DaCosta v. Laird, Secretary of Defense, Et Al.

Background

Petitioner Ernest Da Costa is a Portuguese citizen permanently living in the United States. He was drafted into the U.S. Army in December 1970 and sued in July 1971 to stop military orders that would send him to Vietnam. He says the United States’ participation in the Vietnamese conflict was never properly authorized by Congress, and that Congress therefore lacks power to draft people for overseas combat in that war.

Reasoning

The Supreme Court denied review of his case — it refused to take the appeal — so the Justices did not decide the constitutional question on the merits. The Court’s order simply denies the petition for review. That means the high court declined to rule on whether the President may wage that war without specific congressional authorization or whether conscription for such a presidential war is subject to judicial decision.

Real world impact

Because the Court refused review, the immediate practical effect is to leave existing military orders and lower-court outcomes in place for now, so individuals ordered to deploy remain subject to those orders. The decision does not settle the constitutional issue and does not stop future suits; the question whether Congress must authorize overseas conflict before drafting people remains open and could be taken up later.

Dissents or concurrances

Justice Douglas dissented from the denial and argued that these are substantial, justiciable constitutional questions about war-making and the draft, noting conflicts among federal appeals courts and urging the Court to decide the matter; Justice Brennan agreed that review should be granted.