The opinion of the court was delivered by: BONSAL
This is an action brought by plaintiffs, suing as citizens of the United States and the State of New York, residing in the Southern District of New York, on behalf of all persons similarly situated who are citizens, taxpayers and voters of the United States. The defendants are the President of the United States, Richard M. Nixon, and the Secretary of Defense, Melvin Laird, who are sued both personally and in their official capacities.
In their complaint, filed August 24, 1971, the plaintiffs seek a permanent injunction against the allocation and expenditure of United States funds to finance the war in Southeast Asia or to finance the commission of acts in violation of international law and treaties and of United States Army Regulations regarding the conduct of war, and for a declaratory judgment holding that such expenditures violate specific clauses of the Constitution and amendments thereto and international Conventions.
Jurisdiction is alleged under 28 U.S.C. §§ 1331, 1361, 2201, 2202, 2282, 2284, and the amount in controversy is alleged to be in excess of $10,000.
The complaint alleges two causes of action. The first cause of action alleges that Congress has the exclusive right to declare war under Article I, Section 8, Clause 11 of the Constitution, and that no such declaration has been made although Congress has appropriated over $2,000,000,000. for military activities in Southeast Asia. All this has deprived the plaintiffs of their rights under the Declaration of War Clause by having the funds expended by a unilateral Executive initiation of the war.
The second cause of action alleges that the armed forces of the United States have been guilty of violating the international rules of war, treaties to which the United States is a signatory, and United States Army regulations, by certain conduct more specifically described in paragraph 21 of the complaint. It is further alleged that appropriations made to support such illegal acts of war violate international Conventions more specifically enumerated in paragraph 22 of the complaint and to which the United States is a signatory. The prayer for relief in the complaint requests:
(1) The convening of a three-judge court pursuant to 28 U.S.C. §§ 2282 and 2284;
(2) That the three-judge court issue an order declaring that the authorization and appropriation of expenditures of funds in support of the war in Vietnam, Cambodia and Laos violate Article I, Section 8, Clause 11; Article V; Article VI, cls. 2, 3 of the Constitution; and the Fifth and Ninth Amendments;
(3) That the three-judge court enjoin the defendants from effectuating or implementing any appropriation acts therein described in furtherance of the war in Vietnam, Cambodia and Laos except to the extent that the Executive and Congress may determine the funds are necessary to effectuate prompt withdrawal of American Forces from the area;
(4) That the three-judge court permanently enjoin "the defendant" from effectuating or implementing any of the appropriation acts therein described for such weapons of war as napalm, antipersonnel cluster bombs, etc., defoliants and other weapons found to be illegal under International Law and treaties;
(5) That the three-judge court enjoin other activities therein stated which are violative of International Law and treaties and the Constitution of the United States.
In this motion, the United States Attorney, on behalf of defendants Nixon and Laird, moves to dismiss the action under Rule 12(b) and (f) of the Federal Rules of Civil Procedure on the ground that plaintiffs lack standing, that the complaint raises only nonjusticiable political questions, and that the court lacks jurisdiction over the President of the United States. In addition, the Government moves to strike the name of the President from the caption and to quash the summons directed to him.
Plaintiffs contend that the issue presented in their complaint of whether explicit congressional authorization of the war is constitutionally required in order for the Executive to engage in the military activities in Vietnam, Cambodia and Laos is not a nonjusticiable political question. Plaintiffs further contend that the rule as enunciated in this Circuit in Orlando v. Laird, 443 F.2d 1039 (2d Cir.), cert. denied, 404 U.S. 869, 92 S. Ct. 94, 30 L. Ed. 2d 113 (1971) and DaCosta v. Laird, 448 F.2d 1368 (2d Cir. 1971), cert. denied, 405 U.S. 979, 92 S. Ct. 1193, 31 L. Ed. 2d 255 (1972) is erroneous on the grounds that the constitutional text and debates and the historical development of the Declaration of War Clause make it clear that explicit congressional authorization is required. Nevertheless, this court is bound by the decisions in the above cases that though there has been no formal declaration of war, the evidence of congressional action through appropriations and extensions of the Military Selective Service Act, all of which are admitted by plaintiffs, is sufficient to imply authorization or ratification of the military activity in question and to satisfy the requirements of the Declaration of War Clause. Moreover, the issues which plaintiffs seek to have the court adjudicate involve political questions as to which there is no judicially discoverable or manageable standard. Orlando v. Laird, supra ; DaCosta v. Laird, ...