U.S. Supreme Court
COM. OF MASSACHUSETTS v. LAIRD , 400 U.S. 886 (1970)
400 U.S. 886
COMMONWEALTH OF MASSACHUSETTS, plaintiff,
Melvin R. LAIRD, Secretary of Defense.
No. 42 Orig.-.
Supreme Court of the United States
October Term, 1970.
November 9, 1970
On Motion for Leave to File Bill of Complaint.
The motion of The Constitutional Lawyers' Committee on Undeclared War for leave to file a supplemental brief, as amicus curiae, is granted.
The 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, is denied.
The motion for leave to file a bill of complaint is denied.
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, that the Secretary of Defense be enjoined 'from carrying out, issuing, or causing to be issued any further order 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.
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, the Court held 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:
- '[T]he 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 States, 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. 886 , 888]
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