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Mora v. McNamara

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Bloomberg Law

Brief Fact Summary.

Three people were drafted into the United States Army in late 1965. They brought suit to prevent the Army from requiring them to serve in Vietnam.

Synopsis of Rule of Law.

The Supreme Court of the United States will give great deference to Congress and the President when dealing with war issues.


The petitioners were drafted into the United States Army in late 1965 and were to be shipped to Vietnam six months later. They brought suit to prevent the Army from carrying out those orders and requested a declaratory judgment that the present United States military activity in Vietnam is “illegal”. The district court dismissed the suit and the court of appeals affirmed. The write of certiorari to the Supreme Court was denied.


Should the writ of certiorari be denied?




Justice Stewart and Justice Douglas dissenting.
There are several questions, which are large and deeply troubling. Among them were whether the present United States military activity in Vietnam was a “war” within the meaning of Article I, Section: 8, Clause 11 of the Constitution and what relevance are treaty obligations of the United States? These questions and problems will solve themselves when the Court refuses to hear this case. The Court should squarely face them by granting certiorari and setting this case in for oral argument.
The United States Constitution inserted the phrase “to declare war” as a check on the Executive when the President might have to take emergency action to protect the security of the United States. It should be a decision that Congress should support. The check was to transfer the power to declare war from the person who was to spend to those who were to pay.


In the Prize cases, Justice Grier emphasized the arguments for strong presidential powers in the majority opinion. Justice Nelson writing for the minority interpreted the Constitution more strictly, emphasizing that what is war in actuality may not constitute war in the constitutional sense. This has been a recurrent theme throughout history with the Spanish-American War, the Boxer Rebellion, Two World Wars, Korea and then Vietnam. Whether or not Vietnam was an “unconstitutional” war was never decided. The lower courts generally ruled that the issue was nonjusticiable.

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