## Facts

- Malcolm A. Berk, an enlisted U.S. Army soldier, received orders assigning him to Vietnam.
- Berk sued the Secretary of Defense, the Secretary of the Army, and an Army officer seeking to enjoin enforcement of the deployment orders.
- Berk argued sustained hostilities in Vietnam required constitutionally adequate congressional authorization under Article I, and that Congress had not validly authorized the conflict because it did not issue a formal declaration of war and any purported authorizations were insufficiently explicit.
- The government argued Congress had authorized the use of force in Southeast Asia through the Gulf of Tonkin Resolution and later appropriations and related enactments that funded and supported the military effort.
- On remand following an appellate ruling that the existence of required joint executive-legislative action was justiciable, defendants moved for summary judgment.
- The record consisted of pleadings, affidavits, memoranda, and public documents; the court found no genuine dispute of material fact and treated the case as presenting questions of law.

## Issues

1. Whether the court could adjudicate whether the President’s deployment orders were supported by constitutionally sufficient joint action by Congress and the Executive.
2. Whether Congress, through measures short of a formal declaration of war, constitutionally authorized the President to send U.S. forces to Vietnam and conduct hostilities.
3. Whether a court may review Congress’s choice of *form* or *degree* of authorization (declaration of war versus other legislative measures).

## Decision

- The court granted defendants’ motion for summary judgment and dismissed the complaint.
- The court held Congress had authorized the President to send U.S. forces to Vietnam to engage in hostilities.
- The court held that, once congressional participation and authorization are found, the question whether Congress should have declared “total war” or used another mode of authorization is a political question not subject to judicial second-guessing.

## Legal Principles

- Courts may determine whether there is constitutionally sufficient joint participation by Congress in sustained hostilities, but may not evaluate the wisdom or preferred form of Congress’s authorization once participation is shown.
- Congressional authorization for military hostilities may be provided through means short of a formal declaration of war, including specific resolutions and subsequent statutory enactments reflecting continued support.
- Public enactments such as authorizing resolutions, appropriations, and related legislation can constitute legally sufficient evidence of congressional authorization for ongoing hostilities.
- Summary judgment is appropriate where the material facts are undisputed and the dispute turns solely on the legal effect of public legislative and executive acts.

## Conclusion

The court upheld the legality of Berk’s deployment orders, concluding that Congress had authorized U.S. hostilities in Vietnam through the Gulf of Tonkin Resolution and continued legislative support, and that the judiciary would not require Congress to use any particular form—such as a formal war declaration—to express that authorization.


Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y. 1970)