We held in the first Berk opinion that the constitutional delegation of the war-declaring power to the Congress contains a discoverable and manageable standard imposing on the Congress a duty of mutual participation in the prosecution of war.� Judicial scrutiny of that duty, therefore, is not foreclosed by the political question doctrine.� Baker v. Carr, supra; Powell v. McCormack, supra. As we see it, the test is whether there is any action by the Congress sufficient to authorize or ratify the military activity in question.� The evidentiary materials produced at the hearings in the district court clearly disclose that this test is satisfied.
The Congress and the Executive have taken mutual and joint action in the prosecution and support of military operations in Southeast Asia from the beginning of those operations.� The Tonkin Gulf Resolution, enacted August 10, 1964 (repealed December 31, 1970) was passed at the request of President Johnson and, though occasioned by specific naval incidents in the Gulf of Tonkin, was expressed in broad language which clearly showed the state of mind of the Congress and its intention fully to implement and support the [**7]� military and naval actions taken by and planned to be taken by the President at that time in Southeast Asia, and as might be required in the future "to prevent further aggression." Congress has ratified the executive's initiatives by appropriating billions of dollars to carry out military operations in Southeast Asia n2 and by extending the Military Selective Service Act with full knowledge that persons conscripted under that Act had been, and would continue to be, sent to Vietnam.� Moreover, it specifically conscripted manpower to fill "the substantial induction calls necessitated by the current Vietnam buildup." n3
n2 In response to the demands of the military operations the executive during the 1960s ordered more and more men and material into the war zone; and congressional appropriations have been commensurate with each new level of fighting.� Until 1965, defense appropriations had not earmarked funds for Vietnam.� In May of that year President Johnson asked Congress for an emergency supplemental appropriation "to provide our forces [then numbering 35,000] with the best and most modern supplies and equipment." 111 Cong.Rec. 9283 (May 4, 1965).� Congress appropriated $700 million for use "upon determination by the President that such action is necessary in connection with military activities in Southeast Asia." Pub.L. 89-18, 79 Stat. 109 (1965).� Appropriation acts in each subsequent year explicitly authorized expenditures for men and material sent to Vietnam.� The 1967 appropriations act, for example, declared Congress' "firm intention to provide all necessary support for members of the Armed Forces of the United States fighting in Vietnam" and supported "the efforts being made by the President of the United States *** to prevent an expansion of the war in Vietnam and to bring that conflict to an end through a negotiated settlement * * *." Pub.L. 90-5, 81 Stat. 5 (1967).
The district court opinion in Berk v. Laird, 317 F. Supp. 715 (E.D.N.Y.1970), sets out relevant portions of each of these military appropriation acts and discusses their legislative history. [**8]�
n3 In H.Rep.No.267, 90th Cong., 1st Sess. 38 (1967), in addition to extending the conscription mechanism, Congress continued a suspension of the permanent ceiling on the active duty strength of the Armed Forces, fixed at 2 million men, and replaced it with a secondary ceiling of 5 million.� The House Report recommending extension of the draft concluded that the permanent manpower limitations "are much lower than the currently required strength." The Report referred to President Johnson's selective service message which said, "*** that without the draft we cannot realistically expect to meet our present commitments or the requirements we can now foresee and that volunteers alone could be expected to man a force of little more than 2.0 million. The present number of personnel on active duty is about 3.3 million and it is scheduled to reach almost 3.5 million by June, 1968 if the present conflict is not concluded by then." H.Rep.No.267, 90th Cong., 1st Sess. 38, 41 (1967).
There is, therefore, no lack of clear evidence to support a conclusion that there was an abundance of continuing mutual participation [**9]� in the prosecution of the war.� Both branches collaborated� [*1043]� in the endeavor, and neither could long maintain such a war without the concurrence and cooperation of the other.
Although appellants do not contend that Congress can exercise its wardeclaring power only through a formal declaration, they argue that congressional authorization cannot, as a matter of law, be inferred from military appropriations or other war-implementing legislation that does not contain an express and explicit authorization for the making of war by the President.� Putting aside for a moment the explicit authorization of the Tonkin Gulf Resolution, we disagree with appellants' interpretation of the declaration clause for neither the language nor the purpose underlying that provision prohibits an inference of the fact of authorization from such legislative action as we have in this instance.� The framers' intent to vest the war power in Congress is in no way defeated by permitting an inference of authorization from legislative action furnishing the manpower and materials of war for the protracted military operation in Southeast Asia.
The choice, for example, between an explicit declaration on [**10]� the one hand and a resolution and war-implementing legislation, on the other, as the medium for expression of congressional consent involves "the exercise of a discretion demonstrably committed to the *** legislature," Baker v. Carr, supra 9 at 211, 82 S. Ct. at 707, and therefore, invokes the political question doctrine.
Such a choice involves an important area of decision making in which, through mutual influence and reciprocal action between the President and the Congress, policies governing the relationship between this country and other parts of the world are formulated in the best interests of the United States.� If there can be nothing more than minor military operations conducted under any circumstances, short of an express and explicit declaration of war by Congress, then extended military operations could not be conducted even though both the Congress and the President were agreed that they were necessary and were also agreed that a formal declaration of war would place the nation in a posture in its international relations which would be against its best interests.� For the judicial branch to enunciate and enforce such a standard would be not only extremely unwise [**11]� but also would constitute a deep invasion of the political question domain.� As the Government says, "*** decisions regarding the form and substance of congressional enactments authorizing hostilities are determined by highly complex considerations of diplomacy, foreign policy and military strategy inappropriate to judicial inquiry." It would, indeed, destroy the flexibility of action which the executive and legislative branches must have in dealing with other sovereigns.� What has been said and done by both the President and the Congress in their collaborative conduct of the military operations in Vietnam implies a consensus on the advisability of not making a formal declaration of war because it would be contrary to the interests of the United States to do so.� The making of a policy decision of that kind is clearly within the constitutional domain of those two branches and is just as clearly not within the competency or power of the judiciary.
Beyond determining that there has been some mutual participation between the Congress and the President, which unquestionably exists here, with action by the Congress sufficient to authorize or ratify the military activity at issue,� [**12]� it is clear that the constitutional propriety of the means by which Congress has chosen to ratify and approve the protracted military operations in Southeast Asia is a political question.� The form which congressional authorization should take is one of policy, committed to the discretion of the Congress and outside the power and competency of the judiciary, because there are no intelligible and objectively manageable standards by which to judge such actions