Berk v. Laird

Court of Appeals for the Second Circuit
1970 U.S. App. LEXIS 8584, 429 F.2d 302 (1970)

ELI5:

Rule of Law:

A challenge to the President's authority to commit military forces to combat without a formal declaration of war is a justiciable controversy and not automatically barred by the political question doctrine; however, a preliminary injunction requires a showing of probable success on the merits and a balance of equities favoring the plaintiff.

Facts:

Malcolm A. Berk enlisted in the United States Army as a private first class.
Berk enlisted with full awareness of the ongoing conflict in Vietnam.
On April 29, 1970, Berk received official orders to report to Fort Dix, New Jersey.
The specific purpose of these orders was to dispatch Berk to South Vietnam for military service.
Berk objected to these orders, contending that his superiors lacked the constitutional authority to send him to a war not explicitly declared by Congress.

Procedural Posture:

Plaintiff Berk sued the Secretary of Defense and other officials in the United States District Court.
Plaintiff filed a motion for a preliminary injunction to stop his deployment.
The District Court denied the motion for a preliminary injunction.
Plaintiff appealed the denial of the injunction to the United States Court of Appeals for the Second Circuit.

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Issue:

Is the constitutionality of the President's order sending a soldier to an undeclared war a justiciable legal question for the courts to decide, and if so, is the plaintiff entitled to a preliminary injunction halting his deployment?

Opinions:

Majority - Anderson

Yes, the court has the power to adjudicate the division of war powers, but No, the preliminary injunction is denied. The court rejected the Government's argument that the President's power as Commander-in-Chief is co-extensive with his foreign affairs power, ruling instead that the war power is shared between the Executive and Legislative branches. Because Congress has the specific power 'to declare War,' a claim that the Executive usurped this power creates a judicially identifiable duty that courts can enforce. Therefore, the issue is justiciable and not automatically a 'political question' beyond the court's reach. However, regarding the specific relief requested, the court found that Berk failed to meet the standard for a preliminary injunction. Congress had likely provided authorization through the Gulf of Tonkin Resolution and various appropriations acts, making Berk's probability of success on the merits doubtful. Furthermore, the balance of equities did not favor Berk, as halting deployments would drastically interfere with the war effort.

Analysis:

This decision is legally significant because it pierces the 'political question' shield that the Executive branch often uses to avoid judicial review of war powers. By declaring that the legality of an undeclared war is justiciable, the Second Circuit asserted that the President's power to deploy troops is not absolute or unreviewable. The court established that while the President is Commander-in-Chief, he shares war-making authority with Congress, and courts have a duty to determine if the Executive has breached constitutional boundaries. However, practically speaking, the court created a high hurdle for plaintiffs by suggesting that implicit congressional actions (like appropriations or resolutions) might suffice as 'authorization' in lieu of a formal declaration of war, making it difficult for soldiers to actually win an injunction.

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