author: Mr. Justice Douglas,

text:
    No. 73-649.
    Reynolds v. Tennessee.
   Sup. Ct. Tenn. Certiorari denied.

Mr. Justice Brennan and Mr. Justice Marshall would grant the petition.

Mr. Justice Douglas,

dissenting.

This case involves a demonstration occasioned by the appearance of President Nixon at a week-long Billy Graham East Tennessee Crusade held at a football stadium in Knoxville. The petitioner, an ordained Methodist minister and a professor of religious studies, was convicted under a Tennessee statute which in relevant part proscribes “willfully disturb [ing] or disquieting] any assemblage of persons met for religious worship ... by noise, profane discourse, rude or indecent behavior, or any other act.” Disruption of the meeting is not an element of the crime under the statute, and the jury was instructed that “if you find from the evidence that the defendants indulged in any indecent or improper conduct, so near the worshipping assembly, if you find that there was a worshipping assembly present on this occasion, as to attract the notice and attention of persons who were present as a part of the assembly— then, under such a state of facts, if they exist, the defendants would be guilty; and this would be so, whether witnesses say they were disturbed or not.” (Bill of Exceptions 518.) No evidence was introduced at trial that the meeting was disrupted, in the sense that speakers were shouted down, or that petitioner’s group prevented, or sought to prevent, the meeting from proceeding as planned. Nor did the state appellate courts make any such findings in affirming the conviction. Although there were findings that some members of the protest group engaged in obscene chants, it is uncontested that petitioner did not. The undisturbed findings of the State Court of Criminal Appeals were that petitioner “did not chant obscenities and that his intent was for a peaceful demonstration.” Petitioner’s contentions that the statute was unconstitutionally vague and overbroad were rejected by the state courts.

Petitioner’s involvement in the demonstration began the day before when he learned of the President’s planned appearance. In consultation with administration officials of the University of Tennessee he participated in planning the demonstration and urged the group to make their protest silently through hand-held signs. On the night of the protest the stadium was filled to capacity with about 75,000 persons; there were approximately 300 demonstrators. Despite earlier plans, the group did engage in a number of chants, and petitioner joined in some of them. The only violence occurring during the evening was the knocking of a collection plate from an usher’s hands. Many members of the group, including petitioner, joined in retrieving the money and placing it back in the plate.

Petitioner contends that the part of the meeting relevant to this case — the portion during which Dr. Graham introduced President Nixon, and the President spoke— was political rather than religious. He points out that the platform included prominent state Republican figures but no Democrats and contends that the content of the President’s message was primarily political. We are bound, however, by the state court’s determination that for purpose of the state statute the meeting was religious, and that the statute reached petitioner’s conduct. We must then consider petitioner’s contentions that, given this construction, the statute as applied here was either unconstitutionally vague or overbroad.

The statute in relevant part proscribes “willfully disturb [ing] or disquiet [ing] any assemblage of persons met for religious worship ... by noise, profane discourse, rude or indecent behavior, or any other act.” Since it is uncontested that petitioner did not engage in “profane discourse” or “indecent behavior” the only proscriptions applicable here are those against “noise,” “rude behavior” or “any other acts” disturbing the meeting. We have frequently passed upon statutes with similar language. In Coates v. City of Cincinnati, 402 U. S. 611, we considered an ordinance proscribing assemblies of three or more persons conducting themselves in a manner “annoying” to passersby, and concluded that the term “annoy” without further clarification specified “no standard of conduct ... at all.” Id., at 614. In Ashton v. Kentucky, 384 U. S. 195, we found fatally vague a criminal prohibition on “writing calculated to create disturbances of the peace” because such a standard “involves calculations as to the boiling point of a particular person or a particular group.” Id., at 200. Cf. Terminiello v. Chicago, 337 U. S. 1.

The addition of “willful” to the statutory prohibition on disturbing the meeting adds no greater precision, since this element of intent is not proved separately but was inferred from the conduct constituting the violation. Indeed, all the direct evidence of petitioner's intent was to the contrary. Nor is the specification of “noise” or “rude behavior” helpful under the facts of this case. We may assume that a State can constitutionally protect religious congregations from unwanted and disruptive intrusions, and it seems probable that men of common intelligence would understand the statute to proscribe organized political chants in the midst of a Sunday morning service at a neighborhood church. But societal norms of appropriate conduct vary with the nature of the meeting in question. Thus what constitutes “rude behavior” or sufficient noise to disturb the assembled group depends upon calculations of the expectations of other members of the group, much as was the case in Ashton v. Kentucky, supra. Cf. In re Kay, 1 Cal. 3d 930, 464 P. 2d 142 (1970). This imprecision in the statute is highlighted by the facts of this case.

The meeting in question here was widely advertised and all were invited, and the attendance the night of President Nixon’s appearance was apparently considerably above the number present other nights. Thus there can be no question that petitioner had a right to be present. Vendors roamed the audience of 75,000 selling refreshments and there was a general noise level created by the crowd throughout the proceedings. People came and went regularly. And at least during the period relevant here — Dr. Graham’s introduction and the President’s speech — the crowd frequently interrupted the proceedings with applause to indicate their approval of the speaker. It was in this context that the petitioner was required to gauge what conduct would be appropriate, and he made a conscientious effort to do so. Although before the meeting he had argued vigorously for keeping the protest silent, as the content of the speeches became political he joined several chants of the crowd. During Dr. Graham’s introduction he joined the chant “Politics, politics” to show his disapproval of what he considered to be a political intrusion into a meeting that was supposed to be religious. And during the President’s talk he chanted “Peace now” and “Stop the War.” But clearly he considered obscene chants inappropriate, and not only refrained from joining those but spent some effort in attempting to persuade others in the crowd to refrain also. And it must be remembered that during this period others in the crowd were applauding the speakers, and that none of the activities of the petitioner or of his group were violent or disruptive of the meeting in the sense that they prevented it, or sought to prevent it, from proceeding as planned. Such facts would, of course, present a different case. Here it would seem we have no more than that the petitioner’s expression of his views was found disturbing by others.

I find it difficult to conclude that the petitioner was given fair notice under the statute that his conduct was proscribed. Petitioner had to guess not only as to the conduct proscribed by the statute at the meeting in question, but whether the statute applied at all to this portion of the meeting, which could be characterized as political as well as religious. “No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids.” Lanzetta v. New Jersey, 306 U. S. 451, 453. And here, where the statute is capable of interpretation reaching expression protected by the First Amendment, the greatest precision is required. Ashton v. Kentucky, 384 U. S., at 200-201; Grayned v. City of Rockford, 408 U. S. 104, 109. Moreover this statute as applied here exhibits the twin defect of inviting “arbitrary and discriminatory enforcement” and of inviting prosecutors and juries to proceed on their prejudices, because of its failure to specify sufficiently what is proscribed. Grayned, supra, at 108. Those disturbing the meeting with applause were not prosecuted, although the applause of the much larger group presumably disturbed those in the audience who did not support the President. Thus it appears that the statute allows for arbitrary enforcement on the basis of who is disturbed.

Moreover, because disruption of the meeting is not an element of the offense, the statute poses substantial problems of overbreadth. Under the instructions given by the trial judge, the jury was allowed to convict petitioner for “improper conduct” attracting the notice of persons present. This would appear to sanction conviction by the jury for doing no more than expressing views unpopular with the assembled crowd, if the jury found that such expression was improper to the occasion, and thus disturbed others. Such a conviction cannot stand under the First Amendment, any more than the conviction in Terminiello v. Chicago, 337 U. S. 1, where the jury was allowed to convict the defendant for speech which “stirs the public to anger, invites dispute, brings about a condition of unrest, or creates a disturbance.” Id., at 4.

The theory under which the intermediate state appellate court affirmed the conviction poses further problems under the First Amendment. Apparently concluding that petitioner did nothing at the meeting itself which was violative of the statute, the State Court of Criminal Appeals sustained the conviction on the theory that petitioner was an aider and abettor because he “admits to protesting the appearance of the President, and he admits to participating in the organizing of the protest.” On this basis the court held that “the obscenities from the group and the chanting by the group . . . are also [petitioner’s] acts by his participation in the group.” The court concluded that petitioner “cannot escape responsibility for his participation in planning the demonstation by relating he personally himself did not do the unlawful acts, which arose during the event.” The State Supreme Court, in affirming, rejected the aider-and-abettor reasoning of the lower court because under state law there can be no conviction for aiding and abetting a misdemeanor. The conviction was affirmed, however, because “the conduct of [petitioner] cited by the Court of Criminal Appeals as amounting to aiding and abetting, actually makes [petitioner] guilty as a principal offender.” This is followed by citations to state court decisions holding that as to misdemeanors evidence showing aiding and abetting supports conviction as a principal. It thus appears that petitioner’s conviction was affirmed because of his association with other members of the group whose behavior was found violative of the statute.

By grounding petitioner’s conviction on his participation in the planning of the protest the state appellate courts place criminal liability on freedom of expression in its most pristine form. Petitioner’s role was not contested. He attended the meetings and voiced his approval of some form of protest against the President’s appearance, but it appears that at virtually every opportunity he urged the group to keep its protest peaceful and silent. He cannot be held liable because some members of the group chose to express their views in an illegal manner, United States v. Robel, 389 U. S. 258, particularly when, as here, there is no evidence that the group ever agreed to conduct its protest unlawfully or that petitioner ever acquiesced in such a decision. Nor was petitioner charged with conspiracy.

I would grant the petition for certiorari.

       “If any person willfully disturb or disquiet any assemblage of persons met for religious worship, or for educational or literary purposes, or as a lodge or for the purpose of engaging in or promoting the cause of temperance, by noise, profane discourse, rude or indecent behavior, or any other act, at or near the place of meeting, he shall be fined not less than twenty dollars ($20.00) nor more than two hundred dollars ($200), and may also be imprisoned not exceeding six (6) months in the county jail.” Tenn. Code Ann. § 39-1204 (1955).
      The jury imposed a fine of $20 upon petitioner; no prison sentence was imposed.

       In addition to President Nixon, the podium included Congressman Brock, a Republican then running for the Senate seat held by Democrat Albert Gore, and Republican Congressmen Kuykendall and Duncan. Bill of Exceptions 348. No prominent Democrats were included.

       Neither the court below nor the petition here distinguished between facial and as-applied claims of vagueness or overbreadth.

       There was behavior by others in the group which might have fallen within these proscriptions. Among the chants which petitioner did not engage in were “Bullshit, bullshit” during the President’s speech, and “One, two, three, four, we don't want your fucking war.” One isolated member of the group rose during a minister’s prayer and screamed an obscenity.

       In Colten v. Kentucky, 407 U. S. 104, the Court affirmed a conviction under a disorderly conduct statute against claims of vagueness and overbreadth. But Colten, unlike the present case, did not involve expression protected under the First Amendment, and in Colten the petitioner disobeyed a lawful police order to move on.

       See Bill of Exceptions 29, 58, 69, 73, 231, 241, 249, 299, 391, 490.

         Id., at 117.

         Id., at 272.

       There was evidence that others clearly sympathetic to the Graham religious cause joined the protest because they were offended by the political overtones of this part of the meeting. Two other ministers, who had been converted at previous Graham crusades and who were then attending a Graham training school, testified that they joined in the protest. Id., at 299-320.

       There was evidence that at least one member of the group announced at the meetings that he would not remain silent during the President’s speech, but other evidence showed that the group consensus at these meetings was for a silent protest. I do not see how petitioner’s right to attend the Graham Crusade could be curtailed because one member of the protest group declined to follow his advice to remain silent.


source: Caselaw Access Project

license: Public Domain

text:
    No. 73-661.
    Goss et al. v. Board of Education of City of Knoxville, Tennessee, et al.
   C. A. 6th Cir. Certiorari denied.

Mr. Justice White and Mr. Justice Powell would grant certiorari. Mr. Justice Marshall took no part in the consideration or decision of this petition.


text:
    No. 73-698.
    Friends of the Earth et al. v. Stamm, Commissioner, Bureau of Reclamation, et al.
   C. A. 10th Cir. Motion of Sierra Club et al. for leave to file a brief as amici curiae granted. Certiorari denied.

Mr. Justice Douglas, Mr. Justice White, and Mr. Justice Blackmun would grant certiorari.


text:
    No. 73-707.
    School Board of the City of Danville, Virginia, et al. v. Medley et al.
   C. A. 4th Cir. Certiorari denied.

Mr. Justice White and Mr. Justice Powell would grant certiorari.


text:
    No. 72-1541.
    No. 73-336.
    No. 73-474.
    No. 73-5191.
    No. 73-5248.
    No. 73-5278.
    No. 73-5468.
    No. 73-5576.
    No. 73-5614.
    School District of the City of Ferndale, Michigan v. Department of Health, Education, and Welfare, Catoor et al. v. Blair et al., Smith v. Robinson, Warden, et al., Fanning et al. v. United States, Palmer v. United States, Maselli v. United States, Cooper v. Texas Board of Medical Examiners, Casperson v. Pennsylvania, Tarlton v. Texas,
   ante, p. 824;

ante, p. 990;

ante, p. 1066;

ante, p. 1006;

ante, p. 1008;

ante, p. 1070;

ante, p. 1072;

ante, p. 1074; and

ante, p. 1096. Petitions for rehearing denied.


text:
    No. 73-5236.
    No. 73-5358.
    Bargar v. Ohio Civil Rights Commission et al., Fontana v. State Roads Commission of Maryland et al.,
   ante, p. 978; and

ante, p. 1027. Motions for leave to file petitions for rehearing denied.


author: Mr. Justice Rehnquist, Circuit Justice.

text:
    EDELMAN, DIRECTOR, DEPARTMENT OF PUBLIC AID OF ILLINOIS v. JORDAN
    No. A-51 (72-1410).
    Decided July 19, 1973
    See: 472 F. 2d 985.
   Mr. Justice Rehnquist, Circuit Justice.

Application has been made to me by petitioner Edel-man to stay the mandate and judgment of the Court of Appeals for the Seventh Circuit pending review of that judgment by this Court on writ of certiorari. Certiorari was granted on June 11, 1973, 412 U. S. 937, and therefore the critical question present in most stay applications— whether or not four Justices of this Court would vote to grant certiorari — is here already resolved. The judgment which is to be reviewed affirmed a District Court judgment holding certain procedures of the Illinois Department of Public Aid to be inconsistent with regulations promulgated by the Department of Health, Education, and Welfare, and therefore invalid to the extent that the State was receiving federal funds for this particular welfare program. Portions of the District Court’s judgment, entered on March 15, 1972, are in their application prospective only, but paragraph 5 directs that lump-sum payments be made retroactively to applicants who, in the view of the District Court and of the Court of Appeals, should have received benefits but did not because of the Illinois procedures held invalid. Paragraph 6 of the judgment directs that petitioner’s predecessor within 15 days from its date submit to the Court a detailed statement as to the method for effectuating the relief required by paragraph 5.

I seriously doubt whether certiorari would have been granted in this case had it not been for the presence of paragraphs 5 and 6 in the judgment of the District Court. While the entire judgment will be before this Court for review, I am inclined to think that four Justices of this Court would not have voted to grant certiorari to review those portions of the judgment which are in their effect prospective only. I therefore deny the application for the stay of the mandate and judgment of the Court of Appeals as to those portions of the District Court’s judgment other than paragraphs 5 and 6.

Insofar as paragraphs 5 and 6 of the judgment are concerned, the decision of the Court of Appeals for the Seventh Circuit in this case conflicts with a judgment of the Court of Appeals for the Second Circuit in Rothstein v. Wyman, 467 F. 2d 226 (1972). If paragraph 5 of the judgment is not stayed, I would think it extremely unlikely that petitioner, should he succeed in this Court, would be able to recover funds paid out under that paragraph to respondent welfare recipient and members of the class he represents. Respondent, on the other hand, will be able to collect from petitioner all of the back payments found due under paragraph 5 should he prevail. A substantial legal question being present, these equities lead me to conclude that paragraph 5 should be stayed.

Respondent argues that even though paragraph 5 be stayed, paragraph 6 should be left in effect pending review here. The late Judge Napoli, however, in framing paragraph 6 apparently thought that it could be complied with in a period of 15 days; given the length of time already consumed by appellate review in this case, the addition of another two weeks following a conclusion by this Court favorable to respondent is not a matter of controlling significance in deciding the application for the stay. It is also conceivable that paragraph 5 of the judgment, with its detailed specifications as to dates, might be modified by this Court on appeal. Thus the procedures developed under paragraph 6 might prove to be entirely useless, and a new set of procedures necessitated, not only on the hypothesis of outright reversal by this Court, but on the hypothesis of modification and affirmance.

On the basis of the foregoing considerations, an order will be entered staying paragraphs 5 and 6 of the judgment of the District Court in this case until further order of this Court.


author: Me. Justice Marshall, Circuit Justice.

text:
    HOLTZMAN et al. v. SCHLESINGER et al.
    No. A-150.
    Decided August 1, 1973
   Me. Justice Marshall, Circuit Justice.

This case is before me on an application to vacate a stay entered by a three-judge panel of the United States Court of Appeals for the Second Circuit. Applicants, a Congresswoman from New York and several Air Force officers serving in Asia, brought this action to enjoin continued United States air operations over Cambodia. They argue that such military activity.has not been authorized by Congress and that, absent such authorization, it violates Art. I, § 8, cl. 11, of the Constitution. The United States District Court agreed and, on applicants’ motion for summary judgment, permanently enjoined respondents, the Secretary of Defense, the Acting Secretary .of the Air Force, and the Deputy Secretary of Defense, from “participating in any way in military activities in or over Cambodia or releasing any bombs which may fall in Cambodia.” However, the effective date of the injunction was delayed until July 27, 1973, in order to give respondents an opportunity to apply to the Court of Appeals for a stay pending appeal. Respondents promptly applied for such a stay, and the application was granted, without opinion, on July 27. Applicants then filed this motion to vacate the stay. For the reasons stated below, I am unable to say that the Court of Appeals abused its discretion in staying the District Court’s order. In view of the complexity and importance of the issues involved and the absence of authoritative precedent, it would be inappropriate for me, acting as a single Circuit Justice, to vacate the order of the Court of Appeals.

I

Since the facts of this dispute are on the public record and have been exhaustively canvassed in the District Court’s opinion, it would serve no purpose to repeat them in detail here. It suffices to note that publicly acknowledged United States involvement in the Cambodian hostilities began with the President’s announcement on April 30, 1970, that this country was launching attacks “to clean out major enemy sanctuaries on the Cambodian-Vietnam border,” and that American military action in that country has since met with gradually increasing congressional resistance.

Although United States ground troops had been withdrawn from the Cambodian theater by June 30, 1970, in the summer of that year Congress enacted the so-called Fulbright Proviso prohibiting the use of funds for military support of Cambodia. The following winter, Congress re-enacted the same limitation with the added proviso that “nothing contained in this section shall be construed to prohibit support of actions required to insure the safe and orderly withdrawal or disengagement of U. S. Forces from Southeast Asia, or to aid in the release of Americans held as prisoners of war.” 84 Stat. 2037. These provisions have been attached to every subsequent military appropriations act. Moreover, in the Special Foreign Assistance Act of 1971, Congress prohibited the use of funds to support American ground combat troops in Cambodia under any circumstances and expressly provided that “[mjilitary and economic assistance'provided by the United States to Cambodia . . . shall not be construed as a commitment by the United States to Cambodia for its defense.”

Congressional efforts to end American air activities in Cambodia intensified after the withdrawal of American ground troops from Vietnam and the return of American prisoners of war. On May 10, 1973, the House of Representatives refused an administration request to authorize the transfer of $175 million to cover the costs of the Cambodian bombing. See 119 Cong. Rec. 15291, 15317-15318 (1973). Shortly thereafter, both Houses of Congress adopted the so-called Eagleton Amendment prohibiting the use of any funds for Cambodian combat operations. 119 Cong. Rec. 17693, 21173. Although this provision was vetoed by the President, an amendment to the Continuing Appropriations Resolution was ultimately adopted and signed by the President into law which stated:

“Notwithstanding any other provision of law, on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.” H. J. Res. 636, The Joint Resolution Continuing Appropriations for Fiscal Year 1974, Pub. L. 93-52, § 108, 87 Stat. 134.

II

Against this background, applicants forcefully contend that continued United States military activity in Cambodia is illegal. Specifically, they argue that the President is constitutionally disabled in nonemergency situations from exercising the warmaking power in the absence of some affirmative action by Congress. See, e. g., Bas v. Tingy, 4 Dall. 37 (1800); Talbot v. Seeman, 1 Cranch 1 (1801); Mitchell v. Laird, 159 U. S. App. D. C. 344, 348, 488 F. 2d 611, 615 (1973); Orlando v. Laird, 443 F. 2d 1039, 1042 (CA2 1971). Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952). In light of the Fulbright Proviso, applicants take the position that Congress has never given its assent for military activity in Cambodia once American ground troops and prisoners of war were extricated from Vietnam.

With the case in this posture, however, it is not for me to resolve definitively the validity of applicants’ legal claims. Rather, the only issue now ripe for decision is whether the stay ordered by the Court of Appeals should be vacated. There is, to be sure, no doubt that I have the power, as a single Circuit Justice, to dissolve the stay. See Meredith v. Fair, 83 S. Ct. 10, 9 L. Ed. 2d 43 (1962) (Black, J., Circuit Justice); 28 U. S. C. §§ 1651, 2101 (f). But at the same time, the cases make clear that this power should be exercised with the greatest of caution and should be reserved for exceptional circumstances. Cf. Aberdeen & Rockfish R. Co. v. SCRAP, 409 U. S. 1207, 1218 (1972) (Burger, C. J., Circuit Justice).

Unfortunately, once these broad propositions are recognized, the prior cases offer little assistance in resolving this issue, which is largely sui generis. There are, of course, many cases suggesting that a Circuit Justice should “balance the equities” when ruling on stay applications and determine on which side the risk of irreparable injury weighs most heavily. See, e. g., Long Beach Federal Sav. & Loan Assn. v. Federal Home Loan Bank, 76 S. Ct. 32, 100 L. Ed. 1517 (1955) (Douglas, J., Circuit Justice); Board of Education v. Taylor, 82 S. Ct. 10 (1961) (Brennan, J., Circuit Justice); Socialist Labor Party v. Rhodes, 89 S. Ct. 3, 21 L. Ed. 2d 72 (1968) (Stewart, J., Circuit Justice).

But in this case, the problems inherent in attempting to strike an equitable balance between the parties are virtually insurmountable. On the one hand, applicants assert that if the stay is not vacated, the lives of thousands of Americans and Cambodians will be endangered by the Executive’s arguably unconstitutional conduct. Applicants argue, not implausibly, that if the stay is not vacated, American pilots will be killed or captured, Cambodian civilians will be made refugees, and the property of innocent bystanders will be destroyed.

Yet, on the other hand, respondents argue that if the bombing is summarily halted, important foreign policy goals of our Government will be severely hampered. Some may greet with considerable skepticism the claim that vital security interests of our country rest on whether the Air Force is permitted to continue bombing for a few more days, particularly in light of respondents’ failure to produce affidavits from any responsible Government official asserting that such irreparable injury will occur. But it cannot be denied that the assessment of such injury poses the most sensitive of problems, about which Justices of this Court have little or no information or expertise. While we have undoubted authority to judge the legality of executive action, we are on treacherous ground indeed when we attempt judgments as to its wisdom or necessity.

The other standards utilized for determining the propriety of a stay are similarly inconclusive. Opinions by Justices of this Court have frequently stated that lower court decisions should be stayed where it is likely that four Members of this Court would vote to grant a writ of certiorari. See, e. g., Edwards v. New York, 76 S. Ct. 1058, 1 L. Ed. 2d 17 (1956) (Harlan, J., Circuit Justice); Appalachian Power Co. v. American Institute of C. P. A., 80 S. Ct. 16, 4 L. Ed. 2d 30 (1959) (Brennan, J., Circuit Justice); English v. Cunningham, 80 S. Ct. 18, 4 L. Ed. 2d 42 (1959) (Frankfurter, J., Circuit Justice). But to some extent, at least, this standard reflects a desire to maintain the status quo in those cases which the Court is likely to hear on the merits. See, e. g., In re Bart, 82 S. Ct. 675, 7 L. Ed. 2d 767 (1962) (Warren, C. J., Circuit Justice); McGee v. Eyman, 83 S. Ct. 230, 9 L. Ed. 2d 267 (1962) (Douglas, J., Circuit Justice). This case is unusual in that regardless of what action I take, it will likely be impossible to preserve this controversy in its present form for ultimate review by this Court. Cf. O’Brien v. Brown, 409 U. S. 1, 9-10 (1972) (Marshall, J., dissenting). On August 15, the statutory ban on Southeast Asian military activity will take effect, and the contours of this dispute will then be irrevocably altered. Hence, it is difficult to justify a stay for the purpose of preserving the status quo, since no action by this Court can freeze the issues in their present form.

To some extent, as well, the “four-vote” rule reflects the policy in favor of granting a stay only when the losing party presents substantial contentions which are likely to prevail on the merits. See, e. g., O’Brien v. Brown, supra; Rosenberg v. United States, 346 U. S. 273, 313 (1953) (Douglas, J., Circuit Justice); Railway Express Agency v. United States, 82 S. Ct. 466, 7 L. Ed. 2d 432 (1962) (Harlan, J., Circuit Justice); Atlantic Coast Line R. Co. v. Brotherhood of Locomotive Engineers, 396 U. S. 1201 (1969) (Black, J., Circuit Justice). In my judgment, applicants’ contentions in this case are far from frivolous and may well ultimately prevail. Although tactical decisions as to the conduct of an ongoing war may present political questions which the federal courts lack jurisdiction to decide, see, e. g., DaCosta v. Laird, 471 F. 2d 1146 (CA2 1973), and although the courts may lack the power to dictate the form which congressional assent to warmaking must take, see, e. g., Massachusetts v. Laird, 451 F. 2d 26 (CA1 1971); Mitchell v. Laird, 159 U. S. App. D. C. 344, 488 F. 2d 611 (1973), there is a respectable and growing body of lower court opinion holding that Art. I, § 8, cl. 11, imposes some judicially manageable standards as to congressional authorization for warmaking, and that these standards are sufficient to make controversies concerning them justiciable. See Mitchell v. Laird, supra; DaCosta v. Laird, supra; Orlando v. Laird, 443 F. 2d 1039 (CA2 1971); Berk v. Laird, 429 F. 2d 302 (CA2 1970).

Similarly, as a matter of substantive constitutional law, it seems likely that the President may not wage war without some form of congressional approval — except, perhaps, in the case of a pressing emergency or when the President is in the process of extricating himself from a war which Congress once authorized. At the very beginning of our history, Mr. Chief Justice Marshall wrote for a unanimous Court that:

“The whole powers of war being, by the constitution of the United States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry. It is not denied . . . that congress may. authorize general hostilities, in which case the general laws of war apply to our situation; or partial hostilities, in which case the laws of war, so far as they actually apply to our situation, must be noticed.” Talbot v. Seeman, 1 Cranch 1, 28 (1801).

In my judgment, nothing in the 172 years since those words were written alters that fundamental constitutional postulate. Cf. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579 (1952).

A fair reading of Congress’ actions concerning the war in Cambodia may well indicate that the Legislature has authorized only “partial hostilities” — that it has never given its approval to the war except to the extent that it was necessary to extricate American troops and prisoners from Vietnam. Certainly, this seems to be the thrust of the Fulbright Proviso. Moreover, this Court could easily conclude that after the Paris Peace Accords, the Cambodian bombing is no longer justifiable as an extension of the war which Congress did authorize and that the bombing is not required by the type of pressing emergency which necessitates immediate presidential response.

Thus, if the decision were mine alone, I might well conclude on the merits that continued American military operations in Cambodia are unconstitutional. But the Supreme Court is a collegial institution, and its decisions reflect the views of a majority of the sitting Justices. It follows that when I sit in my capacity as a Circuit Justice, I act not for myself alone but as a surrogate for the entire Court, from whence my ultimate authority in these matters derives. A Circuit Justice therefore bears a heavy responsibility to conscientiously reflect the views of his Brethren as best he perceives them, cf. Meredith v. Fair, 83 S. Ct. 10, 11, 9 L. Ed. 2d 43, 44-45 (1962) (Black, J., Circuit Justice), and this responsibility is particularly pressing when, as now, the Court is not in session.

When the problem is viewed from this perspective, it is immeasurably complicated. It must be recognized that we are writing on an almost entirely clean slate in this area. The stark fact is that although there have been numerous lower court decisions concerning the legality of the war in Southeast Asia, this Court has never considered the problem, and it cannot be doubted that the issues posed are immensely important and complex. The problem is further complicated by the July 1, 1973, amendment to the Continuing Appropriations Resolution providing that “on or after August 15, 1973, no funds herein or heretofore appropriated may be obligated or expended to finance directly or indirectly combat activities by United States military forces in or over or from off the shores of North Vietnam, South Vietnam, Laos or Cambodia.” 87 Stat. 134. This, it is urged, is the crux of this case and there is neither precedent nor guidelines toward any definitive conclusion as to whether this is or is not sufficient to order the bombings to be halted prior to August 15.

Lurking in this suit are questions of standing, judicial competence, and substantive constitutional law which go to the roots of the division of power in a constitutional democracy. These are the sort of issues which should not be decided precipitately or without the benefit of proper consultation. It should be noted, moreover, that since the stay below was granted in respondents’ favor, the issue here is not whether there is some possibility that applicants will prevail on the merits, but rather whether there is some possibility that respondents will so prevail. In light of the uncharted and complex nature of the problem, I am unwilling to say that that possibility is nonexistent.

Finally, it is significant that although I cannot know with certainty what conclusion my Brethren would reach, I do have the views of a distinguished panel of the Court of Appeals before me. That panel carefully considered the issues presented and unanimously concluded that a stay was appropriate. Its decision, taken in aid of its own jurisdiction, is entitled to great weight. See, e. g., United States ex rel. Knauff v. McGrath (unreported opinion reprinted at 96 Cong. Rec. App. 3751 (1950)) (Jackson, J., Circuit Justice); Breswick & Co. v. United States, 75 S. Ct. 912, 100 L. Ed. 1510 (1955) (Harlan, J., Circuit Justice). In light of the complexity and importance of the issues posed, I cannot say that the Court of Appeals abused its discretion.

When the final history of the Cambodian war is written, it is unlikely to make pleasant reading. The decision to send American troops “to distant lands to die of foreign fevers and foreign shot and shell,” New York Times Co. v. United States, 403 U. S. 713, 717 (1971) (Black, J., concurring), may ultimately be adjudged to have been not only unwise but also unlawful.

But 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. We have a government of limited powers, and those limits pertain to the Justices of this Court as well as to Congress and the Executive. Our Constitution assures that the law will ultimately prevail, but it also requires that the law be applied in accordance with lawful procedures.

In staying the judgment of the District Court, the Court of Appeals agreed to hear the appeal on its merits on August 13 and advised applicants to apply to that panel for an earlier hearing before that date. It is, therefore, clear to me that this highly controversial constitutional question involving the other two branches of this Government must follow the regular appellate procedures on the accelerated schedule as suggested by the Court of Appeals.

In my judgment, I would exceed my legal authority were I, acting alone, to grant this application. The application to vacate the stay entered below must therefore be

Denied.

       Article I, § 8, cl. 11, provides: “The Congress shall have Power . . . To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water.”

       At the same time, the Court of Appeals ordered an expedited briefing schedule and directed that the appeal be heard on August 13. In the course of oral argument on the stay, Acting Chief Judge Feinberg noted that either side could submit a motion to further advance the date of argument. Counsel for applicants indicated during argument before me that he intends to file such a motion promptly. Moreover, the Solicitor General has made representations that respondents will not oppose the motion and that, if it is granted, the case could be heard by the middle of next week. This case poses issues of the highest importance, and it is, of course, in the public interest that those issues be resolved as expeditiously as possible.

       It appears, however, that covert American activity substantially predated the President’s April 30 announcement. See, e. g., the New York Times, July 15, 1973, p. 1, col. 1 (“Cambodian Raids Reported Hidden before 70 Foray”).

       The Situation in Southeast Asia, 6 Presidential Documents 596, 598 (1970).

       The Fulbright Proviso states:
      “Nothing [herein] shall be construed as authorizing the use of any such funds to support Vietnamese or other free world forces in actions designed to provide military support and assistance to the Government of Cambodia or Laos." 84 Stat. 910.

       See 85 Stat. 423; 85 Stat. 716; 86 Stat. 734; 86 Stat. 1184.

       84 Stat. 1943. See also 22 U. S. C. § 2416 (g) (1970 ed., Supp. II).

       The Eagleton Amendment provided:
      “None of the funds herein appropriated under this Act or heretofore appropriated under any other Act may be expended to support directly or indirectly combat activities in, over or from off the shores of Cambodia or in or over Laos by United States forces.” 119 Cong. 17124 (1973).

       The President contemporaneously signed the Second Supplemental Appropriations Act, 1973, Pub. L. 93-50, which contained a provision, § 307, 87 Stat. 129, stating that
      “[n]one of the funds herein appropriated under this Act may be expended to support directly or indirectly combat activities in or over Cambodia, Laos, North Vietnam and South Vietnam or off the shores of Cambodia, Laos, North Vietnam and South Vietnam by United States forces, and after August 15, 1973, no other funds heretofore appropriated under any other Act may be expended for such purpose.”

       While respondents offered to produce testimony at trial by high Government officials as to the importance of the bombing, no affidavits by such officials alleging irreparable injury in conjunction with the stay application were offered.

       For similar reasons, it would be a formidable task to judge where the public interest lies in this dispute, as courts traditionally do when determining the. appropriateness of a stay. See, e. g., O’Brien v. Brown, 409 U. S. 1, 3 (1972).

       I do not mean to suggest that this dispute will necessarily be moot after August 15. That is a question which is not now before me and upon which I express no views. Moreover, even if the August 15 fund cutoff does moot this controversy, applicants may nonetheless be able to secure a Court of Appeals determination on the merits before August 15. See n. 2, supra.

       The Solicitor General vigorously argues that by directing that Cambodian operations cease on August 15, Congress implicitly authorized their continuation until that date. But while the issue is not wholly free from doubt, it seems relatively plain from the face of the statute that Congress directed its attention solely to military actions after August 15, while expressing no view on the propriety of ongoing operations prior to that date. This conclusion gains plausibility from the remarks of the sponsor of the provision— Senator Fulbright — on the Senate floor:
      “The acceptance of an August 15 cutoff date should in no way be interpreted as recognition by the committee of the President’s authority to engage U. S. forces in hostilities until that date. The view of most members of the committee has been and continues to be that the President does not have such authority in the absence of specific congressional approval.” 119 Cong. Rec. 22305 (1973). See also id., at 22307.
      While it is true that some Senators declined to vote for the proposal because of their view that it did implicitly authorize continuation of the war until August 15, see id., at 22313 (remarks of Sen.. Eagleton); 22309 (remarks of Sen. Bayh); 22317 (remarks of Sen. Muskie), it is well established that speeches by opponents of legislation are entitled to relatively little weight in determining the meaning of the Act in question.


author: Mr. Justice Douglas, Circuit Justice.

text:
    HOLTZMAN et al. v. SCHLESINGER et al.
    No. A-150.
    Decided August 4, 1973
   Mr. Justice Douglas, Circuit Justice.

My Brother Marshall, after a hearing, denied this application which in effect means that the decision of the District Court holding that the bombing of Cambodia is unconstitutional is stayed pending hearing on the merits before the Court of Appeals.

An application for stay denied by one Justice may be made to another. We do not, however, encourage the practice; and when the Term starts, the Justices all being in Washington, D. C., the practice is to refer the second application to the entire Court. That is the desirable practice to discourage “shopping around.”

When the Court is in recess that practice cannot be followed, for the Justices are scattered. Yakima, Washington, where I have scheduled the hearing, is nearly 3,000 miles from Washington, D. C. Group action by all Members is therefore impossible.

I approached this decision, however, with deliberation, realizing that, while the judgment of my Brother Marshall is not binding on me, it is one to which I pay the greatest deference.

My Brother Marshall accurately points out that if the foreign policy goals of this Government are to be weighed the Judiciary is probably the least qualified branch to weigh them. He also states that if stays by judicial officers in cases of this kind are to be vacated the circumstances must be “exceptional.” I agree with those premises, and I respect the views of those who share my Brother Marshall’s predilections.

But this case in its stark realities involves the grim consequences of a capital case. The classic capital case is whether Mr. Lew, Mr. Low, or Mr. Lucas should die. The present case involves whether Mr. X (an unknown person or persons) should die. No one knows who they are. They may be Cambodian farmers whose only “sin” is a desire for socialized medicine to alleviate the suffering of their families and neighbors. Or Mr. X may be the American pilot or navigator who drops a ton of bombs on a Cambodian village. The upshot is that we know that someone is about to die.

Since that is true I see no reason to balance the equities and consider the harm to our foreign policy if one or a thousand more bombs do not drop. The reason is that we live under the Constitution and in Art. I, § 8, cl. 11, it gives to Congress the power to “declare War.” The basic question on the merits is whether Congress, within the meaning of Art. I, § 8, cl. 11, has “declared war” in Cambodia.

It has become popular to think the President has that power to declare war. But there is not a word in the Constitution that grants that power to him. It runs only to Congress.

The Court in the Prize Cases said:

“By the Constitution, Congress alone has the power to declare a national or foreign war. . . . The Constitution confers on the President the whole Executive power. . . . He has no power to initiate or declare a war either against a foreign nation or a domestic State. . . .
“If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force. He does not initiate the war, but is bound to accept the challenge without waiting for any special legislative authority.” 2 Black 635, 668.

The question of justiciability does not seem substantial. In the Prize Cases, decided in 1863, the Court entertained a complaint involving the constitutionality of the Civil War. In my time we held that President Truman in the undeclared Korean war had no power to seize the steel mills in order to increase war production. Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579. The Prize Cases and the Youngstown case involved the seizure of property. But the Government conceded on oral argument that property is no more important than life under our Constitution. Our Fifth Amendment which curtails federal power under the Due Process Clause protects “life, liberty, or property” in that order. Property is important, but if President Truman could not seize it in violation of the Constitution I do not see how any President can take “life” in violation of the Constitution.

As to “standing,” which my Brother Marshall correctly states is an issue, there seems to be no substantial question that a taxpayer at one time had no standing to complain of the lawless actions of his Government. But that rule has been modified. In Flast v. Cohen, 392 U. S. 83, 106, the Court held that a taxpayer could invoke “federal judicial power when he alleges that congressional action under the taxing and spending clause is in derogation of those constitutional provisions which operate to restrict the exercise of the taxing and spending power.” That case involved alleged violations of the Establishment Clause of the First Amendment. The present case involves Art. I, § 8, cl. 11, which gives Congress and not the President the power to “declare War.”

If applicants are correct on the merits they have standing as taxpayers. The case in that posture is in the class of those where standing and the merits are inextricably intertwined. I see no difference, constitutionally speaking, between the standing in Flast and the standing in the present case for our Cambodian caper contested as an unconstitutional exercise of presidential power.

When a stay in a capital case is before us, we do not rule on guilt or innocence. A decision on the merits follows and does not precede the stay. If there is doubt whether due process has been followed in the procedures, the stay is granted because death is irrevocable. By the same token I do not sit today to determine whether the bombing of Cambodia is constitutional. Some say it is merely an extension of the “war” in Vietnam, a “war” which the Second Circuit has held in Berk v. Laird, 429 F. 2d 302, to raise a “political” question, not a justiciable one. I have had serious doubts about the correctness of that decision, but our Court has never passed on the question authoritatively. I have expressed my doubts on the merits in various opinions dissenting from denial of certiorari. But even if the “war” in Vietnam were assumed to be a constitutional one, the Cambodian bombing is quite a different affair. Certainly Congress did not in terms declare war against Cambodia and there is no one so reckless to say that the Cambodian forces are an imminent and perilous threat to our shores. The briefs are replete with references to recent Acts of Congress which, to avoid a presidential veto, were passed to make clear — as I read them — that no bombing of Cambodia was to be financed by appropriated funds after August 15, 1973. Arguably, that is quite different from saying that Congress has declared war in Cambodia for a limited purpose and only up to and not beyond August 15, 1973. If the acts in question are so construed the result would be, as the District Court said, that the number of votes needed to sustain a presidential veto — one-third plus one — would be all that was needed to bring into operation the new and awesome power of a President to declare war. The merits of the present controversy are therefore, to say the least, substantial, since denial of the application before me would catapult our airmen as well as Cambodian peasants into the death zone. I do what I think any judge would do in a capital case — vacate the stay entered by the Court of Appeals.

It is so ordered.

         Sarnoff v. Shultz, 409 U. S. 929; DaCosta v. Laird, 405 U. S. 979; Massachusetts v. Laird, 400 U. S. 886; McArthur v. Clifford, 393 U. S. 1002; Hart v. United States, 391 U. S. 956; Holmes v. United States, 391 U. S. 936; Mora v. McNamara, 389 U. S. 934, 935; Mitchell v. United States, 386 U. S. 972.


author: Mr. Justice Marshall, Circuit Justice. Mr. Justice Douglas,

text:
    SCHLESINGER et al. v. HOLTZMAN et al.
    No. A-175.
    Decided August 4, 1973
   Mr. Justice Marshall, Circuit Justice.

On August 1, 1973, I, as Circuit Justice for the Second Circuit, denied an application to vacate a stay entered by the United States Court of Appeals for the Second Circuit on July 27, 1973, staying the order of the District Court for the Eastern District of New York dated July 25, 1973.

On August 2, Elizabeth Holtzman and others, plaintiffs in the original action, presented an application to Mr. Justice Douglas. A hearing was then set in Yakima, Washington, on Friday, August 3. On August 3, an order was issued by Mr. Justice Douglas vacating the stay entered by the Court of Appeals on July 27,1973, and thereby reinstating the order of the United States District Court for the Eastern District of New York.

On August 4, the Solicitor General presented an application for a stay of the order of the United States District Court for the Eastern District of New York.

Since the action of the Court of Appeals in granting a stay is set aside, the only order extant in this case is the order of the District Court dated July 25, 1973. The instant application calls on me to deal directly with that order of the District Court.

In the ordinary course, a Justice acting as a Circuit Justice would defer acting with respect to a District Court order until the Court of Appeals had acted, but in the present circumstances the Court of Appeals has already acted and the consequence of the order of Mr. Justice Douglas is to set aside the Court of Appeals order.

The consequence of the Court of Appeals’ stay order of August 1, 1973, was to preserve the status quo until it could act on the merits. The Court of Appeals, having originally expedited a hearing on the merits to August 13, 1973, has since further expedited the hearing on the merits to August 8, 1973.

Now therefore, the order of the District Court dated July 25, 1973, is hereby stayed pending further order by this Court.

I have been in communication with the other Members of the Court, and The Chief Justice, Me. Justice Brennan, Mr. Justice Stewart, Mr. Justice White, Mr. Justice Blackmun, Mr. Justice Powell, and Mr. Justice Rehnquist agree with this action.

Mr. Justice Douglas,

dissenting.

The order I entered August 3, 1973, in Holtzman v. Schlesinger not only vacated the stay of the Court of Appeals but also reinstated the judgment of the District Court. I mailed it on August 3, 1973, and reported its contents to the Clerk’s office. My order of August 3, 1973, reads as follows:

“ORDER
“On application of petitioners and after oral argument it is ordered:
“(1) that the stay of the District Court’s order entered by the Court of Appeals on July 27, 1973 is vacated and
“(2) that the order of the District Court of July 25, 1973 enjoining Defendants from participating in any way in military activities in or over Cambodia or releasing any bombs which may fall on Cambodia is hereby restored.
“W. O. Douglas
“August 3, 1973.”

My Brother Marshall in his opinion of August 4, 1973, misstates the facts when he says that “the only order extant in this case is the order of the District Court.” A correct statement would be that the most recent order in this case was my order of August 3, 1973, reinstating the order of the District Court, which would thus leave the Court of Appeals free to act on the merits and give full relief or, alternatively, permit this Court to reverse me. Under my Brother Marshall’s order of August 4, 1973, only this Court can act to give injunctive relief.

The Court has unquestioned power to reverse me; and although I disagree with the Court’s action on the merits, that is not the point of this dissent. If we who impose law and order are ourselves to be bound by law and order, we can act as a Court only when at least six of us are present. That is the requirement of the Act of Congress; and heretofore it has been the practice to summon the Court to Special Term. Seriatim telephone, calls cannot, with all respect, be a lawful substitute. A Conference brings us all together; views are exchanged; briefs are studied; oral argument by counsel for each side is customarily required. But even without participation the Court always acts in Conference and therefore responsibly.

Those of the Brethren out of Washington, D. C., on August 4, 1973, could not possibly have studied my opinion in this case. For, although I wrote it late on August 3, it was not released until 9:30 a. m. on August 4 ; and before 3 p. m., August 4, I was advised by telephone that eight Members of the Court disagreed with me. The issue tendered in the case was not frivolous; the Government on oral argument conceded as much. It involved a new point of law never yet resolved by the Court. I have participated for enough years in Conferences to realize that profound changes are made among the Brethren once their minds are allowed to explore a problem in depth. Yet there were only a few of the Brethren who saw my opinion before they took contrary action.

Whatever may be said on the merits, I am firmly convinced that the telephonic disposition of this grave and crucial constitutional issue is not permissible. I do not speak of social propriety. It is a matter of law and order involving high principles. The principles are that the Court is a deliberative body that acts only on reasoned bases after full consideration, and that it is as much bound by the law of the land as is he who lives in the ghetto or in the big white house on the hill. With all respect, I think the Court has slighted that law. The shortcut it has taken today surely flouts an Act of Congress providing for a necessary quorum. A Gallup Poll type of inquiry of widely scattered Justices is, I think, a subversion of the regime under which I thought we lived.

One Justice who grants bail, issues a stay of a mandate, or issues a certificate of probable cause cannot under the statutory regime designed by Congress vacate, modify, or reverse what another Justice does. The Court, of course, can do so — and only the Court — but when the Court acts it must have six Members present.

Under the law as it is written, the order of Mr. Justice Marshall of August 4, 1973, will in time be reversed by that Higher Court which invariably sits in judgment on the decisions of this Court. The order of August 4,1973, in this case would be valid only if we had the power to agree by telephone that the rules framed by Congress to govern our procedures should be altered. We have no such power. What Members of the Court told Brother Marshall to do on August 4, 1973, does not, with all respect, conform with our ground rules. It may have been done inadvertently, but it is nonetheless not a lawful order. Therefore, I respectfully dissent.

       The Court takes a bite out of the merits, for the order of August 4, 1973, bars the Court of Appeals from reinstating the judgment of the District Court until and unless this Court acts, as the order states that the order of the District Court “is hereby stayed pending further order by this Court.”

       “The Supreme Court of the United States shall consist of a Chief Justice of the United States and eight associate justices, any six of whom shall constitute a quorum.” 28 U. S. C. § 1.

       The statutes authorizing individual Justices of this Court to affirmatively grant applications for such actions do not authorize them to rescind affirmative action taken by another Justice. See, e. g., 28 U. S. C. § 2101 (f) (stays of mandate); 28 U. S. C. § 2241 (a) (writs of habeas corpus); 18 U. S. C. § 3141 and Fed. Rule Crim. Proc. 46 (a) (2) (granting of bail).

       This requirement of collegial action is confirmed by the Rules of this Court and by this Court's prior decisions and practices.
      Rules 50 and 51 govern the in-chambers practices of the Court. Rule 50 (5) provides that, when one Justice denies an application made to him, the party who has made the unsuccessful application may renew it to any other Justice. It was pursuant to this Rule that application for the stay in this case was made to me. But neither Rule 50 nor Rule 51 authorizes a party, once a stay has been granted, to contest that action before another individual Justice.
      The Court has previously deemed it necessary and proper to meet together in Special Term before stays granted by an individual Justice out of Term could be overturned. In Rosenberg v. United States, 346 U. S. 273, the full Court felt constrained to consider its power to vacate a stay issued by an individual Justice, finally resting that power on the Court’s position — as a body — as final interpreter of the law:
      “We turn next to a consideration of our power to decide, in this proceeding, the question preserved by the stay. It is true that the full Court has made no practice of vacating stays issued by single Justices, although it has entertained motions for such relief. But reference to this practice does not prove the nonexistence of the power; it only demonstrates that the circumstances must be unusual before the Court, in its discretion, will exercise its power.
      “The power which we exercised in this case derives from this Court’s role as the final forum to render the ultimate answer to the question which was preserved by the stay.
      “. . . [T]he reasons for refusing, as a matter of practice, to vacate stays issued by single Justices are obvious enough. Ordinarily the stays of individual Justices should stand until the grounds upon which they have issued can be reviewed through regular appellate processes.
      “In this case, however, we deemed it proper and necessary to convene the Court to consider the Attorney General’s urgent application.” Id., at 286-287 (footnote omitted).
      Finally, it is our procedure during a Term of Court to take an application that has already been denied or acted upon by one of the Justices to the entire Court upon an application made by the opposing side, so that the entire Court can act and thus prevent “shopping around.” That course is not possible during recess when the Justices are scattered around the country and throughout the world. Therefore it has been my practice if I grant a stay during recess to make that stay effective only until the Court convenes in October. This course could not be followed in the instant case because after August 15, 1973, the case will be moot.


author: Mr. Justice Douglas.

text:
    EX PARTE HAYES
    No. A-283.
    Decided October 26, 1973
   Mr. Justice Douglas.

This is an application for habeas corpus presented to me.

The applicant is a United States Army private on active duty stationed in Mannheim, Germany. He contends that the Army has failed to fulfill an enlistment commitment made to him and that his continued retention by the Army is therefore in violation of law and army regulations. It is alleged that the applicant's immediate commanding officer, in Mannheim, approved his application for discharge, but that the Chief of Personnel Actions in Washington denied the application. Named as respondents are these two officers and the Secretary of the Army, Howard Calloway.

In hiaking his application here the applicant invokes this Court’s original habeas jurisdiction, 28 U. S. C. § 2241, in the belief that jurisdiction in the district court may be questionable because both the applicant and his commanding officer are located in Germany, outside the territorial jurisdiction of any district court. The Solicitor General in response suggests that jurisdiction may be had in the District Court for the District of Columbia, or alternatively that the application be transferred to that court pursuant to 28 U. S. C. § 2241 (b). I intimate no views on the question or on the merits of applicant’s claim.

We have previously upheld the jurisdiction of a district court over a habeas application when the person confined is moved out of the district after the application is filed. Jones v. Cunningham, 371 U. S. 236 (1963); Ex parte Endo, 323 U. S. 283 (1944). In Ahrens v. Clark, 335 U. S. 188 (1948), we reserved the question now here. Id., at 192 n. 4.

We noted in Endo, supra, at 306, that the more fundamental jurisdictional requirement was not the location in the district of the person confined but the presence of the person with custody over the habeas applicant. In Schlanger v. Seamans, 401 U. S. 487 (1971), we found that the District Court did not have jurisdiction over the habeas application of an Air Force enlisted man because neither his commanding officer nor anyone “in his chain of command” was a resident of the district. Id., at 489. Here, as previously noted, the applicant’s commanding officer is in Germany, outside the territorial limits of any district court. But others in the chain of command, as well as both of the other named respondents, are in the District of Columbia.

The District Court for the District of Columbia in Rothstein v. Secretary of the Air Force, Civil Action No. 1565-73, took jurisdiction in a like case on August 30, 1973. It has been suggested that our prior decisions in Burns v. Wilson, 346 U. S. 137 (1953), and Toth v. Quarles, 350 U. S. 11 (1955), decided “sub silentio and by fiat, that at least a citizen held abroad by federal authorities has access to the writ in the District of Columbia.” On that basis I transfer the application to the District Court for the District of Columbia, recognizing, of course, that the District Court has jurisdiction to determine the question of its jurisdiction.

So ordered.

       “The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it.”

       H. Hart & H. Wechsler, The Federal Courts and The Federal System 359 n. 52 (2d ed. 1973).