393 U.S. 802 | SCOTUS | 1968
Dissenting Opinion
dissenting.
On April 10, 1968, the President delegated to the Secretary of Defense power to activate units of the Ready Reserve.
Questions underlying the merits, which have already produced some judicial disagreement,
I.
First. Applicants argue that the Secretary of the Army improperly called them to active duty for a full period of 24 months, without giving them credit for time already served on active duty. They claim that, in doing so, he exceeded the power granted him. To substantiate their claim, applicants rely on the specific language of delegation, on the treatment of other reservists similarly situated, and on the original intent of Congress.
The language of delegation is in § 101 (e) of Pub. L. 89-687, Title I, October 16, 1966, 80 Stat. 981, 10 U. S. C. § 263 n. (1964 ed., Supp. HI), under which applicants were called. Congress authorized the President to activate “any unit of the Ready Reserve of an armed force for a period of not to exceed twenty-four months.” (Emphasis added.) The President, in turn, delegated his authority under subsection (e) to the Secretary of Defense to activate “any unit in the Ready Reserve ... for a period of not to exceed 24 months.”
“A member ordered to active duty under this section may be required to serve on active duty until his total service on active duty or active duty for training equals twenty-four months.”
To uphold the Secretary’s order would seem to discriminate against these applicants called to active duty as part of units under § 101 (e) in favor of those reservists called to active duty as individuals under §§ 101 (a) and (b), by withholding from the former credit which is concededly accorded the latter.
Congress authorized the President to recall the Ready Reserve for two stated purposes: first, to free the President to mobilize those men without forcing him to declare a national emergency;
The President and the Secretary of Defense apparently read the Act of October 15, 1966, as I do; for each of them activated only units of the reserve for 24 months. And a unit, of course, can serve 24 months even though its original members, having already served some time, are sooner discharged. The Secretary of the Army, on the other hand, has subjected these reservists to an additional obligation of 24 months over and above time already served.
II.
Second. The question just discussed covers, so far as I can tell from the fragmentary pleadings and findings, all of the applicants. The second question reaches
Where the enlistment contract provides for service in the event of “a mobilization or emergency,” I would assume that a wide variety of events might encompass each term. Indeed the very summoning of reserves to active duty might itself be sufficient to constitute the condition subsequent. But where the enlistment contract contains a provision that active duty is only required in “time of war or of national emergency declared by Congress,” I would, if possible, read the Act of October 15, 1966, to preserve that promise solemnly made to the reservists and not to cover those who were specifically required by contract to serve only in “time of war or of national emergency declared by Congress.”
I assume that it is within the power of Congress to change existing law and no type of estoppel interferes with its law-making power. See Stone, J., concurring, in Perry v. United States, 294 U. S. 330, 359. The disappointment realized by those who relied only on general law but did not have that explicit promise from their government in contract form is disappointment of the kind shared by all citizens in a society of shifting law.
“Mr. President, I cannot see how any realistic answer can be raised against this amendment [calling up the reserves]. They say, ‘You can call up the units.’ In the first place, it cannot be done, because the President of the United States has to declare a national emergency, and very naturally he does not want to declare a national emergency at this time after we have gone this far without it. . . . [A] declaration of a national emergency would make us look ridiculous in the eyes of the world — to declare a state of emergency in regard to a third-rate power like North Vietnam.”
Thus, the only other provision which §§ 672-673 include as a condition prescribed by law for activating the reserves under the second type of enlistment contract described above lies in the phrase “or when otherwise authorized by law.”
The phrase in § 673 “when otherwise authorized by law” is not without meaning. It plainly refers to those additional conditions — other than war or national emer
One more issue remains. It has been suggested that 10 U. S. C. § 263 gives Congress the power to call the reserves not just in time of war or national emergency, but “[w]henever . . . needed for the national security.” No one, however, disputes that power. For the issue is not the plenary power of Congress under the Constitution, but how legislation shall be read in order, if possible, to avoid creating a “credibility gap” between the people and their government.
III.
“The war power of the United States, like its other powers ... is subject to applicable constitutional limitations.” Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 156. For that reason, this Court will exercise jurisdiction to review criminal adjudication by the military of civilian (Reid v. Covert, 354 U. S. 1) and military (Burns v. Wilson, 346 U. S. 137) personnel alike and to review administrative action by the military. Thus, in Orloff v. Willoughby, 345 U. S. 83, where a doctor inductee complained that the Secretary of the Army had wrongfully denied him medical detail, we were unanimous in agreeing that we had jurisdiction to review the power of the Secretary; that he had no power to deny petitioner such medical assignments; and that we were prepared to prevent him from doing so. Similarly here, where the Secretary purportedly has no power to recall reservists whom he promised to activate only
I would continue the stays until the merits of this important controversy can be resolved.
Exec. Order No. 11406, 33 Fed. Reg. 5735 (1968).
Memorandum for Secretaries of the Military Departments, April 11, 1968, as cited in Brief for Appellants 5, Morse v. Boswell, 401 F. 2d 544.
Joint Message form DA 859314, April 11, 1968, as cited in Brief for Appellants, ibid.
Applicant in Winters v. United States, 390 U. S. 993, had been called to duty as an individual rather than as part of a unit; and unlike applicants in these cases, apparently did not challenge the authority of the Secretary of the Army to call him for a full 24 months of active duty irrespective of time already served on active duty.
Compare Winters v. United States, 281 F. Supp. 289 (D. C. E. D. N. Y.), aff’d per curiam, 390 F. 2d 879 (C. A. 2d Cir. 1968), with Gion v. McNamara, Civ. No. 67-1563 (D. C. C. D. Calif., January 9, 1968).
Applicants have also raised other questions which I consider too unsubstantial to discuss.
Sufra, n. 1 (emphasis added).
Supra, n. 2.
Supra, n. 3 (emphasis added).
In enacting Pub. L. 89-687, § 101, Congress made a distinction between reservists called as individuals and reservists called as units. That distinction, however, related only to its desire to keep reserve units as much intact as possible; consequently, it only authorized the call of those individual reservists who were not attached to such units, who had not been participating satisfactorily in their present units, or who had had less than 120 days of active duty experience. The distinction between individuals and units would seem to have nothing to do with the question whether reservists called as part of units should be credited for time already served on active duty. In making permanent the President’s temporary authority to activate for 24 months those individuals not participating satisfactorily in their reserve units, Congress reaffirmed its intention to credit them for time already served on active duty. Pub. L. 90-40, June 30, 1967, § 6, 81 Stat. 105.
112 Cong. Rec. 19718 (1966) (remarks of Senator Russell, Chairman of Senate Armed Services Committee, and cosponsor of the amendment, which became Pub. L. 89-687).
112 Cong. Rec. 19724 (1966) (remarks of Senator Lausche).
112 Cong. Rec. 19720 (1966) (remarks of Senator Symington, member of Senate Armed Services Committee).
112 Cong. Rec. 19500 (1966) (remarks of Senator SaLtonstall, ranking minority member, of the Senate Armed Services Committee and cosponsor of the amendment) (emphasis added).
Cf. Bell v. United States, 366 U. S. 393; Perry v. United States, 294 U. S. 330; In re Grimley, 137 U. S. 147, 150.
112 Cong. Reo. 19726 (1966) (Chairman of Senate Armed Services Committee).
Under 10 U. S. C. § 672 (b), a reservist may be called to active duty at any time for a period of 15 days. Pursuant to 10 U. S. C. § 679 a reservist may sign an active duty agreement by which he obligates himself to serve at any time on active duty that he is called; furthermore, that obligation may be extended beyond the expiration date of the agreement in times of war or national emergency. 10 U. S. C. § 672 (d).
Lead Opinion
C. A. 4th Cir. Applications for stays presented to Mr. Justice Douglas and by him referred to the Court, denied.