The opinion of the court was delivered by: HOLTZOFF
This is an action by a member of the United States Army against the Secretary of Defense and the Secretary of the Army to enjoin them from ordering him to proceed to Vietnam or to its immediate area to engage in the war in Vietnam. Before the Court at this time is a motion for a preliminary injunction.
Basically the underlying question is whether the Courts have any power to enjoin the Commander in Chief of the Army and Navy of the United States against either carrying on a war or hostilities of other types or, specifically, against transferring or stationing a member of the Armed Forces in some particular area. The Court is of the opinion that this is obviously a political question that is outside of the judicial function.
"The Congress is the legislative department of the Government; the President is the executive department. Neither can be restrained in its action by the judicial department; though the acts of both, when performed, are, in proper cases, subject to its cognizance.
"The impropriety of such interference will be clearly seen upon consideration of its possible consequences.
"Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the Court is without power to enforce its process."
A companion case dating back to the same era is State of Georgia v. Stanton, 73 U.S. 50, 6 Wall. 50, 18 L. Ed. 721, in which a somewhat similar injunction was sought against Secretary of War Stanton by the State of Georgia, with the same result. At page 71 the Court stated:
The distinction between judicial and political power is so generally acknowledged in the jurisprudence both of England and of this country, that we need do no more than refer to some of the authorities on the subject. They are all in one direction."
If we now pass on to our own times, the decision of the Court of Appeals for this Circuit in Pauling v. McNamara, 118 U.S.App.D.C. 50, 331 F.2d 796, is pertinent. That case involved an action brought by a citizen against the Secretary of Defense to restrain and enjoin him, as well as the members of the Atomic Energy Commission, from carrying on certain experiments with nuclear weapons. The Court of Appeals held that such an action was outside of the judicial power. At page 52 of 118 U.S.App.D.C., at page 798 of 331 F.2d Judge Burger of the Court of Appeals wrote as follows:
"* * * decisions in the large matters of basic national policy, as of foreign policy, present no judicially cognizable issues and hence the courts are not empowered to decide them."
In another connection this Court had occasion to discuss the tripartite division of the government of the United States in Trimble v. Johnston, 173 F. Supp. 651. In that case this Court stated:
"It is no part of the judicial function to supervise or control the business of the executive or legislative departments of the Government. Otherwise the judiciary, instead of being one of three coordinate branches, would be supreme over the other two. We would then have a government by the courts, instead of by the Congress and the President. Manifestly the Founding Fathers did not contemplate such a result."
This aspect of the discussion might be concluded by reference to the classic words of Mr. Justice Stone in United States v. Butler, 297 U.S. 1, 78, 56 S. Ct. 312, 80 L. Ed. ...