The plaintiff, the Commonwealth of Massachusetts, attempted to bring suit against Melvin Laird, the Secretary of defense during the Nixon administration, seeking to challenge the constitutionality, of the Vietnam War. At issue before the Court is whether to grant the Commonwealth's motion to file a complaint. Students should note that this case comes under the original, as opposed to the appellate, jurisdiction of the Supreme Court. Although the Court denies the motion to file a complaint, Justice Douglas's dissenting opinion is noteworthy for its activist approach to constitutional adjudication.

Memorandum.

The motion for leave to file a bill of complaint is denied.

Mr. Justice Douglas, dissenting.

This motion was filed by the Commonwealth of Massachusetts against the Secretary of Defense, a citizen of another State. It is brought pursuant to a mandate contained in an act of the Massachusetts Legislature. *** Massachusetts seeks to obtain an adjudication of the constitutionality of the United States' participation in the Indochina war. It requests that the United States' participation be declared "unconstitutional in that it was not initially authorized or subsequently ratified by Congressional declaration"; it asks that the Secretary of Defense be enjoined "from carrying out, issuing, or causing to be issued any further orders which would increase the present level of United States troops in Indochina" and it asks that, if appropriate congressional action is not forthcoming within 90 days of this Court's decree, that the Secretary of Defense be enjoined "from carrying out, issuing, or causing to be issued any further order directing any inhabitant of the Commonwealth of Massachusetts to Indochina for the purpose of participating in combat or supporting combat troops in the Vietnam war." Today this Court denies leave to file the complaint. I dissent.

The threshold issues for granting leave to file a complaint in this case are standing and justiciability. At the very least, however, it is apparent that the issues are not so clearly foreclosed as to justify a summary denial of leave to file.

STANDING

In Massachusetts v. Mellon [ 1923], *** the Court held a State lacked standing to challenge, as parens patriate [guardian of its citizens], a federal grant-in-aid program under which the Federal Government was allegedly usurping powers reserved to the States ...

... [The ruling of the Court in that case is not dispositive of this one. The opinion states "we need not go so far as to say that a state may never intervene by suit to protect its citizen's against any form of enforcement of unconstitutional acts of Congress; but we are clear that the right to do so does not arise here." *** Thus the case did not announce a per se rule to bar all suits against the Federal Government as parens patriae....

Mellon relates to an Act of Congress signed by the Executive, a distinction noted in other original actions. ***

Massachusetts attacks no federal statute. In fact, the basis of Massachusetts' complaint is the absence of congressional action.

It is said that the Federal Government "represents" the citizens, Here the complaint is that only one representative of the people, the Executive, acted and the other representatives of the citizens have not acted, although, it is argued, the Constitution provides that they must act before an overseas "war" can be conducted....

In South Carolina v Katzenbach, [1965] *** we denied standing to South Carolina to assert claims under the Bill of Attainder Clause of Article I and principle of separation of powers which were regarded "only as protections for individual persons and private groups who are particularly vulnerable to nonjudicial determinations of guilt." *** Yet we went on to allow South Carolina to challenge the Voting Rights Act of 1965 as beyond congressional power under the Fifteenth Amendment.

The main interest of South Carolina was in the continuing operation of her election laws. Massachusetts' claim to standing in this case is certainly as strong as South Carolina's was in the Katzenbach case.

Massachusetts complains, as parens patriae, that her citizens are drafted and sent to fight in an unconstitutional overseas war. Their lives are in jeopardy. Liberty is impaired.... The allegation in .. Mellon… was that Congress had exceeded the general powers delegated to it by Art 1, § 8, and invaded the reserved powers of the States under the Tenth Amendment claim was not specific.... Here Massachusetts points to.; a specific provision of the Constitution. Congress by Art 1, § 8, has the power "To declare War." ...

... [It] has been settled at least since 1901 that if the health and comfort of the inhabitants of a State are threatened, the State is the proper party to represent and defend them." *** Those cases involved, injury to inhabitants of one State by water pollution of another State, by interference with navigation, by economic losses caused by an out-of-state agency, and the like. The harm of citizens of Massachusetts suffered by being drafted for a war are certainly of no less a magnitude. Massachusetts clearly seems to have standing as parens patriae to represent, as alleged in its complaint, its male citizens being drafted for overseas combat in Indochina.

JUSTICIABILITY

A question that is "political" is opposed to one that is "justiciable". In reviewing the dimensions of the "political" question we said in Baker v Carr, ***

... Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a counts undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question."

1. A textually demonstrable constitutional commitment of the issue to a coordinate political department. At issue here is the phrase in Art I, § 8, cl 11: "To declare War." Congress definitely has that power. The Solicitor General argues that only Congress can determine whether it has that power. The Solicitor General argues that only Congress can determine whether it has declared war. He states, "'To declare War" includes a power to determine, free of judicial interference, the form which its authorization of hostilities will take." This may be correct. But as we stated in Powell v McCormack [ 1969], *** the question of a textually demonstrable commitment and "what is the scope of such commitment are question [this Court] ... must resolve." *** It may well be that it is for Congress, and Congress alone, to determine the form of its authorization, but if that is the case we should only make that determination after full briefs on the merits and oral argument.

2. A lack of judicially discoverable and manageable standards for resolving the issue. The standards that are applicable are not elusive. The case is not one where the Executive is repelling a sudden attack. The present Indochina "war" has gone on for six years. The question is whether the Gulf of Tonkin Resolution was a declaration of war or whether other acts of Congress were its equivalent.

3. The impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion. In Ex parte Milligan [1866] *** (concurring opinion), it was stated that "neither can the President, in war more than in peace, intrude upon the proper authority of Congress. . . ." That issue in this case is not whether we ought to fight a war in Indochina but whether the Executive can authorize it without congressional authorization. This is not a case where we would have to determine the wisdom of any policy.

4. The impossibility of a court’s undertaking independent resolution without expressing lack of respect due coordinate branches of government. The Solicitor General argues it show would disrespect of the Executive to go behind his statements and determine his authority to act in these circumstances. Both Powell and the Steel Seizure Case [1952], *** however, demonstrate that the duty of this Court is to interpret the Constitution, and in the latter case we go behind an executive order to determine authority. ***

It is far more important to be respectful to the Constitution than to a coordinate branch of government.

5. An unusual need for unquestioning adherence to a political decision already made. This test is essentially a reference to a commitment problem and its solution to a coordinate branch of government.

6. The potentiality of embarrassment from multifarious pronouncements by various departments of government on one question. Once again this relates back to whether the problem and its solution are committed to a given branch of government.

We have never ruled, I believe, that when the federal Government takes a person by the neck and submits him to punishment, imprisonment, taxation, or submission to some ordeal, the complaining person may not be heard in court. The rationale in cases such as the present is that government cannot take life, liberty, or property of the individual and escape adjudication by the courts of the legality of its action.

That is the heart of this case. It does not concern the wisdom of fighting in Southeast Asia. Likewise no question of whether the conflict is either just or necessary is present. We are asked instead whether the Executive has power, absent a congressional declaration of war, to commit Massachusetts citizens in armed hostilities on foreign soil. Another way of putting the question is whether under our Constitution presidential wars are permissible. Should that question be answered in the negative we would then have to determine whether Congress has declared war. That question which Massachusetts presents is in my view justiciable....

"The war power of the United States like its other powers ... is subject to constitutional limitations." *** No less than the war power — the greatest leveler of them all — is the power of the Commander-in-Chief subject to constitutional limitations....

This Court has previously faced issues of presidential war making. The legality of Lincoln's blockade was considered in the Prize Cases [1863] *** and although the Court narrowly split in supporting the President's position, the split was on the merits, not on whether the claim was justiciable. And even though that war was the Civil War and not one involving an overseas expedition, the decision was 5 to 4.

In the Steel Seizure Case, members of this Court wrote seven opinions and each reached the merits of the Executive's seizure. In that case, as here, the issue related to the President's powers as Commander-in-Chief and the fact that all nine justices decided the case on the merits and construed the powers of a coordinate branch at a time of extreme emergency should be instructive....

If we determine that the Indochina conflict is unconstitutional because it lacks a congressional declaration of war, the Chief Executive is free to see one, as was President Truman free to seek congressional approval after our Steel Seizure decision.

There is, of course, a difference between this case and the Prize Cases and the Steel Seizure Case. In those cases a private party was asserting a wrong to him: his property was being taken and he demanded a determination of the legality of the taking. Here lives and liberties of Massachusetts citizens are in jeopardy. Certainly the Constitution gives no greater protection to property than to life and liberty. It might be argued that the authority in the Steel Seizure Case was not textually apparent in the Constitution, while the power of the Commander-in-Chief to commit troops is obvious and therefore a different determination on justiciability is needed. The Cases, however, involved Lincoln's exercise of power in ordering a blockade by virtue of his powers as the Commander-in-Chief.

Since private parties — represented by Massachusetts as parens patriae — are involved in this case, the teaching of the Prize Cases and the Steel Seizure Case is that their claims are justiciable....

Today we deny a hearing to a State which attempts to determine whether it is constitutional to require its citizens to fight in a foreign war absent a congressional declaration of war.... The question of constitutional war is neither academic nor political." .. . it should be settled here and now.

I would set the motion for leave to file down for argument and decide the merits only after full argument.

Mr. Justice Harlan and Mr. Justice Stewart dissent. They would set this motion for argument on the questions of standing and justiciability.