Schlesinger v. Holtzman

On April 29, 1970, President Richard Nixon ordered the Cambodian Campaign, a secret military invasion lacking congressional approval.David J. Barron & Marty Lederman, [http://cdn.harvardlawreview.org/wp-content/uploads/pdfs/barron_lederman2.pdf The Commander in Chief at the Lowest Ebb - A Constitutional History,] 121 Harv. L. Rev. 941 (2008). Congress responded by passing the Cooper–Church Amendment, which defunded the invasion. Assistant Attorney General William Rehnquist wrote an Office of Legal Counsel memorandum advising that the Constitution's Commander in Chief clause should authorize President Nixon’s campaign anyway,[https://www.justice.gov/sites/default/files/olc/opinions/1970/05/31/op-olc-supp-v001-p0321_0.pdf Memorandum from William H. Rehnquist], Assistant Att’y Gen., Office of Legal Counsel, to Charles Colson, Special Counsel to the President 20 (May 22, 1970). and Rehnquist testified as to such before the United States House Committee on Foreign Affairs.Congress, the President, and the War Powers: Hearing Before the Subcomm. on National Security, Policy and Scientific Developments of the H. Comm. on Foreign Affairs, 91st Cong. 216 (1970).

President Nixon then began Operation Freedom Deal, an extensive bombing campaign over most of Cambodia. In June 1973, Congress voted to discontinue funding of all combat activities in Cambodia.{{citation needed|date=August 2022}} President Nixon vetoed the bill, which Congress narrowly failed to override.[http://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3378&context=penn_law_review Louis Fisher, Unchecked Presidential Wars], 148 U. Pa. L. Rev. 1637 (2000). Congress and the President then agreed to the compromise Case–Church Amendment, which would end all bombing on August 15, 1973.

Brooklyn Congresswoman Elizabeth Holtzman voted against the compromise, then sued Defense Secretary James R. Schlesinger to immediately stop the bombings.[https://scholar.google.com/scholar_case?q=%22elizabeth+holtzman%22&hl=en&as_sdt=2006&case=17940908323951053259&scilh=0 Holtzman v. Schlesinger], 484 F.2d 1307 (2d Cir. 1973). On July 25, U.S. District Judge Orrin Grimmell Judd granted summary judgment for Congresswoman Holtzman and issued a permanent injunction ordering the military to refrain “from participating in any way in military activities in or over Cambodia or releasing any bombs which may fall in Cambodia.”[https://scholar.google.com/scholar_case?case=4642963220591275253&hl=en&as_sdt=2006 Holtzman v. Schlesinger], 361 F. Supp. 553 (E.D.N.Y. 1973). Judge Judd gave the military until Friday, July 27, before his order would come into effect. On July 27, a unanimous panel of the United States Court of Appeals for the Second Circuit issued a stay of Judge Judd’s order until the next scheduled sitting of the court.[http://www.greenbag.org/v13n3/v13n3_from_the_bag_fidell.pdf Eugene R. Fidell, Why Did the Cambodia Bombing Continue?], 13 GREEN BAG 2D 321 (2010).

Congresswoman Holtzman next applied to Justice Thurgood Marshall, the Circuit Justice assigned to oversee the Second Circuit, to vacate the stay. Justice Marshall declined to order the military to stop bombing, on August 1, writing "the proper response to an arguably illegal action is not lawlessness by judges charged with interpreting and enforcing the laws. Down that road lies tyranny and repression."Holtzman v. Schlesinger, 414 U.S. 1304 (1973) (Marshall, J., in chambers). The Court was in recess for the summer but the Congresswoman reapplied, this time to outspoken war critic Justice William O. Douglas.[https://www.jstor.org/stable/27551668 Moses, James L.. 1996. “William O. Douglas and the Vietnam War: Civil Liberties, Presidential Authority, and the "Political Question"”.] Presidential Studies Quarterly 26 (4). [Wiley, Center for the Study of the Presidency and Congress]: 1019–33.

Justice Douglas met with the Congresswoman’s ACLU lawyers at his home in Goose Prairie, Washington and promised them a hearing the next day. On Friday, August 3, 1973, Justice Douglas held a hearing in the Yakima federal courthouse, where he dismissed the Government’s argument that he was causing a “constitutional confrontation” by saying, “we live in a world of confrontations. That’s what the whole system is about.” That night, Justice Douglas ordered the military to stop bombing, reasoning “denial of the application before me would catapult our airmen as well as Cambodian peasants into the death zone.”Holtzman v. Schlesinger, 414 U.S. 1316 (1973) (Douglas, J., in chambers).

The U.S. military ignored the new Supreme Court order. Six hours later, on August 4, Justice Marshall effectively undid Douglas’s ruling by staying the District Court’s injunction. Marshall contacted the other seven justices, and they agreed to this course of action, but the Court was not formally reconvened to reverse Douglas’s order.Schlesinger v. Holtzman, 414 U.S. 1321, 1323 (1973) (Douglas, J., dissenting in chambers).

On August 6, the military accidentally bombed Neak Leung, killing at least 137 villagers. The Second Circuit heard argument of the appeal on Wednesday, August 8, and later that day, Circuit Judge William Hughes Mulligan joined by Circuit Judge William H. Timbers, reversed Judge Judd’s order and dismissed Congresswoman Holtzman's lawsuit. Circuit Judge James L. Oakes dissented, citing Federalist No. 69. On August 15, all direct U.S. military involvement in Indochina ended. The substantive case never reached the Supreme Court.{{citation needed|date=August 2022}}

Congress next passed the War Powers Resolution, which requires the President to receive congressional approval for all new hostilities after sixty days. President Nixon vetoed the resolution, which Congress overwhelmingly overrode on November 7, 1973.

This case is significant because it challenges the legality of being able to operate the military on a "neutral" site. This case emphasizes the proper role of the judiciary to refrain from deciding political questions that are for the President and Congress to decide. Congress has declared war only 11 times and in only five wars: three times in 19th century wars, twice in World War I, and six times in World War II.{{cite web |url=https://www.senate.gov/pagelayout/history/h_multi_sections_and_teasers/WarDeclarationsbyCongress.htm |title=U.S. Senate Official Declarations of War by Congress}} The United States has fought in over 240 wars which were not declared, dating back to President George Washington.{{citation needed|date=June 2019}}

==See also==

• Bas v. Tingy (1800)

{{reflist}}

• {{caselaw source

| case = Justice Marshall's refusal to lift Court of Appeal's stay on District Court's order, {{Ussc|414|1304|1973|el=no}}

| justia =https://supreme.justia.com/us/414/1304/case.html

| loc =http://cdn.loc.gov/service/ll/usrep/usrep414/usrep4141304/usrep4141304.pdf

}}

• {{caselaw source

| case = Justice Douglas' stay on the Court of Appeal's order, {{Ussc|414|1316|1973|el=no}}

| justia =https://supreme.justia.com/us/414/1316/case.html

| loc =http://cdn.loc.gov/service/ll/usrep/usrep414/usrep4141316/usrep4141316.pdf

}}

• {{caselaw source

| case = Justice Marshall's stay on the District Court's order, reinstating a stay, {{Ussc|414|1321|1973|el=no}}

| justia =https://supreme.justia.com/us/414/1321/case.html

| loc =http://cdn.loc.gov/service/ll/usrep/usrep414/usrep4141321/usrep4141321.pdf

}}

{{DEFAULTSORT:Schlesinger V. Holtzman}}

Category:United States Supreme Court cases

Category:United States Supreme Court cases of the Burger Court

Category:1973 in United States case law

Category:American Civil Liberties Union litigation