Schlesinger v. Holtzman

Petitioner
James Schlesinger, Secretary of Defense
Respondent
Rep. Elizabeth Holtzman (D-NY) and several Air Force officers
Petitioner's Claim
That without decisive opposition by Congress the president has constitutionalauthority to conduct air combat over Cambodia.
Justices for the Court
Harry A. Blackmun, William J. Brennan, Jr., Warren E. Burger (writing for theCourt), Thurgood Marshall, Lewis F. Powell, Jr., William H. Rehnquist, Potter Stewart, Byron R. White
Justices Dissenting
William O. Douglas
Place
Washington, D.C.
Date of Decision
4 August 1973
Decision
Upheld the U.S. claim and affirmed a court of appeals decision by reversing Justice Douglas's decision to temporarily halt U.S. bombing in Cambodia.
Significance
The ruling established that the president can commit U.S. forces to combat when not decisively challenged by Congress. The Court has consistently avoidedforeign policy disputes between the president and Congress and also resistedmaking adverse decisions against presidential action during times of war. Byinvoking the "political decision doctrine," the Court has held that legal challenges by members of Congress against the president are more political questions than legal and should not be left to the courts to resolve.
Consistent with the separation of powers in the federal government, the Constitution splits the power of waging war between the legislative and executivebranches. Congress in Article I has power to declare war and raise and maintain armies. The president, acting as commander in chief, conducts war as allowed by Article II. The Supreme Court's role in the process has historically been minor. The "political question doctrine" evolved through Court history inwhich the Court established that certain issues, often involving foreign policy, can only be resolved by the "political" branches of government and are not subject to judicial resolution.
A key Court decision regarding presidential powers was delivered in the opinion associated with United States v. Curtiss-Wright Export Corp. in 1936. The Court found that the power to wage war did not primarily derive from the Constitution, but was a natural part of being a sovereign nation. Others,though, still insisted the Constitution played a greater role in the decisionto wage war than the Court acknowledged and therefore the act of declaring war was subject to judicial review. Rarely has the Court actually issued a decision on a challenge during the actual course of a war. Often, decisions followed the conclusion of war activities, thus avoiding the disruption of ongoing efforts.
Following united efforts between Congress and the White House in World War II, the role of the president in conducting wars gradually become more expansive. The president's ability to act with greater swiftness, secrecy, and decisiveness posed a distinct advantage in a world of nuclear deterrence and Cold War. Congress' inaction in setting foreign policy essentially gave the president much greater leeway in committing U.S. forces to places such as Korea in 1950. During the Korean conflict, Congress did not issue formal declarations of war.
Recognizing the difficult task of passing bills on controversial foreign policy issues, Congress began to allow resolutions, called "legislative vetoes,"into various forms of legislation when opposing certain presidential actions.By the 1970s with the increasing rift between the executive branch and Congress over the Vietnam War, the practice of issuing legislative vetoes became apopular means of expressing congressional foreign policy preferences.
The Court ruled on several occasions that Congress' appropriation of funds tosupport an undeclared war constituted congressional approval. The Vietnam War was such a case. In addition to approving funds, Congress passed the Gulf of Tonkin Resolution in 1964 which gave President Lyndon Johnson essentially unlimited war powers to commit U.S. forces in Southeast Asia. The undeclared nature of the Vietnam War was challenged on several occasions in the lower courts, but the Supreme Court consistently refused to hear appeals of lower court decisions. By late April of 1970 President Richard Nixon publicly acknowledged U.S. military involvement in Cambodia where the United States was launching a series of major attacks. Following withdrawal of ground troops from Cambodia later that June, Congress prohibited further use of funds for military operations in Cambodia. But the bombing in Cambodia continued, focusing on supposed Communist troop sanctuaries. Congress revised its position by stating funds could be spent, but only for purposes of ensuring the safety of U.S. troop withdrawal or to aid in the release of American prisoners of war.
In January of 1973 the Paris cease-fire agreement with North Vietnam was signed. By early April the last American troops left Vietnam and all known prisoners of war were released. However, the bombing of Cambodia continued. Responding to outrage in the United States and other countries, Congress intensifiedits efforts through early 1973 to end American air combat over Cambodia by refusing to authorize increased funding requested by the executive branch. Finally, by late June Congress took actions to discontinue funding of all combatactivities in North and South Vietnam, Laos, and Cambodia as of mid-August.The use of a congressional defense appropriations bill to ban ongoing military combat operations and limit presidential options was unprecedented.
A Unique Series of Events
In July of 1973 shortly after Congress' action to cut off funding, Congressional Representative Elizabeth Holtzman, a Democrat from New York, and severalU.S. Air Force officers serving in Asia filed suit in U.S. district court challenging the constitutional basis for continued bombing. Holtzman argued themilitary action was not authorized by Congress and consequently violated theConstitution.
The United States argued before the court that congressional action in setting the mid-August ending date represented approval of the bombing prior to that date. However, the district court disagreed by finding no real congressional authority for the United States combat in Cambodia. The court issued a permanent injunction halting all military operations in that country after 27 July.
The United States appealed the district court decision to the U.S. Court of Appeals for the Second Circuit seeking a delay of the district court's injunction. On 27 July the appeals court issued a temporary delay of the injunctionin order to hear the government's argument. With the Supreme Court out of session, Holtzman immediately appealed the court action directly to the SupremeCourt's Justice Marshall. Holtzman was taking advantage of a Court rule thatallows a justice to individually issue a "stay," a suspension of a previous judicial decision, to temporarily stop action so that the entire Court may hear it when next convened as a group. In Holtzman v. Schlesinger, Marshall wrote on 1 August that there were "questions of standing, judicial competence, and substantive constitutional law which go to the roots of the divisionof power in a constitutional democracy." Because of the near unprecedented role of the Court in such disputes over the constitutionality of waging undeclared war on foreign soil, the issue clearly deserved the full Court's deliberation. Marshall denied Holtzman's appeal of the delay on the injunction.
The following day Holtzman's attorney traveled to the home town of Justice Douglas in the state of Washington. On 3 August Justice Douglas concurred withHoltzman and reinstated the bombing injunction. The Solicitor General of theUnited States on 4 August requested Chief Justice Burger bring the full Courtinto session to act on Douglas's decision. The request was instead directedback to Justice Marshall.
The Court Defers Action Again
In issuing his decision, Justice Marshall wrote on behalf of the other sevenconcurring justices with whom he communicated that day. Marshall, noting thatthe court of appeals had scheduled a hearing on the case for 8 August, wished to not insert the Court in the dispute at that time and reversed Douglas'sorder. Marshall reissued the stay against the district court's original injunction stopping the bombing.
Douglas, being the lone dissenter, wrote that though he disagreed with the Court's action regarding the bombing issue, his concern was even greater over the manner in which the Court overruled his decision. Douglas pointed out thata single justice has legal authority to issue stays during a recess, but another justice does not have legal authority to reverse that stay once granted.Douglas also noted the Court did not have legal authority to decide cases unless at least six justices were present. He asserted telephone calls did notlegally serve the same purpose as the justices being in a single location tostudy briefs and exchange views. Douglas wrote, "A Gallup Poll type of inquiry of widely scattered Justices" was contrary not only to law that requires aquorum of six justices to be present, but to the principles of the Court as "a deliberative body that acts only on reasoned bases after full consideration." In Rosenburg v. United States, the Court had determined that it was"necessary and proper to meet together in Special Term before stays grantedby an individual Justice out of Term could be overturned."
Impact
On 8 August, the court of appeals did hear the case. The court permanently reversed the district court's injunction on the bombing, allowing military action to proceed. The U.S. bombing missions had continued throughout this time period, even through the several hours that Douglas's reinstatement of the injunction was in effect. Eventually, the bombing did stop by mid-August as Congress had directed, and before the case could reach the full Supreme Court. The district court's earlier injunction against the bombing on behalf of a member of Congress was unique in U.S. legal history.
The doctrine also arose in non-war foreign policy issues such as Goldwaterv. Carter in 1979 in which President Jimmy Carter sought to terminate adefense treaty with Taiwan in order to normalize relations with China. Due tothe lack of congressional action to stop Carter, the Court dismissed the case. The Court found Carter's actions were inherently political and could not be judged in a court of law.
The Cambodian bombing issue also led to passage of the Wars Powers Act over Nixon's veto in November of 1973. In an effort to reclaim war powers from thepresidency, the act empowered Congress to order troop withdrawals through joint house resolutions in cases where Congress had not declared war or given any other form of authorization. The War Powers Act, however, did not fare wellin Supreme Court decisions, with the Court continuing to defer to the president in foreign policy. In responding to cases filed by members of Congress challenging use of U.S. forces in the Middle East in the late 1980s, the Courtdismissed the cases by invoking the political question doctrine. Congressional attempts to reform the War Powers Act continued into the 1990s.
The Court also found congressional use of legislative vetoes unconstitutionalin the 1983 Immigration and Naturalization Service v. Chadha ruling.The Court held the use of such legal tools was counter to the constitutionalprinciples of shared powers by circumventing presidential authority. Congresshas continued to use them, however, with few legal challenges.
The Schlesinger case dramatized the Supreme Court's reluctance to be involved in disputes between the presidency and Congress over foreign policy in general, and issues of war in particular. The Court has consistently held that a true confrontation between Congress as a whole and the president must first occur before the Court should be brought into the dispute. In essence, the Court has chosen not to perform the work of Congress in contesting presidential actions. Congress has been very reluctant to appear not to back the president in foreign crises, especially where the safety of American forces areat risk. The political question doctrine has meanwhile served the purpose ofnot leaving federal courts open to undercutting national unity in times of crises.
Related Cases

• United States v. Curtiss-Wright Corp., 299 U.S. 304 (1936).
  
• Rosenburg v. United States, 346 U.S. 273 (1953).
  
• Holtzman v. Schlesinger, 414 U.S. 1304 (1973).
  
• Goldwater v. Carter, 444 U.S. 996 (1979).
  
• Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983).