DaCosta v. Laird/Dissent 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. 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., [p980] 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. 1, § 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 [p981] 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.