Orloff v. Willoughby/Dissent Black
Mr. Justice BLACK, with whom Mr. Justice FRANKFURTER and Mr. Justice DOUGLAS concur, dissenting.

I agree with Mr. Justice FRANKFURTER'S dissent.

The United States confesses error in this case and then tells us that since the District Court rendered its erroneous judgment Dr. Orloff has been assigned to some duties that fall within the range of medical activities. This is denied by Dr. Orloff. Apparently admitting that Orloff could not be retained in the Army to do something other than the performance of medical services, the Court nevertheless refuses to send the case back to have this factual controversy determined by the District Court. This Court is usually exceedingly reluctant to resolve disputed facts. I cannot understand why it feels called on to affirm this admittedly erroneous judgment by deciding disputed facts on mere unsworn statements of parties here. And there are other reasons why I think the case should be reversed.

I believe the United States was right when it stipulated in the District Court that it could not lawfully utilize Orloff's services as a physician without giving him a commission. It is true the United States has here backed away from this stipulation. It now claims a right to utilize Orloff as a doctor without granting him a commission and this Court agrees. I do not agree.

Since 1847, one hundred and six years ago, Army doctors have served only when they have been commissioned to do so as officers. This long-standing Army practice is in harmony with the law as it exists today. 10 U.S.C. (Supp. IV) § 81 1 and § 91a, 10 U.S.C.A. §§ 81-1, 91a. The congressional hearings and discussions of the special draft act under which Dr. Orloff was inducted indicate that the law probably never would have been passed but for repeated assurances given the Congress that all doctors drafted and held for service under it would be granted commissions. This, because the law was admitted by its sponsors to be 'discriminatory legislation,' singling out the medical profession and its allies, and providing for their induction up to 50 years of age, although other people of this age group could not be called into Army service. This discrimination was justified to Congress only on the ground that doctors made to serve under that law would be given at least a first lieutenant's grade in accordance with the century-old practice of the Army. 96 Cong.Rec. 13861. I think the Government breaks faith with the Congress and with the doctors of America in drafting a doctor without granting him a commission.

It is difficult to think of any sound reason why the Army claims power to use this doctor while denying him the privileges of all other Army doctors. He will be the only doctor denied a commission out of 3,989 doctors drafted under the special law up to last October. And if there was any genuine question about his loyalty to our country, it seems unthinkable that any responsible person in the armed forces would be willing to let him have any part in the treatment of sick and wounded soldiers. If therefore Dr. Orloff is being used as a doctor, the Army must believe that he is dependable despite his failure to answer the question about his past associations. If he is being used, the law entitles him to a commission.

This record indicates to me, however, that Dr. Orloff is being held in the Army not to be used as a medical practitioner, but to be treated as a kind of parish in order to punish him for having claimed a privilege which the Constitution guarantees. Doubtless there are some who would make it a crime for a person to claim this privilege. If an attempt is to be made to punish draftees for asserting constitutional claims, as I can hardly believe it would, it should be done only by an act of Congress. Should such be attempted I would hope that this Court would promptly declare an act to that effect unconstitutional. And if some kind of punishment is to be imposed for asserting constitutional rights, it should not be imposed without a trial according to due process of law.

I think it only fair to state that I see nothing in this record from which the slightest inference should be drawn that Dr. Orloff has taken the course he did in order to avoid service in the Army here or abroad.

This whole episode appears to me to be one of a too-rapidly increasing number to which Americans in a calmer future are not likely to point with much pride.

Mr. Justice FRANKFURTER, whom Mr. Justice BLACK and Mr. Justice DOUGLAS join, dissenting.

Of course the commissioning of officers in the Army lies entirely within the President's discretion and is not subject to judicial control. Although there can be no doubt about that, it does not follow that Congress is precluded from drafting a special group into the Army on condition that they will be commissioned. Receiving a commission is clearly not a matter of right; but granting it may be a condition for retaining a person in the Army. The commissioning of officers in the Army is, no doubt, a matter of discretion within the province of the President as Commander in Chief. But whether we can or cannot hold the President's lawful exercise of his discretion to be a ground for discharge of one he fails to commission depends on the conditions under which Congress authorized him to be drafted.

And so for me the central question in this case is whether one who is drafted under the doctors draft statute, 64 Stat. 826, 50 U.S.C.App. (Supp. IV) § 454(i)(1), 50 U.S.C.A.Appendix, § 454(i)(1), but who does not, in due course, obtain a commission, of whatever rank, must, as a matter of statutory construction, be discharged from the Army because Congress imposed the condition of such a commission on drafting doctors above the general draft age and the condition has not been fulfilled. That view would be strongly supported by the admission of the Government in the trial court that the 'regulations and practice of the United States Army provide that an individual can serve as a doctor of medicine in the United States Army only if he holds a rank of a commissioned officer.' Further, if the statements that were made at the hearings and on the floor of the Congress by those who were in charge of the legislation had been made in a formal committee report, this Court could hardly have held that the receipt of a commission was not a condition on keeping in the Army a doctor drafted under these special provisions. Whatever we may think about the loose use of legislative history, it has never been questioned that reports of committees and utterances of those in charge of legislation constitute authoritative exposition of the meaning of legislation. It is hard to believe that the powerful American Medical Association would have failed to oppose vigorously any provisions under which the Army could draft doctors not otherwise draftable as noncommissioned personnel or that the Congress would have adopted any such provision in the face of professional opposition.

An independent investigation of all the relevant factors bearing on the legislation, beyond what was brought to our attention, see Hearings before House Committee on Armed Services on H.R. 9554, 81st Cong., 2d Sess. 7164, 7166-7167, 7189, 7223; 96 Cong.Rec. 13861, would be necessary to enable one to be confident in rejecting the contention that doctors who were drafted were to obtain a commission. I do not mean to say that mandamus would lie to compel the grant of a commission. That is not the only alternative. The obvious tertium quid is the release of a doctor-draftee who is found unfit for a commission. On the basis of what has been put before us I do not see how we can dispose of the case with complete indifference to this crucial issue. This seems to me the more inadmissible in view of the shifting arguments of the Government, as it has been driven from position to position. Only in its purpose to keep this man in the Army has the Government been undeviating. He could not be drafted under the general draft law; and if a pledge was given to the medical profession, as apparently it was, that a special class of drafted doctors would be duly commissioned, Orloff ought not to be retained in disregard of that pledge. In that case, it is immaterial what quirky notions petitioner may have as to the reasons why a commission has been withheld from him. 

Notes