Court declares military draft registration unconstitutional

By Edward Hasbrouck

A Federal District Court judge issued a declaratory judgement on Friday, 22 February 2019, that the current requirement for men, but not women, to register with the Selective Service System for a possible military draft is unconstitutional.

How did this happen? What did the Court say? Is this a surprise? What does this decision mean? What will happen next? What should happen next?

I’ve accepted an invitation to testify as an expert witness before the National Commission on Military, National, and Public Service (NCMNPS) on April 25th at a formal hearing on “Should Selective Service registration be required of all Americans”, i.e. should it be extended to young women as well as young men. This hearing is likely to include substantial discussion of this decision and its implications.

For now, here are some initial answers to questions you may have about Friday’s decision:

How did this happen?

The decision Friday was issued in the case of National Coalition for Men v. Selective Service System, which I’ve written about at earlier stages of the proceedings. The case was filed in Los Angeles in 2013, quickly dismissed as premature (not “ripe” for decision) because the government was still studying changes to the roles and assignments of women within the military, appealed to the 9th Circuit Court of Appeals, reinstated on appeal and remanded in 2016, transferred to Houston on the basis of where the first of the named plaintiffs resides, and finally decided last week on summary judgement in the first substantive ruling on the fundamental question raised by the case: Is it Constitutional to require men, but not women, to register for the draft, when women and men are now eligible, if similarly qualified, for all military roles and assignments including those in combat.

The plaintiffs in the case have said all along that they are not demanding that women be required to register or taking any position on whether draft registration should be ended or extended to women. Their only argument is that men and women should be treated equally: Either both men and women should be required to register with the Selective Service System, or neither men nor women should be required to register.

What did the District Court decide?

First, the court rejected the government’s requests for further delay in its decision:

“Defendants argue that the case is not currently fit for judicial decision because Congress recently established the National Commission on Military, National, and Public Service (“the Commission”) to consider whether Congress should modify or abolish the current draft registration requirements…. Defendants request that the court stay proceedings until the Commission has issued its report and Congress has had the opportunity to act on the Commission’s recommendations…. However,… [w]hile the Commission’s recommendations could affect the current proceedings, the Commission is not set to release its final report until 2020. There is no guarantee that the Commission will recommend amending or abolishing the MSSA [Military Selective Service Act] — and, even if it does, Congress is not required to act on those recommendations…. Congress has been debating the MSSA’s registration requirement for decades with no definite end in sight. Even constitutionally mandated deference does not justify a complete and indefinite stay when parties allege that the federal government is presently violating their constitutional rights…. [I]f the court stayed the case until Congress acted on the Commission’s recommendations, the case could be stayed indefinitely. The Commission is under no obligation to recommend certain outcomes to Congress, and Congress is under no obligation to follow or act on those recommendations.”

Since draft registration is ongoing and has ongoing consequences, the facts are not in dispute, and there is no guarantee that the laws or policies at issue will change (or if so, how or when), the District Court found that the plaintiffs are entitled to a decision now on the Constitutional issue affecting them now as individuals, and as an organization which has members, who are currently required to register for a draft.

Second, the court found that, in light of the undisputed facts with respect to current military policies, the current law requiring men but not women to register is unconstitutional:

“In 2013, the Department of Defense officially lifted the ban on women in combat. In 2015, the Department of Defense lifted all gender-based restrictions on military service. Thus, women are now eligible for all military service roles, including combat positions. The dispositive fact in Rostker [the 1980 U.S. Supreme Court decision in Rostker v. Goldberg that it was Constitutional to require men but not women to register for the draft] — that women were ineligible for combat — can no longer justify the MSSA’s gender-based discrimination…. [W]hile historical restrictions on women in the military may have justified past discrimination, men and women are now “similarly situated for purposes of a draft or registration for a draft.” Defendants have not carried the burden of showing that the male-only registration requirement continues to be substantially related to Congress’s objective of raising and supporting armies.”

Is this a surprise?

No, not at all. This decision has been anticipated as an inevitable corollary and consequence of opening all military combat assignments equally to women. The only question has been how long it would take before a case like the one decided Friday made its way through the courts to a decision.

It was precisely because a decision like this one had become a foregone conclusion that, in 2016, Congress debated whether to end draft registration entirely or extend it to young women as well as young men. In late 2016, after the Presidential election, the lame-duck Congress decided to postpone its decision and instead appoint the National Commission on Military, National, and Public Service to study the issue. But it has been, and remains, obvious to everyone following the issue that eventually Congress will either have to resolve the issue or allow it to be decided messily by the courts.

The District Court decision in NCFM v. SSS was not made by a feminist or activist judge. Senior Judge Gray H. Miller is no liberal. A veteran of nine years as a Houston police officer before and while he was in college and law school, he was appointed to the Federal judiciary by President George W. Bush in 2006.

What does this decision mean?

First, the District Court’s decision, while final and binding for now, is subject to appeal and possible, perhaps likely, stay pending appeal. An appeal would go first to the 5th Circuit Court of Appeals in New Orleans, and then possibly to the Supreme Court, if the Supreme Court chooses to hear a further appeal.

The government will almost certainly lose these appeals, but will probably appeal just as a way to postpone a final outcome and get the District Court decision stayed while the appeals are pending. A Circuit Court appeal could take only a few months if expedited, but on a normal schedule would likely delay the final resolution of the case until after the NCMNPS releases its final report and recommendations in March 2020. The government will undoubtedly try to drag out any appeals as long as possible. A Supreme Court appeal, or even an unsuccessful petition for Supreme Court review, could add another year to the legal proceedings, punting the case and the need for Congress to respond to the final judicial outcome into a new Administration after the 2020 elections.

Second, this decision does not, I repeat not, require women to register with the Selective Service System. The plaintiffs in NCFM v. SSS did not request such an order in their complaint, the court did not issue such an order, and no court would have the authority to issue such an order.

Federal courts can void unconstitutional laws, but they cannot create new crimes or criminalize that which Congress has not criminalized. No law requires women to register, and no court can make such a law.

The court did the only thing it could do when presented with an unconstitutional law: it struck down that law, which imposes criminal sanctions on men who refuse to register. The court’s decision has no effect whatsoever on women, who are not subject to this provision of the law (although they have always been, and remain, subject to prohibitions on aid, abetment, advocacy, or conspiracy for men not to register).

This is not a decision that women must register for the draft. This is a decision that the current requirement for men to register for the draft is unconstitutional.

Third, this decision means that, after almost 39 years, the threat of prosecution for draft registration resisters has been, at least temporarily, lifted.

That threat was minimal. Widespread quiet noncompliance combined with a small but vocal draft registration resistance movement rendered draft registration unenforceable. Prosecutions of non-registrants were abandoned by the Department of Justice in 1988 as ineffective and a waste of resources.

But despite that policy, the Selective Service System has continued to intimidate young men with threats of criminal sanctions. As of now (unless and until the District Court’s decision is either overturned on appeal or stayed pending appeal), those threats are not merely practically empty (as they have been for more than three decades) but legally empty.

Today is a day to celebrate the success of draft registration resistance and the end, at least for now, of compelled participation in preparation for military conscription.

There are limits. The Military Selective Service Act is still on the books. The District Court issued only a “declaratory judgement” that the law is unconstitutional and not an injunction against attempting to enforce it. A District Court decision is not a precedent binding on any other court. But if the government tried to resume prosecutions of non-registrants for the draft, this decision could be cited as persuasive authority that the law requiring men and not women to register is unconstitutional and that any indictment for non-registration should be dismissed. And even if another court found Judge Miller’s opinion unpersuasive and upheld the continued constitutionality of requiring only men to register, a non-registrant could argue that, having heard and believed that the law was unconstitutional, he did not have the intent to violate a valid law which is an element of the crime of willful refusal to submit to registration with the Selective Service System.

Fourth, this decision leaves on the books — although vulnerable in many instances to separate legal challenges — all of the “Solomon Amendment” laws requiring draft registration or statements of compliance with draft registration as a condition of Federal jobs, Federally-guaranteed student loans and job training, and other Federal programs, as well as state laws mandating draft registration as a condition of drivers licenses or other state programs. If draft registration as currently required is unconstitutional, can a man who has not registered legally state that he has complied with all (Constitutional) registration requirements? And with respect to past non-registration by men now 26 or older and unable to register, when is the registration requirement considered to have become unconstitutional? Unless Congress and state legislatures repeal these “Solomon Amendment” laws, there will be years of continued litigation and continued imposition of administrative sanctions against non-registrants.

What will happen next?

As noted above, the government is likely to appeal, and there is a good chance that any lower court decisions will be stayed until appeals are complete. Especially if those decisions are stayed, Congress is likely to avoid discussion of this political hot potato until it receives the report and recommendations of the NCMNPS in March 2020.

In the meantime, the NCMNPS has scheduled two days of hearings on the future of the Selective Service System on April 24th and 25th at Gallaudet University in Washington, DC. (It’s a curious choice of venue, since most Gallaudet students would be deemed medically ineligible for the draft under current Selective Service System contingency plans.) I’ve accepted an invitation to testify on the morning panel of experts on April 25th on “Should Selective Service registration be required for all Americans”, which of course doesn’t really mean all Americans, only young Americans (unconscious ageism), but does mean whether registration should be extended to young women as well as young men.

Uninvited members of the public will only get two minutes each at the open mike, and only if they sign up to speak on site before the start of the hearing. But it’s important for the members of the Commission, as well as those watching on C-SPAN, to hear from feminists and allies (of all ages) and not just anti-feminists opposed to conscription, war, and expanding draft registration to women. I hope to see some of you there.

Congress could do nothing, even after it receives the report and recommendations of the NCMNPS. As discussed above, that would leave a mess of uncertainty, prolonged and fragmented follow-up state and Federal litigation, and persistent unfair administrative punishment of men who (often unwittingly) violated what has now been found to be an unconstitutional law.

As with past debates on whether women should be required to register for the draft, the substantive debate is likely to put liberal (but not antiwar) advocates for “equality for women” on the side of extending draft registration for women as well as men, opposed by both (A) antiwar feminists, libertarians, and others who oppose all conscription and/or all wars, and want to end draft registration, as well as (B) anti-feminist cultural conservatives (including fundamentalists of several religions), some of them pro-war and pro-draft, who oppose including women in military combat forces or any draft. The latter are those who are currently more mobilized and likely to be visible on this issue, so it’s critical for antiwar feminists and their allies to raise our voices. The NCMNPS, Congress, and the public especially need to hear from women under age 26 who could be subject to registration and the draft if the current Selective Service System is expanded from men to both women and men without other changes.

The claim is already being made that requiring women to register for the draft is a feminist initiative. But this ignores the long historical and theoretical association of feminism with opposition to war, including the leading role of women in movements against military conscription.

What should happen next?

The NCMNPS and Congress should recognize that draft registration has failed, and that attempting to expand it to women will be even more of a fiasco than the attempt to get men to register has been.

Noncompliance by young men (with support by older men and by women of all ages) has rendered registration unenforceable. Compliance by young women, and support for their resistance from older allies, is likely to be even greater. There’s a particular hypocrisy on the part of those who argue that young women are strong enough and combative enough to carry out all military assignments and wage war, but who assume that these same young women are so weak and submissive that they won’t resist being ordered to do so involuntarily.

Congress should repeal the Military Selective Service Act in its entirety, abolish the Selective Service System, and expunge all registration records. Failing that, Congress should at minimum repeal the current registration requirement. In either case, Congress should also repeal all provisions requiring compliance with draft registration as a condition for other programs, and restore eligibility for these programs to those who never registered with the Selective Service System.

Perhaps most importantly, Congress, the President, and the Pentagon should revise their thinking and planning to recognize that a draft is not an option, even as “Plan F for Fallback” after Plan A (active-duty troops), Plan B (reserves), Plan C (National Guard), Plan D (allied forces and proxy warriors), and Plan E (mercenaries/contractors). The real victory of draft resistance will not be in preventing a draft, important though that is as a step in the right direction, but in reining in military adventurism.

Until that happens, young people should continue to resist or evade draft registration, and all of us should support them in their noncompliance.

Edward Hasbrouck is maintains the website resisters.info