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GOLDSTEIN v. CLIFFORD

August 21, 1968

Norman GOLDSTEIN, Petitioner,
v.
Clark CLIFFORD, as Secretary of Defense, Harold Brown, as Secretary of the Air Force and Col. Norman F. Herget, as Commanding Officer of the 177th Tactical Fighter Group, Respondents. Erwin B. GOLDBERG and Lyman G. Peyser, Plaintiffs, v. Clark CLIFFORD, as Secretary of Defense, Harold Brown, as Secretary of the Air Force, and Col. Norman F. Herget, as Commanding Officer of 177th Tactical Fighter Group of Air National Guard, Defendants



The opinion of the court was delivered by: KALODNER

 Constitutionality of an Act of Congress empowering the President of the United States, until June 28, 1968, to "order to active duty any unit of the Ready Reserve of an armed force for a period of not to exceed twenty-four months", is challenged in these proceedings instituted by three members of the 177th Tactical Fighter Group, Air National Guard of the United States ("Group").

 The Act involved is Section 101(e) of Title 1, Public Law 89-687, October 15, 1966, 80 Stat. 981, 10 U.S.C.A. § 263 note (1967 Cum.Supp.). It reads as follows:

 
"Notwithstanding any other provision of law, until June 30, 1968, the President may, when he deems it necessary, order to active duty any unit of the Ready Reserve of an armed force for a period of not to exceed twenty-four months". *fn1"

 On January 26, 1968, the President issued Executive Order No. 11,392, *fn2" ordering the Group to active duty, pursuant to the authority vested in him by Section 101(e). *fn3"

 The main thrust of the challenge made to the Executive Order is premised on the contention that the President does not have "inherent power" to "mobilize" the Ready Reserve; that Congress alone is endowed by the Constitution in Article 1, Section 8 *fn4" with the power to declare a mobilization and that it cannot delegate that power to the President, and consequently the Executive Order did not effectuate a valid "mobilization".

 On the score of the foregoing contention, the suing members of the Group cite a provision in their enlistment contracts which provides that they can be ordered to active duty only "in the event of a mobilization or emergency", *fn5" and urge that the challenged Executive Order consequently is in violation of the due process clause of the Fifth Amendment to the Constitution.

 Discussion of the contentions presented must be prefaced by this statement of their factual and record background:

 In Civil Action No. 732-68, Staff Sergeant Norman Goldstein, currently serving on active duty in the Group, has petitioned for a writ of habeas corpus, releasing him from active service, pursuant to the provisions of 28 U.S.C.A. § 2241 et seq., premised on the alleged invalidity of the Executive Order.

 In Civil Action No. 775-68, the plaintiffs Erwin B. Goldberg and Lyman G. Peyser, currently serving on active duty in the Group seek injunctive relief under the declaratory judgment provisions of 28 U.S.C.A. § 2201. *fn6" In this action, plaintiffs sought, and were granted, designation of a three-judge district court pursuant to the provisions of 28 U.S.C.A. §§ 2282 and 2284, which require such designation where an injunction is sought restraining the enforcement of an Act of Congress or the order of any department or agency of the United States.

 It appears from Goldstein's petition that he enlisted in the Group on November 26, 1963; has been on active duty since January 26, 1968, and he has been ordered to report to McChord Air Force Base in the State of Washington for deployment to South Korea.

 It appears from their joint Complaint that Goldberg enlisted in the Group on August 23, 1965; he has been on active duty since January 26, 1968; he is presently on call for deployment to South Korea; and that Peyser enlisted in the Group on or about August 27, 1965; he has been on active duty since January 26, 1968, and is presently under orders for deployment to Vietnam.

 What has been said brings us to resolution of the issues presented by these two actions which have been consolidated for hearing.

 Upon consideration of the stated undisputed facts and the briefs of counsel, we are of the opinion that Section 101(e) does not constitute an unconstitutional delegation of Congressional power to the President to order the 177th Tactical Fighter Group on active duty on January 26, 1968, and that the President's Executive Order No. 11,392 to that effect, pursuant to the authorization of ...


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