In an otherwise thoughtful article about many of the complex separation of powers issues raised by President Donald Trump’s blitzkrieg against the structure and personnel of his own government, Professor John Yoo and Robert Delahunty inaccurately describe the government’s response in August 1973 to efforts by then-Congresswoman Elizabeth Holtzman and an extraordinarily brave cohort of Air Force pilots stationed at U-Tapao Air Force base in Thailand to persuade the federal courts to enjoin the unlawful carpet bombing of Cambodia. As a young ACLU lawyer, I argued the Holtzman case and speak from personal memory.
Yoo and Delahunty assert that the military simply “ignored” judicial efforts to enjoin the bombing of Cambodia. They are not alone in that assessment, but it is wrong. In fact, every participant in the Holtzman case, including the government lawyers, the Pentagon, and every single judge, endorsed the principle that the military was – and is – bound to abide by court orders defining the parameters of lawful military activity. In the Holtzman case, the Pentagon, alerted that a potential court order enjoining the bombing of Cambodia was imminent, prepared careful directives to suspend the bombing, acting under well-settled separation of powers principles established in Youngstown Steel v. Sawyer, enjoining the military from seizing the nation’s steel mills during the Korean War. In the end, as Secretary Schlesinger explained, the suspension orders were not transmitted only because the fast-moving events in the United States courts and the time lag between the United States and Cambodia made it impossible to effectuate timely service of Justice William Douglas’ order on the Secretary of Defense. Indeed, the Defense Department said Schlesinger was never served because the full Supreme Court overruled Justice Douglas within six-and-a-half hours later.
The legal issue in Holtzman v. Schlesinger was straightforward. Article 1, section 8 grants the exclusive power to declare war to Congress, not the President. The Founders wished to avoid the 18th century British system which authorized the King to declare war unilaterally. During the 1960s, Congress never summoned the political courage to vote explicitly on whether to authorize the Vietnam War. Instead, our uninspiring lawmakers often voted for military appropriations from one side of their mouths, while attacking the war from the other. As the war wound down, Congress finally summoned the will to enact legislation banning the President from carpet bombing Cambodia on the way out of Vietnam.
The extraordinary Brooklyn federal trial judge who presided over the Holtzman case, Judge Orrin Judd, recognized four dissenting Air Force pilots as proper plaintiffs and declared the bombing unlawful. Judge Judd ruled that once Congress had clearly declined to authorize the bombing, the President’s authority as Commander-in-Chief ended. Judge Judd stayed his ruling for 48 hours to allow the government to appeal. The federal appeals court promptly issued a stay pending an expedited appeal.
I then flew to Washington, D.C. and sought to persuade Supreme Court Justice Thurgood Marshall to reinstate Judge Judd’s injunction pending appeal. Justice Marshall told me in his Washington, D.C. chambers that he sympathized and agreed with Judge Judd’s ruling, but believed that the full Court would reverse it, not because the ruling was legally wrong, but because a majority of the Court believed that Congress should act, not the courts. Justice Marshall believed that, he, sitting as a single Justice during the Court’s summer recess, lacked the power to act contrary to the will of the Court’s likely majority. I argued with Justice Marshall for more than an hour but could not shake his belief that he lacked power to reinstate Judge Judd’s injunction. At no point in the extensive, often emotional argument did Justice Marshall suggest that our efforts were meaningless because the military would be free to ignore a court order.
I then flew to Portland, Oregon, rented a car and drove through the night to Yakima, Washington, to ask Justice William O. Douglas to reinstate the injunction. Justice Douglas heard oral argument on the morning of August 3 in the Yakima Post Office. Later that afternoon, after I had boarded a flight back to New York City, Justice Douglas announced his decision to vacate the Second Circuit stay and reinstate Judge Judd’s injunction. It is unclear whether Justice Douglas’ order was entered late on August 3, or on the morning of Aug. 4. Justice Douglas’ reinstatement order does not appear to have been entered until the morning of Aug. 4.
At no point during the extensive oral argument on August 3 did anyone, including the lawyers for the government, suggest that the proceedings were meaningless because the military was empowered to simply ignore any court order. Indeed, the universal understanding was that respect for the rule of law would compel compliance.
On Aug 4, the full Supreme Court convened in an unprecedented rudimentary conference call and voted to override Justice Douglas’ stay by issuing its own stay blocking enforcement of the injunction pending an immediate hearing in the appeals court on the merits of the case.
Once again, at no point in the extraordinary conference call session of the Court, did any participant suggest that the military would not be bound to follow the orders of the Court. Indeed, it was the recognition by every Supreme Court Justice that the military would be bound to comply with Justice Douglas’s order that precipitated the Court’s extraordinary conference call session. Indeed, Deputy Assistant Secretary of Defense Dennis Doolin wrote in August of 1973:
“In the event that the Department of Defense had been served with Mr. Justice Douglas’ order on August 4, 1973, rapid dissemination of the order would have occurred with dispatch of prepositioned instructions from the Pentagon.”
We argued the merits several days later before a three judge Second Circuit panel in Manhattan. Judge James Oakes voted to affirm Judge Judd and to reinstate the injunction. Judges Mulligan and Timbers believed that Congress was the more appropriate forum to enforce the law against the President and voted to reverse on “political question” grounds.
I unsuccessfully sought review in the Supreme Court, where the case ended with a whimper. The government assured the Court that the bombing had ended. The dissenting pilots were granted honorable discharges. Once again, nothing in the Supreme Court papers filed by either side suggested that the court proceedings were superfluous because the military was free to ignore the courts’ orders.
I believe that we would be a safer country today if the opinions of Justice Douglas, Judge Oakes, and Judge Judd had been affirmed by the full Court. But nothing in the case even suggests that the military, acting under unilateral Presidential instructions, is empowered to ignore court orders. If that day arrives, we risk ushering in a regime of “one person, one vote, one time,” under which an elected despot can invoke the military and rule this nation by force, ending the rule of law once and for all.