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decided: November 9, 1970.


[ 400 U.S. Page 886]

Motion of Constitutional Lawyers' Committee on Undeclared War for leave to file supplemental brief as amicus curiae granted. Motion of John M. Wells et al. for leave to file a brief as amici curiae, to participate in oral argument, or alternative motion to be named as parties plaintiff, denied. Motion for leave to file bill of complaint denied. MR. JUSTICE HARLAN and MR. JUSTICE STEWART dissent. They would set the latter motion for argument on questions of standing and justiciability.

MR. JUSTICE DOUGLAS, dissenting.

This motion was filed by the Commonwealth of Massachusetts against the Secretary of Defense, a citizen of another State. It is brought pursuant to a mandate contained in an act of the Massachusetts Legislature. 1970 Laws, c. 174. Massachusetts seeks to obtain an adjudication of the constitutionality of the United States' participation in the Indochina war. It requests that the United States' participation be declared "unconstitutional in that it was not initially authorized or subsequently ratified by Congressional declaration"; it asks that the Secretary of Defense be enjoined "from carrying out, issuing or causing to be issued any further orders which would increase the present level of United States troops in Indochina"; and it asks that, if appropriate congressional action is not forthcoming within 90 days of this Court's decree, the Secretary of Defense be enjoined "from carrying out, issuing, or causing to be issued any further orders directing any inhabitant of the Commonwealth of Massachusetts to Indochina for the purpose of participating in combat or supporting combat troops in the Vietnam war." Today this Court denies leave to file the complaint. I dissent.

[ 400 U.S. Page 887]

     The threshold issues for granting leave to file a complaint in this case are standing and justiciability. I believe that Massachusetts has standing and the controversy is justiciable. At the very least, however, it is apparent that the issues are not so clearly foreclosed as to justify a summary denial of leave to file.


 In Massachusetts v. Mellon, 262 U.S. 447 (hereafter Mellon), the Court held that a State lacked standing to challenge, as parens patriae, a federal grant-in-aid program under which the Federal Government was allegedly usurping powers reserved to the States. It was said in Mellon :

"The 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), it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them as parens patriae, when such representation becomes appropriate; and to the former, and not to the latter, they must look for such protective measures as flow from that status." Id., at 485-486.

The Solicitor General argues that Mellon stands as a bar to this suit.

Yet the ruling of the Court in that case is not dispositive of this one. The opinion states: "We need not go so far as to say that a State may never intervene by

[ 400 U.S. Page 888]

     suit to protect its citizens against any form of enforcement of unconstitutional acts of Congress; but we are clear that the right to do so does not arise here." Id., at 485. Thus the case did not announce a per se rule to bar all suits against the Federal Government as parens patriae, and a closer look at the bases of the opinion is necessary to determine the limits on its applicability.

Mellon relates to an Act of Congress signed by the Executive, a distinction noted in other original actions. In Georgia v. Pennsylvania R. Co., 324 U.S. 439, we stated, "this is not a suit like those in Massachusetts v. Mellon, and Florida v. Mellon, supra, [273 U.S. 12] where a State sought to protect her citizens from the operation of federal statutes." Id., at 446-447.

Massachusetts attacks no federal statute. 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.

There was a companion case to Mellon in which the Court held that a taxpayer lacked standing to challenge the same federal spending statute. Frothingham v. Mellon, 262 U.S. 447 (hereafter Frothingham). Two years ago we reconsidered Frothingham and found at least part of the ruling could not stand the test of time. Concurring in the result, I stated:

" Frothingham, decided in 1923, was in the heyday of substantive due process, when courts were sitting in judgment on the wisdom or reasonableness of legislation. The claim in Frothingham was that a

[ 400 U.S. Page 889]

     federal regulatory Act dealing with maternity deprived the plaintiff of property without due process of law. When the Court used substantive due process to determine the wisdom or reasonableness of legislation, it was indeed transforming itself into the Council of Revision which was rejected by the Constitutional Convention. It was that judicial attitude, not the theory of standing to sue rejected in Frothingham, that involved 'important hazards for the continued effectiveness of the federal judiciary,' to borrow a phrase from my Brother HARLAN. A contrary result in Frothingham in that setting might well have accentuated an ominous trend to judicial supremacy." Flast v. Cohen, 392 U.S. 83, 107.

In Flast we held that a taxpayer had standing to challenge a federal spending program, if he showed that Congress breached a specific limitation on its taxing and spending power. As MR. JUSTICE STEWART stated in his concurring opinion, "the present case is thus readily distinguishable from Frothingham v. Mellon, 262 U.S. 447, where the taxpayer did not rely on an explicit constitutional prohibition but instead questioned the scope of the powers delegated to the national legislature by Article I of the Constitution." 392 U.S., at 114.

The erosion of Frothingham does not, of course, necessarily mean that the authority of Mellon has been affected. But if the current debate over Frothingham "suggests that we should undertake a fresh examination of the limitations upon standing to sue," 392 U.S., at 94, then surely the ...

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