THE HONORABLE PARREN J. MITCHELL ET AL., APPELLANTS,

v.

MELVIN R. LAIRD ET AL.

PER CURIAM.

The motion for rehearing en banc initiated by a member of the Court in regular active service is denied, a majority of the Circuit Judges who are in regular active service not having voted in favor of it (Rule 35, Federal Rules of Appellate Procedure).

Separate statement by Circuit Judge MacKINNON with whom Circuit Judges TAMM, ROBB and WILKEY join as to why they would grant rehearing en banc, sua sponte.

MacKINNON, Circuit Judge:

I would vote sua sponte for rehearing en banc of this case to correct the manifest error to which Judge Tamm also dissents in the above opinion. My objection runs to pages 615-616 of the slip opinion which state, inter alia, that appropriations, extensions of the draft and other legislation by Congress supporting the Indochina war do not constitute assent to the war. This statement, which is implicitly self-contradictory, fails to give full recognition to the so-called Gulf of Tonkin Resolution which was passed on August 10, 1964 by both Houses of Congress by a cumulative vote of 506 to 2. The Resolution declared, inter alia:

Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is to be prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom. (Emphasis added.) 1

This Resolution clearly authorized and thereby approved and consented to “the use of armed force” in Southeast Asia. Congress terminated this Resolution effective January 2, 1971,2 but it is impossible as a practical matter to “unde-clare” a war in this manner. By subsequently appropriating money 3 for military forces and materiel with restriction on operations in Laos and Thailand but with no restriction on operations in Vietnam and Cambodia,4 Congress impliedly recognized that the war could not be undone completely by terminating the Gulf of Tonkin Resolution. The appropriations thus indicate Congress’ continuing assent to the prosecution of the war. The basis stated by the opinion for the self-contradictory statement that Congress in passing measures to support the Vietnam war was not validly assenting thereto is that:

This court cannot be unmindful of what every schoolboy knows I5]: that in voting to appropriate money or to draft men a Congressman is not nee-essarily approving the continuation of a war no matter how specifically the appropriation or draft act refers to that war. A Congressman wholly opposed to the war’s commencement and continuation might vote for the military appropriations and for the draft measures because he was unwilling to abandon without support men already fighting. An honorable, decent,, compassionate act of aiding those already in peril is no proof of consent to the actions that placed and continued them in that dangerous posture. We should not construe votes cast in pity and piety as though they were votes freely given to express consent. Hence Chief Judge Bazelon and I believe that none of the legislation drawn to the court’s attention may serve as a valid assent to the Vietnam war. (Emphasis added.)

In my opinion, contrary to the above quotation, the annual multi-billion dollar appropriations over an eightT¡year period reflect a clear Congressional assent to the war. The appropriations were intended both for future activities, as with the regular annual appropriations, and for current activities, as with the supplemental appropriations.6 Congress was not acting blindly. The annual appropriations followed extensive hearings which disclosed precisely that the money was being used for military operations in the Vietnam conflict. , Congress even went-so far as to earmark some appropriations for “military activities in Southeast Asia”7 and “to provide all necessary support for members of the Armed Forces of the United States fighting in Vietnam.” 8 To state that Congress did not thereby assent to the war is to disregard the obvious Congressional intent on this very important matter. Continuing the war would have been impossible without the consent which Congress manifested in the only meaningful way . that Congress acts — by formally, adopted-enactments.

The primary error in the panel opinion is that it confuses the expressed intent of Congress with what is completely court-created speculation as to motive. Intent and motive are not the same. Even if courts possessed authority and jurisdiction to inquire into the motives of Congress, which they do not,9 the panel opinion only asserts a possible speculative motive, i. e., what “A Congressman [not even a majority of either House of Congress] . . . might vote.” (Emphasis added.) This irrational and illusory base has no support in the record and is not proper support for a responsible judicial decision. I would thus excise the heretofore quoted portion of the opinion. . As recently as April 2, 1973, the Supreme Court affirmed a decision which noted the “political nature” of the questions involved.10 In view of the now complete removal of United States ground forces, the quoted language of the opinion is nothing more than a court-created post hoc rationalization, devoid of any support in the record, which is obviously so úntimely, illogical and political that it should not form any part of a judicial opinion. Otherwise, I concur in the result reached by the opinion.

. Public Law 88-408, Aug. 10, 1964, provides :

JOINT RESOLUTION To promote the maintenance of international peace and security in southeast Asia.

Whereas naval units of the Communist regime in Vietnam, in violation of the principles of the Charter of the United Nations and of international law, have deliberately and repeatedly attacked United States naval vessels lawfully present in international waters, and have thereby created a serious threat to international peace; and

Whereas these attacks are part of a deliberate and systematic campaign of aggression that the Communist regime in North Vietnam has been waging against its neighbors and the nations ■ joined with them in the collective defense of their freedom; and

Whereas the United States is assisting the peoples of southeast Asia to protect their freedom and has no territorial, military or political ambitions in that area, but desires only that these peoples should be left in peace to work out their own destinies in their own way: Now, therefore, be it

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That the Congress approves and supports the determination of the President, as Commander in Chief, to take all necessary measures to repel any armed attack against the forces of the United States and to prevent further aggression.

Sec. 2. The United States regards as vital to its national interest and to world peace the maintenance of international peace and .security in . southeast Asia. Consonant with the Constitution of the United States and the Charter of the United Nations and in accordance with its obligations under the Southeast Asia Collective Defense Treaty, the United States is, therefore, prepared, as the President determines, to take all necessary steps, including the use of armed force, to assist any member or protocol state of the Southeast Asia Collective Defense Treaty requesting assistance in defense of its freedom.

Sec. 3. This resolution shall expire when the President shall determine that the peace and security of the area is reasonably assured by international conditions created by action of the United Nations or otherwise, except that it may be terminated earlier by concurrent resolution of the Congress.

Approved August 10, 1964.

78 Stat. 384.

. On January 12, 1971, the 91st Congress enacted a section in the Foreign Military Sales Act providing:

Sec. 12. The joint resolution entitled “Joint resolution to promote the maintenance of .international peace and security in Southeast Asia”, approved August 10, 1964 (78 Stat. 384; Public Law 88-408), is terminated effective upon the day that the second session of the Ninety-first Congress is last adjourned.

Pub.L. 91-672, Jan. 12, 1971, 84 Stat. 2055. The Second Session of the 91st Congress last adjourned sine die on January 2, 1971 (116 Cong.Rec. 44640) v Under the terms of the above section the Gulf of Tonkin Resolution became effective on January 2, 1971, which was ten days before the Act terminating it was approved.

. Pub. L. No. 92-204, Dec. 18, 1971, 85 Stat. 716.

. Id., 85 Stat. at 735.

. This is not generally considered to be reliable authority.

. E.g., Act of March 25, 1966, 80 Stat. 79.

. Pub.L. 89-18, May 7, 1965, 79 Stat. 109; Orlando v. Laird, 443 F. 2d 1039, 1042 n. 2 (2d Cir. 1971).

. ' Pub.L. 90-5, March 16, 1967, 81 Stat. 5; Orlando v. Laird, supra at 1042 n. 2.

. Courts are not empowered to pass upon the motives that cause legislative bodies to act upon legislation. Fletcher v. Peck, 10 U.S.(6 Cranch) 87, 129-131, 3 L.Ed. 162 (1810); D.C.Federation of Civic Associations v. Volpe, 148 U.S. App.D.C. 207, 223, 459 F. 2d 1231, 1247 (1971), cert. denied, 405 U.S. 1030, 92 S.Ct. 1290, 31 L.Ed.2d 489 (1972).

. Atlee v. Richardson, 411 U.S. 911, 93 S.Ct. 1545, 36 L.Ed.2d 304 (1973), affirming Atlee v. Laird, 339 F.Supp. 1347 (E.D.Pa.1972).