Orlando v. Laird - 443 F.2d 1039 (2d Cir. 1971)

Rule:

The constitutional delegation of the war-declaring power to the U.S. Congress contains a discoverable and manageable standard imposing on the Congress a duty of mutual participation in the prosecution of war. Judicial scrutiny of that duty, therefore, is not foreclosed by the political question doctrine. The test is whether there is any action by the Congress sufficient to authorize or ratify the military activity in question.

Facts:

Shortly after receiving orders to report for transfer to Vietnam, Pfc. Malcolm A. Berk and Sp. E5 Salvatore Orlando, enlistees in the United States Army, commenced separate actions in June, 1970, seeking to enjoin the appellees, the Secretary of Defense, the Secretary of the Army and the commanding officers, who signed their deployment orders, from enforcing them. The plaintiffs-appellants contended that these executive officers exceeded their constitutional authority by ordering them to participate in a war not properly authorized by Congress. The district court denied a motion for a preliminary injunction and granted appellees summary judgment, and appellants sought review.

Issue:

Did the executive officers exceed their constitutional authority by ordering the army enlistees to participate in the Vietnam War?

Answer:

No.

Conclusion:

The court held that congressional action, including the furnishing of manpower and materials of war for protracted military operations in Vietnam was sufficient, without an explicit declaration for making of war by the President, to authorize or ratify military action in Vietnam, and thus the executive officers did not exceed their constitutional authority by ordering the army enlistees to participate in the war. The judgments were affirmed.