hint of a belief or intent that the courts have a place in this matter or should be involved. See, e.g., S. Rep. No. 338, 89th Cong., 1st Sess., at 48-49 (June 21, 1965). Countless mentions and discussions of the Executive and Congress appear in such legislative history, but not once is the Judiciary mentioned in any respect.
Plaintiffs urge that they ask us only to decide whether the Executive branch has complied with statutory requirements, but do not ask that we become involved in the policy decision to close a base. We recognize this point, but it does not change our presumption that Congress did not intend judicial involvement with Section 613 and the matter of base closings. An injunction by us to halt a base closure would have the same effect on such closure regardless whether we issued it for policy or statutory interpretation reasons, and it is this effect or interference with a proposed base closure which we do not believe we can presume Congress intended.
Our conclusion on this point rests to a great extent on the fact that Congress denied itself the power to halt a proposed base closing. H.R. 8439, Section 608, 89th Cong., 1st Sess. (1965), the original predecessor of the present Section 613, provided that either House of Congress could halt a proposed base closing by simple majority resolution the House passed this provision, but the Senate deleted it, on grounds that it might allow what the Senate believed would be unwise interference with the quick and efficient adjustment of military resources to changing demands. See, S.Rep. No. 338, 89th Cong., 1st Sess., at 48-40 (June 21, 1965). The House accepted the Senate's deletion, and the bill ultimately passed contained no provision for any Congressional halt of a base closure. H.R. 8439, Section 611, 89th Cong., 1st. Sess. (1965).
Given such action by Congress, we do not think we can reasonably presume Congress intended, without expressly so stating, that a court would have the same power peremptorily to halt a base closing that Congress denied itself. An injunction to halt any proposed closing would have the same effect on military resource adjustment that a halt resulting from Congressional resolution would have, and we can not see why Congress would have less concern with allowing such effect to be caused by judicial injunction than by Congressional resolution.
In addition, we find reason not to presume Congress intended judicial enforcement of Section 613 from evidence in the legislative history of that statute that Congress believed, or at least hoped, that it would encounter no problem with the Executive branch's furnishing the report Section 613 requires. In passing the immediate predecessor to the present Section 613,
the House of Representatives' report stated that the President had given his assurance that no base closing would be made without the required notice to Congress. In addition, the report then expressed the hope that the Secretary of Defense also recognized Congress as a co-equal partner with the Executive in matters of base closings, and would give the required notice, so that no further, stronger legislation would be necessary. See, H.R. Rep. No. 956, 89th Cong., 1st Sess., at 61, 62 (Sept. 3, 1965).
Such expression suggests to us that Congress felt it would deal with non-compliance with Section 613's requirements if such non-compliance occurred, rather than intending that judicial injunction should be the remedy for non-compliance.
The only reason we can see for having the courts get involved with Section 613 is the relative speed with which a court could act with respect to non-compliance with that section's requirements, compared to the time it would take Congress to act. A court can enjoin much more quickly than Congress could legislate to halt a proposed base closing.
We cannot infer that such reason prompted Congress to intend judicial involvement with Section 613, however, given the other considerations mentioned above. We refer especially to the distinct refusal by Congress even to vest itself with the power to halt a closing by majority resolution of either House, a power that would have enabled Congress to halt a closing virtually as quickly as could any court injunction.
Given the above-mentioned considerations, we do not think it reasonable to presume Congress intended courts to interpret and enforce Section 613 and its requirements. If this presumption is wrong, and Congress intends courts to interpret Section 613 in individual cases, Congress may so instruct the courts. Given the presumption that we have reached, however, and in the absence of any expression of such Congressional intent in either Section 613 or its legislative history, we conclude we may not attempt to decide whether Section 613 has been complied with in this particular case.
While we decide this case on the grounds just set forth, we would add that we believe the issue of whether the requirements of Section 613 have been met, at least in the circumstances of this case, might well be considered a non-justiciable issue because of the difficulty presented in judicially attempting to decide what degree or extent of information Section 613 requires.
This difficulty arises from the complete absence in Section 613 of any standards by which a court can determine the degree of information necessary to constitute a "full" report in any particular case, and the lack of any other objective criteria by which a court can make such a determination. In essence, the only decisive standard by which to judge whether any particular report given Congress meets Section 613's requirements is subjective Congressional opinion. That is, in reality Section 613 requires that degree of information which Congress desires, or that degree of information which will satisfy Congress.
Absent express Congressional determination on the adequacy of any particular report, however, a court has no way to ascertain the adequacy of that report in Congress' opinion. A court cannot, for example, intuit or otherwise "divine" the opinion of Congress.
While the seven Congressional plaintiffs in this case contend the report furnished Congress in this case is inadequate under Section 613, that statute speaks of a full report to Congress, which we read to mean Congress as a whole.
We do not, therefore, believe we could judge the report in question here inadequate under Section 613 because the seven Congressional plaintiffs here believe it so.
Nor do we find any evidence that the seven Congressional plaintiffs here have authority to speak for the entire Congress. We have in fact no evidence that these plaintiffs raised the issue of the report in question here with the Congress as a whole or the Congressional leadership.
In addition, putting aside the issue of the justiciability in cases generally of the adequacy of a report under Section 613, we have in this case a fact which argues at the very least for the non-justiciability of the adequacy of the report in question in this particular case. In this particular case, the Speaker of the House, in a letter to the Department of the Army acknowledging receipt of the report in question here, expressly referred to it as the full report which Section 613 requires. Moreover, the report was subsequently accepted on the floor of the House.
Plaintiffs contend we should give no or little weight to the Speaker's letter and the floor acceptance of the report, since plaintiffs contend these actions were done with no true evaluation of whether the report complied with Section 613. It hardly stands, however for a court to attempt to decide whether to attribute to some action of Congress or a Congressional leader a meaning other than the meaning the action objectively conveys. If we were to reach the merits of the sufficiency under Section 613 of defendants' report in this case, the above described letter of the Speaker and the floor acceptance by the House might dictate strongly in favor of finding the report adequate. Since we do not reach this issue, suffice it to say that these actions by the Speaker and the House dictate strongly in favor of our conclusion that a court could face only great difficulty in attempting to decide the adequacy under Section 613 of a report in any particular case, and that this degree of difficulty could render such issue of a report's adequacy non-justiciable.
In reaching our decisions about Congressional intent as to Section 613 and the justiciability of that section, we would add that we have not failed to consider the temporary restraining order issued by Judge Pettine of the United States District Court for the District of Rhode Island in a case similar to this. National Association of Government Employees, Inc., et al v. Elliot L. Richardson, et al (June 12, 1973). Judge Pettine expressly stated in his opinion accompanying that order that the case presented issues of a highly complex nature, and that he entered the temporary restraining order only so as to preserve the status quo for the moment. Judge Pettine's order thus not only did not expressly deal with the issues we have treated in our opinion, but also can not be read to imply a conclusion on these issues different than those which we have reached.
Accordingly, for the reasons stated above, we must deny plaintiffs' request for an injunction and for declaratory relief.