## Facts

- Two enlisted U.S. Army soldiers, Pfc. Malcolm A. Berk and Specialist Fifth Class Salvatore Orlando, received orders in June 1970 to deploy to Vietnam.
- Each filed suit in the Eastern District of New York against senior defense and Army officials (and, for Berk, his commanding officer) seeking to enjoin enforcement of the deployment orders.
- Plaintiffs alleged their orders were unconstitutional because U.S. participation in Vietnam had not been properly authorized by Congress under Article I’s war powers, including the power to declare war.
- In Berk’s case, an earlier appellate ruling had denied preliminary relief but found the claim justiciable and remanded; on remand, the district court granted summary judgment to defendants, finding joint presidential–congressional action and treating the mode of congressional participation as a political question.
- In Orlando’s case, the district court denied preliminary relief, reasoning that Congress had supported the conflict through funding and conscription measures.
- The cases were consolidated on appeal to the Second Circuit.

## Issues

1. Whether a challenge to the constitutional sufficiency of congressional authorization for U.S. hostilities presents a nonjusticiable political question.
2. If justiciable, whether congressional actions short of a formal declaration of war—including the Gulf of Tonkin Resolution, appropriations, and conscription-related legislation—constituted sufficient authorization to support Vietnam deployment orders.

## Decision

- The Second Circuit affirmed the judgments for defendants.
- The court held the threshold question—whether there was “some” mutual participation by Congress and the President in committing forces—was justiciable.
- The court held that Congress had, in fact, participated sufficiently through the Gulf of Tonkin Resolution, repeated appropriations for the conflict, and manpower measures such as Selective Service and draft-related statutes.
- Having found substantial joint action, the court declined to review the form, degree, or policy wisdom of congressional participation and treated those matters as committed to the political branches.

## Legal Principles

- Article I war-powers provisions supply a judicially manageable standard to determine whether there has been some mutual participation by Congress and the President in initiating or continuing hostilities.
- Once sufficient joint action is shown, the judiciary will not police the precise form or extent of congressional authorization (declaration, authorization, appropriations, or related legislation), as those choices are for the political branches.
- A formal declaration of war is not constitutionally required where Congress has otherwise evidenced authorization through enactments that support, fund, and supply personnel for the military effort.
- Courts will not adjudicate the necessity, wisdom, or strategy of an ongoing military conflict when the constitutional minimum of joint political-branch participation is satisfied.

## Conclusion

The Second Circuit upheld Vietnam deployment orders, ruling that courts may determine whether Congress participated at least to a meaningful threshold in authorizing hostilities, and concluding that Congress’s resolution, appropriations, and conscription measures collectively provided constitutionally sufficient authorization even without a formal declaration of war.


Orlando v. Laird, 443 F.2d 1039 (2d Cir. 1971)