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The Shea Bill Testing the War

By Jerry T. Nepom

THERE WAS no real surprise last week when election-year polities entered into Governor Sargent's signing of the Massachusetts bill challenging the Vietnam war. Because of the potential importance of the new legislation, however, it is a little annoying to realize that its development was heavily influenced by Massachusetts party polities.

The law, often known as the Shea Bill after its sponsor in the Massachusetts legislature, Rep. H. James Shea. Jr. (D-Newton), authorizes Massachusetts residents to refuse combat duty in wars Congress has not declared. Furthermore, it instructs Massachusetts Attorney General Robert Quinn to defend and assist servicemen who refuse to fight on these constitutional grounds.

The bill passed through the Democratic-controlled legislature swiftly. Two Democratic candidates for governor this year, Kenneth P. O'Donnell and Boston Mayor Kevin White, both indicated support for this bill in its early stages. On the Republican side, the liberal Ripon Society supported the bill while Governor Sargent remained officially neutral. Once the legislature had passed the bill, it was submitted to the governor. The bill could have been become law without Sargent's signature, which would have allowed the governor to indicate moderate disapproval with the bill's content. As Sargent explained when signing the bill, although he had grave reservations as to its constitutionality, he generally supported the right of the people to have this matter decided by the nation's courts. He was, therefore, not opposed to the bill and was not about to use his gubernatorial veto power. In his statement to the press while signing the Shea Bill, Sargent downplayed the immediate impact of the bill. He emphasized that soldiers must still obey military orders to go to Vietnam, since court litigation would undoubtedly take a long time.

Strangely enough, although verbally Sargent downplayed the importance of the bill's political stand, he took definite action under his power as governor to push the bill and give it implicit support. Not only did the governor sign the bill instead of letting it become law without signature, but he added an emergency letter to the bill making its legislation effective immediately, instead of waiting the usual 90 days before becoming law. Governor Sargent thus managed to create two impressions in his act of signing the Shea Bill. His expressed doubts and reservations will mollify conservative elements in the state who sec the bill as a dovish challenge to the Nixon Administration. And his act of signing the bill and speeding its effectiveness should make his reelection campaign more attractive to liberal Republicans and to Democrats. Without definite action in support of the bill. Sargent would have lost anti-war voters to O'Donnell or Mayor White. In what the New York Times calls "perhaps the most dovish state in the Union," hesitancy in supporting the Shea Bill would be politically disadvantageous.

Sargent's counterbalance to this dovish image, his speech stressing the problems with the bill, should keep him in favor with the state and national Republican parties. After all, the Republicans want to maintain power in the Northeast amidst the liberal challenge, and presumably will support Sargent's reelection campaign this year. Sargent emerged from the nationally covered signing ceremony looking like a dutiful, and moderate, public servant-undoubtedly the sort of image the governor hopes to maintain in the months before election.

THE constitutionality of the Shea Bill itself will not be decided by the courts until at least the end of this year. There are legal complications with the presentation of the case which may even prevent the Supreme Court from ever debating the issue it poses. Briefly, by Article II of the U. S. Constitution, if the state brings the case as a primary party, the Supreme Court has original jurisdiction in the case. This means that the preliminary step of bringing suit in Federal District Court could be avoided. However, as a practical matter, the Supreme Court could direct that the suit be heard first at the District level. If the case first appears in District Court and is denied, the state could then appeal to the Supreme Court. But in either event, the Supreme Court may merely refuse to consider the suit, ruling that the bill presents a political, not a legal question. If this should happen, the constitutional question raised by Massachusetts would never be decided.

The state is preparing its case now and deciding which way to present it to the courts. There will be a number of individuals named along with the state in bringing suit, and presumably these individuals will have immunity from serving in Vietnam as long as the case is being heard. The day after Sargent signed the bill into law, one soldier, Pyt. John Griffin from Holyoke, filed suit to obtain release from orders sending him to Fort Dix, preparatory to going to Vietnam. Lower-level courts refused to hear his case, but he will probably not appeal to the Supreme Court under the new law. As Griffin's lawyer explained, rather than bring such a suit and possibly jeopardize the Attorney General's upcoming suit in the name of the state of Massachusetts, he will probably try to get his client's name included in the state's brief.

In any event, there will doubtless be numerous legal maneuvers in this case and others during the next few months before the constitutional question raised by the new law is finally brought before the courts.

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