Schlesinger v. Holtzman

In July of 1973 shortly after Congress' action to cut off funding, Congressional Representative Elizabeth Holtzman, a Democrat from New York, and several U.S. Air Force officers serving in Asia filed suit in U.S. district court challenging the constitutional basis for continued bombing. Holtzman argued the military action was not authorized by Congress and consequently violated the Constitution.

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 injunction in order to hear the government's argument. With the Supreme Court out of session, Holtzman immediately appealed the court action directly to the Supreme Court's Justice Marshall. Holtzman was taking advantage of a Court rule that allows 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 division of 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 with Holtzman and reinstated the bombing injunction. The Solicitor General of the United States on 4 August requested Chief Justice Burger bring the full Court into session to act on Douglas's decision. The request was instead directed back to Justice Marshall.