William O. Douglas

“ The harm to citizens of Massachusetts suffered by being drafted for a war are certainly of no less a magnitude. Massachusetts would clearly seem to have standing as parens patriae to represent as alleged in its complaint, its male citizens being drafted for overseas combat in Indochina. ”

“ Here the lives and liberties of Massachusetts citizens are in jeopardy. Certainly the Constitution gives no greater protection to property than to life and liberty. It might be argued that the authority in the Steel Seizure Case was not textually apparent in the Constitution, while the power of the Commander-in-Chief to commit troops is obvious and therefore a different determination on justiciability is needed. ”

“ In fact, the basis of Massachusetts' complaint is the absence of congressional action.
It is said that the Federal Government 'represents' the citizens. Here the complaint is that only one representative of the people, the Executive, has acted and the other representatives of the citizens have not acted, although, it is argued, the Constitution provides that they must act before an overseas 'war' can be conducted. ”

“ It does not concern the wisdom of fighting in Southeast Asia. Likewise no question of whether the conflict is either just or necessary is present. We are asked instead whether the Executive has power, absent a congressional declaration of war, to commit Massachusetts citizens in armed hostilities on foreign soil. Another way of putting the question is whether under our Constitution presidential wars are permissible? Should that question be answered in the negative we would then have to determine whether Congress has declared war. ”

“ The contention is that presidential power should be implied from the aggregate of his powers under the Constitution. Particular reliance is placed on provisions in Article II which say that 'The executive Power shall be vested in a President * * *'; that 'he shall take Care that the Laws be faithfully executed'; and that he 'shall be Commander in Chief of the Army and Navy of the United States.'
'The order cannot properly be sustained as an exercise of the President's military power as Commander in Chief of the Armed Forces. ”

“ A question that is 'political' is opposed to one that is 'justiciable.' In reviewing the dimensions of the 'political' question we said in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663:
'* * * Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion ”

“ It was said in Mellon:
' [T] he citizens of Massachusetts are also citizens of the United States. It cannot be conceded that a State, as parens patriae, may institute judicial proceedings to protect citizens of the United States from the operation of the statutes thereof. While the State, under some circumstances, may sue in that capacity for the protection of its citizens (Missouri v. Illinois, 180 U.S. 208, 241, 21 S.Ct. 331, 45 L.Ed. 497) , it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. ”

“ We have never ruled, I believe, that when the Federal Government takes a person by the neck and submits him to punishment, imprisonment, taxation, or submission to some ordeal, the complaining person may not be heard in court. ”

“ See generally, Note, The Congress, the President, and the Power to Commit Forces to Combat, 81 Harv.L.Rev. 1771 (1968) .↑ The majority in Milligan stated: 'The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances.' 4 Wall., at 120-121, 18 L.Ed. ”

“ Massachusetts complains, as parens patriae, that her citizens are drafted and sent to fight in an unconstitutional overseas war. Their lives are in jeopardy. Their liberty is impaired.
Furthermore, the basis on which Flast distinguished Frothingham is also present here. The allegation in both Mellon and Frothingham was that Congress had exceeded the general powers delegated to it by Art. ”