COFFIN, Circuit Judge.
The question sought to be raised in this action is whether the United States involvement in Vietnam is unconstitutional, a war not having been declared or ratified by the Congress. Plaintiffs seek a declaration of unconstitutionality and an injunction against the Secretary of Defense barring further orders to duty in Southeast Asia of Massachusetts inhabitants if within ninety days of a decree the Congress has not declared war or otherwise authorized United States participation.
The individual plaintiffs are residents of Massachusetts and members of the United States forces who are either serving in Southeast Asia or are subject to such service. They allege that their forced service in an undeclared war is a deprivation of liberty in violation of the due process clause of the Fifth Amendment. The Commonwealth of Massachusetts is a plaintiff pursuant to an act of its legislature proscribing military service by its inhabitants in the conduct of extra-territorial non-emergency armed hostilities in the absence of a Congressional declaration of war and directing its Attorney General to bring an action in the Supreme Court or, in the event of a final determination that such action is not one of which that Court has original jurisdiction,
The complaint, alleging active engagement by the United States in Indochina in armed hostilities "for the last six years," traces the familiar and unhappy history of escalation since 1950: assistance to the French, the first American casualties in 1959, the accumulation of 23,000 "military advisors" by 1964, the Gulf of Tonkin Resolution in the same year, and the subsequent exponential increase in air strike sorties, troops, casualties, and expenditures. The complaint repeatedly alleges the absence of a Congressional declaration of war or ratification. The Commonwealth alleges damage both as a sovereign state and as parens patriae, citing the deaths and injuries of its inhabitants, consequential loss of their prospective civic and tax contributions, increased claims of dependents, additional burdens on its economy, disadvantage to its absentee voters, mass demonstrations, and damage to its public's morale. It also asserts its interest in "maintaining the integrity of the Constitution" which is allegedly impaired in that "one branch, the executive, has exercised war-making powers, which the Commonwealth and its sister states had agreed would be exercised only by Congress."
The district court dismissed the complaint, relying on the alternate grounds that the controversy was not justiciable and that, if justiciable, continual Congressional legislation in support of the Vietnam war implied sufficient authorization. 327 F.Supp. 378 (D.Mass. 1971).
As to threshold matters, we reject respondent's claim that subject matter jurisdiction is lacking. As we understand the argument, it is partly a restatement of arguments against justiciability.
We do not see, however, that Massachusetts achieves any special status as a protector of the rights of its citizens, solely as United States citizens, and not as a sovereign with unique interests. South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). See also, Note, The Supreme Court as Arbitrator in the Conflict Between Presidential and Congressional War-Making Powers, 50 B.U.L.Rev. 78, 79 n. 9 (Special Issue 1970). The traditional rationale is that the federal government is "the ultimate parens patriae of every American citizen," 383 U.S. at 324, 86 S. Ct. at 816. This admittedly seems inappropriate in a suit challenging the constitutionality of a war waged by the putative parens. Suffice it to say that some of the plaintiffs are properly before us.
While the challenge to the constitutionality of our participation in the Vietnam war is a large question, so also is the question whether such an issue is given to the courts to decide, under the circumstances of this case. The Supreme Court has thus far not ruled on the latter issue in this context. Other federal courts have differed in their rationales.
The Massachusetts statute, pursuant to which plaintiffs bring this action, is based on the simple proposition that participation by the United States in hostilities other than an emergency is unconstitutional unless "initially authorized or subsequently ratified by a congressional declaration of war according to the constitutionally established procedures in Article 1, Section 8 [Clause 11th], of the Constitution."
In any event, despite some language charging the executive with exercising the "war-making powers" of Congress, the thrust of the complaint is not that the executive has usurped a power—the power to declare war—given to Congress. There is no claim that the executive has made any declaration. The charge is, rather, that since hostilities have long since transcended a response to an emergency, both Congress and the executive have acted unconstitutionally in sustaining the hostilities without a Congressional declaration of war. In effect the relief sought by the complaint is to order the executive to "get out or get a declaration from Congress."
Plaintiffs have understandably devoted considerable attention to the criteria of justiciability catalogued in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691 (1962).
We are not so sanguine that these factors can be so easily disposed of. Perhaps
We do not, however, rely on these factors. Partly we feel that to base abstinence on such pragmatic, if realistic, considerations is not desirable unless so clearly dictated by circumstances that it cannot be mistaken as abdication. Moreover, on a question so dominant in the minds of so many, we deem it important to rule as a matter of constitutional interpretation if at all possible. Finally, and of course most pertinently, we derive recent guidance from the Supreme Court's approach in Powell v. McCormack, 395 U.S. 486, 89 S.Ct. 1944 (1969), giving dominant consideration to the first decisional factor listed in Baker v. Carr, supra. This is the inquiry "whether there is a `textually demonstrable constitutional commitment of the issue to a coordinate political department' of government and what is the scope of such commitment." 395 U.S. at 521, 89 S.Ct. at 1964.
To this critical factor of textual commitment, plaintiffs devoted one paragraph of their lengthy brief. They construed the issue as "judicial assessment of executive action in Vietnam against a constitutional standard." So phrased, the issue is of course, by definition, committed to the judiciary. Were the issue to be so defined, the Court in Powell v. McCormack, supra, would have spared itself much difficulty by stating simply that the issue was "judicial assessment of the action of the House in expelling a member against a constitutional standard."
These observations do not spare us the task of trying to identify the scope of the power which has been committed to a coordinate branch in this case. The complaint at one point alleges that the executive has usurped the war-making power of Congress but more generally alleges that the executive errs only in proceeding to make war without Congressional declaration or ratification. This very ambiguity underscores the fact that the war power of the country is an amalgam of powers, some distinct and others less sharply limned. In certain respects, the executive and the Congress may act independently. The Congress may without executive cooperation declare war, thus triggering treaty obligations and domestic emergency powers. The executive may without Congressional participation repel attack,
While the fact of shared war-making powers is clearly established by the Constitution, however, and some of its elements are indicated, a number of relevant specifics are missing. The Constitution does not contain an explicit provision to indicate whether these interdependent powers can properly be employed to sustain hostilities in the absence of a Congressional declaration of war. Hence this case.
The brief debate of the Founding Fathers sheds no light on this.
Under these circumstances, what can we say was "textually committed" to the Congress or to the executive? Strictly speaking, we lack the text. Yet if "[d]eciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation", Baker v. Carr, supra, 369 U.S. at 211, 82 S.Ct. at 706, surely our task is more than parsing. We must have some license to construe the sense of the Constitutional framework, wholly apart from any doctrine of implied powers inherent in sovereignty, cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 315-318, 57 S.Ct. 216, 81 L.Ed. 255 (1936).
We observe, first, that the Founders' silence on the subject of hostilities beyond repelling attack and without a declaration
Secondly, we note that the Congressional power to declare war implies a negative: no one else has that power. But is the more general negative implied —that Congress has no power to support a state of belligerency beyond repelling attack and short of a declared war? The drafters of the Constitution, who were not inept, did not say, "power to commence war". Nor did they say, "No war shall be engaged in without a declaration by Congress unless the country is `actually invaded, or in such imminent Danger as will not admit of delay.'" (Language from Article I, Section 10, proscribing states from engaging in war.) Nor did they resort to other uses of the negative as they so often did elsewhere. See, e. g., Article I, Section 9. And the "declare" power was not, like the "judge" power of the House of Representatives, Article I, Section 5, in a context limited by another specific provision, such as that specifying the three qualifications of a Representative. See Powell v. McCormack, supra.
Finally, we give some significance to the fact that in the same "power to declare war clause", Article I, Section 8, Clause 11th, there is the power to grant letters of marque and reprisal. Were this a power attendant to and dependent upon a declared war, there would be no reason to specify it separately. Indeed, it was first broached by Gerry as a matter not included in the "declare" power. 2 Farrand 326. Nevertheless, this is a power to be invoked only against an enemy. It is clear that there can be an "enemy", even though our country is not in a declared war. Bas v. Tingy, 4 U.S. (4 Dall.) 37, 1 L.Ed. 731 (1800).
As to the power to conduct undeclared hostilities beyond emergency defense, then, we are inclined to believe that the Constitution, in giving some essential powers to Congress and others to the executive, committed the matter to both branches, whose joint concord precludes the judiciary from measuring a specific executive action against any specific clause in isolation. Cf. Oetjen v. Central Leather Co., 246 U.S. 297, 302, 38 S.Ct. 309, 62 L.Ed. 726 (1918).
In the circumstance where powers are interrelated, Mr. Justice Jackson has said that:
We need not go so far as to say that in a situation of shared powers, the executive acting and the Congress silent, no constitutional issue arises. Here the complaint itself alleges the escalation of expenditures supporting United States efforts in Vietnam from $1.7 billion in 1965 to over $30 billion annually today, and a total expenditure over the past decade of $110 billion. Whether or not such appropriating and other actions of the Congress during the past six years can be said to amount to an "equivalent" of a declaration, or express or implied ratification is an issue we do not reach. At the very least, the complaint reveals a prolonged period of Congressional support of executive activities.
The question remains to be asked: when the executive and Congress disagree not as to the advisability of fighting a war but as to the appropriate level of fighting, how shall the Constitution be served? When the executive takes a strong hand, Congress has no lack of corrective power. Congress has the power to tax, to appropriate, to impound, to override a veto. The executive has only the inherent power to propose and to implement, and the formal power to veto. The objective of the drafters of the Constitution was to give each branch "constitutional arms for its own defense". The Federalist No. 23, at 476 (Mod. Lib. ed.) (Hamilton). But the advantage was given the Congress, Hamilton noting the "superior weight and influence of the legislative body in a free government, and the hazard to the Executive in a trial of strength with that body." Id. at 478.
All we hold here is that in a situation of prolonged but undeclared hostilities, where the executive continues to act not only in the absence of any conflicting Congressional claim of authority but with steady Congressional support, the Constitution has not been breached. The war in Vietnam is a product of the jointly supportive actions of the two branches to whom the congeries of the war powers have been committed. Because the branches are not in opposition, there is no necessity of determining boundaries. Should either branch be opposed to the continuance of hostilities, however, and present the issue in clear terms, a court might well take a different view. This question we do not face. Nor does the prospect that such a question might be posed indicate a different answer in the present case.