DACOSTA
v.
LAIRD, SECRETARY OF DEFENSE, ET AL.

U.S. | 1972-03-06
No. 71-833
Mr. Justice Brennan is of the opinion that certiorari should be granted.
405 U.S. 979 Supreme Court of the United States (1972) Negative Treatment
Cited by 12 cases
Topics
Textually Demonstrable Constitutional Commitment Justiciability Separation Of Powers

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Dissent
Mr. Justice Douglas,

Mr. Justice Douglas,

dissenting.

Once again, this Court is confronted with a challenge to the constitutionality of the presidential war which has raged in Southeast Asia for nearly a decade.1 Once again, it denies certiorari. Once again, I dissent.

I have expressed at length my view that the constitutional questions raised by conscription for a presidential war are both substantial and justiciable. See, e. g., Massachusetts v. Laird, 400 U. S. 886 (Douglas, J., dissenting ) (Mass. I); Hart v. United States, 391 U. S. 956 (Douglas, J., dissenting); Holmes v. United States, 391 U. S. 936 (Douglas, J., dissenting); Mora v. McNamara, 389 U. S. 934, 935 (Douglas, J., dissenting); Mitchell v. United States, 386 U. S. 972 (Douglas, J., dissenting).

The circuits are in conflict as to the justiciability of these questions. Compare Massachusetts v. Laird, 451 F. 2d 26 (CA1 1971) (Mass. II), and Orlando v. Laird, 443 F. 2d 1039 (CA2 1971), with Velvel v. Nixon, 415 F. 2d 236 (CA10 1969), and Luftig v. McNamara, 126 U. S. App. D. C. 4, 373 F. 2d 664 (1967).

This Court, of course, should give deference to the coordinate branches of the Government. But we did not defer in the Prize Cases, 2 Black 635, when the issue was presidential power as Commander in Chief to order a blockade. We did not defer in the Steel Seizure Case,

when the issue was presidential power, in time of armed international conflict, to order the seizure of domestic steel mills. Nor should we defer here, when the issue is presidential power to seize, not steel, but people. See Mass. I, supra, at 891-900.

The Constitution gives Congress the power “To declare War,” Art. I, § 8; and it is argued that the Constitution gives to Congress the exclusive power to determine when it has declared war. But if there is such a “textually demonstrable constitutional commitment,” Baker v. Carr, 369 U. S. 186, 217, it is for this Court to determine its scope. Powell v. McCormack, 395 U. S. 486, 521. See Mass. I, supra, at 892.

While we debate whether to decide the constitutionality of this war, our countrymen are daily compelled to undergo the physical and psychological tortures of armed combat on foreign soil. Families and careers are disrupted; young men maimed and disfigured; lives lost. The issues are large; they are precisely framed; we should decide them.

Petitioner DaCosta is a Portuguese citizen permanently resident in the United States. He was conscripted into the United States Army in December 1970, and commenced this action in July 1971, to enjoin enforcement of military orders deploying him to Vietnam. He alleges that participation by the United States in the Vietnamese conflict has not been authorized by Congress conformably with the Constitution, and that absent such authorization, Congress has no power to conscript for military service in armed conflict overseas.

Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579.

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Citator

Cited By (11 total)

  • Solomon Lusby v. T.G. & Y. Stores, Inc., 749 F.2d 1423 (10th Cir. 1984)
    …inal activity” 24 hours a day); Robinson v. Davis, 447 F. 2d 753, 758-59 (4th Cir.1971) (no action under color of state law when plaintiffs knew that college security officials in police uniform were acting as private security guards), cert. denied, 405 U.S. 979, 92 S.Ct. 1204, 31 L.Ed.2d 254 (1972); Watkins v. Oaklawn Jockey Club, 183 F. 2d 440, 443 (8th Cir.1950) (no state action when officer made no pretense that he was acting under state law). . See El Fundi v. Deroche, 625 F. 2d 195, 196 (8th Cir.1980…
  • Holtzman v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973)
    …ncy by Executive Order ratified by appropriation). And this Circuit has expressly held that congressional authorization for the war in Vietnam may be found in appropriations acts. Da Costa v. Laird, 448 F. 2d 1368, 1370 (2d Cir. 1971), cert, denied, 405 U.S. 979, 92 S.Ct. 1193, 31 L.Ed.2d 255 (1972) (Da Costa II). Orlando v. Laird, supra, 443 F. 2d at 1042. I do not, moreover, agree with appel-lees’ argument that the Fulbright “proviso” adopted in all of the recent appropriations bills and limiting the use…
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  • Stengel v. Belcher, 522 F.2d 438 (6th Cir. 1975)
    …actor or even the status of being on duty, or off duty, which determines whether the officer has acted under col- or of law.” Johnson v. Hackett, 284 F.Supp. 933, 937 (E.D.Pa.1968). See Robinson v. Davis, 447 F. 2d 753 (4th Cir. 1971), cert. denied, 405 U.S. 979, 92 S.Ct. 1204, 31 L.Ed.2d 254 (1972). The chemical mace which Belcher sprayed was issued to him by the Columbus police department. Belcher carried his pistol pursuant to a regulation of the police department which required off-duty officers to car…

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