Mora v. McNamara/Dissent Stewart

Mr. Justice STEWART, with whom Mr. Justice DOUGLAS joins, dissenting.

The petitioners were drafted into the United States Army in late 1965, and six months later were ordered to a West Coast replacement station for shipment to Vietnam. They brought this suit to prevent the Secretary of Defense and the Secretary of the Army from carrying out those orders, and requested a declaratory judgment that the present United States military activity in Vietnam is 'illegal.' The District Court dismissed the suit, and the Court of Appeals affirmed.

There exist in this case questions of great magnitude. Some are akin to those referred to by Mr. Justice Douglas in Mitchell v. United States, 386 U.S. 972, 87 S.Ct. 1162, 18 L.Ed.2d 132. But there are others:

I. Is the present United States military activity in Vietnam     a 'war' within the meaning of Article I, Section 8, Clause 11      of the Constitution?

II. If so, may the Executive constitutionally order the     petitioners to participate in that military activity, when no      war has been declared by the Congress?

III. Of what relevance to Question II are the present treaty     obligations of the United States?

IV. Of what relevance to Question II is the joint     Congressional ('Tonkin Bay') Resolution of August 10, 1964? (a) Do present United States military operations fall  within the terms of the Joint Resolution?

(b) If the Joint Resolution purports to give the Chief     Executive authority to commit United States forces to armed      conflict limited in scope only by his own absolute      discretion, is the Resolution a constitutionally      impermissible delegation of all or part of Congress' power to      declare war?

These are large and deeply troubling questions. Whether the Court would ultimately reach them depends, of course, upon the resolution of serious preliminary issues of justiciability. We cannot make these problems go away simply by refusing to hear the case of three obscure Army privates. I intimate not even tentative views upon any of these matters, but I think the Court should squarely face them by granting certiorari and setting this case for oral argument.