Tuesday, 27 January 2009

Solomon Amendment found unconstitutional

Ruling on a lawsuit brought by four long-time Federal government employees who were fired (or forced to resign under threat of firing) after it was discovered that they hadn’t registered for the draft , a Federal District Court Judge in Boston ruled yesterday that the law barring nonregistrants from Federal employment constitutes an unconstitutional “bill of attainder”.

The law in question is one of a series of so-called “Solomon Amendments” sponsored by former Congressman Gerald Solomon, who once denounced me in the pages of the New York Times as a “yuppie” — while I was imprisoned for organizing resistance to draft registration. These laws condition Federal student aid, job-training programs, employment, etc. on compliance with draft registration.

But rather than penalizing the handful of people who were actually convicted of knowing and wilful refusal to submit to registration with the Selective Service System, the Solomon Amendments apply by default to anyone who didn’t register. For violations of the Military Selective Service Act, actual knowledge is an element of the crime which the government must prove to a jury beyond reasonable doubt. That’s why, during the brief wave of show trials before prosecutions of draft resisters were abandoned 20 years ago, the government was only able to prosecute those of us whose own public statements could be used to prove our knowledge that we were supposed to register.

The Solomon Amendments place the burden of proof on anyone who didn’t register, and who wants to retain their Federal job, student loan, or other benefits, to establish by a preponderance of evidence that their nonregistration was “not knowing or wilful”.

As a practical matter, I don’t know how anyone would prove their previous lack of knowledge, and I’ve never heard of anyone doing so. (Although many people are genuinely ignorant of the requirements of the registration law, especially the universally-ignored requirement to advise the Selective Service System of every change of address until your 26th birthday.) On its face, this appears to be a violation of the presumption of innocence.

This doesn’t, however, seem to have been the key issue for the Court, which according to initial news reports rested its decision on the finding that the law at issue was a bill of attainder: a finding of guilt and/or assignment of a penalty by Congress, rather than by a court verdict, which is categorically forbidden by the Constitution as a denial of the right to due process.

That’s a persuasive argument, but would seem to run counter to precedent. I haven’t yet been able to read yesterday’s decision, but it is unclear to me how Judge Woodlock was able to distinguish this case, or this one of the Solomon Amendments, with the facts and/or the statute at issue in Selective Service System v. Minnesota Public Interest Research Group , the 1984 decision in which the Supreme Court found specifically that the Solomon Amendment for Federal student aid was not a bill of attainder.

The government must now decide whether to appeal , forcing the Obama Administration to define, at least in part, its position on draft registration — perhaps sooner than it might have liked.

Without the Solomon Amendments — particularly their lifetime effect — there would be little incentive for anyone who doesn’t want to be drafted ever to register.

[Update after reading and studying the full decision: The decision distinguishes the nonregistrant plaintiffs in Elgin et al. v. U.S. Treasury et al. , who were too old to register by the time they were fired or forced to resign from their Federal government jobs, from the nonregistrant plaintiffs in SSS v. MPIRG who were all still young enough to be allowed to register. Late registration or failure to notify the SSS of address changes, although criminal if they can be proven to be knowing and wilful, have never been considered a bar to Federal jobs or other benefits under any of the Solomon Amendments. Holding that one of the tests of a bill of attainder is that it targets individuals on the basis of “irreversible acts”, Judge Woodcock found that, “Plaintiffs are part of a group … whose conduct is irreversible because men who reach the age of 26 are no longer able to register with the Selective Service System. Michael Elgin, Aaron Lawson, Henry Tucker and Christon Colby were all 26 or older when their employing agencies, or prospective employing agencies, learned of their nonregistered status, and therefore they had no opportunity to correct their status.” The holding that this Solomon Amendment is a bill of attainder is limited to men age 26 or older and to Federal government employment. It’s unclear to me how the same or another Court would apply the criteria in the decision to Federal financial aid for education or job training, even in the case of men 26 or older. Interestingly, the recent Solomon Amendment case was brought by attorney Harvey Schwartz , who had brought an earlier lawsuit in 2003 on behalf of two of his draft-age children (one male and one female) and three of their friends, challenging the requirement that only men and not women register. That 2003 lawsuit was dismissed on the basis of the 1981 Supreme Court precedent in Rostker v. Goldberg .]

[Further update, 29 July 2009: The government has filed a petition for rehearing with the District Court. Such a motion is rarely granted, especially where there are no new facts or new decisions in other similar or related cases to be considered, but it serves to buy the government more time to decide whether to allow the District Court ruling to stand, or to appeal and risk having it upheld by the 1st Circuit Court of Appeals, which would give the opinion more weight in other districts.]

[Update: The District Court granted the government’s motion for reconsideration, and reversed itself on reconsideration on 11 March 2010. The plaintiff’s appealed, and their appeal was argued 8 December 2010 before a three-judge panel of the First Circuit Court of Appeals, also in Boston. The Obama administration continues to defend this provision of the Solomon Amendment against the appeal.]

[Update: On appeal, a three-judge panel of the First Circuit Court of Appeals ruled on 8 April 2011 that the case was before the wrong court, because the proper procedure would be for the fired Federal civil servants first to appeal their dismissal administratively to the Merit Systems Protection Board, and then if necessary to sue in the D.C. Circuit, regardless of where they live (not the District Court for Massachusetts, and not the First Circuit). This jurisdictional ruling explicitly left the plaintiffs the option to follow this procedure, which would eventually put them back in a different federal court, the D.C. Circuit.]

[Update: The Supreme Court agreed to review, and then upheld, the decision of the Court of Appeals, without reaching the Constitutionality of the law. In its arguments to the Supreme Court, the government explicitly recognized that the plaintiffs could still pursue administrative remedies and, eventually, if those are denied, a renewed Circuit Court appeal through a different procedural mechanism in the D.C. Circuit. The Supreme Court did not consider or decide whether the law is Constitutional, only the procedures and proper venue for adjudication of the challenge to its Constitutionality.)

Link | Posted by Edward on Tuesday, 27 January 2009, 16:27 ( 4:27 PM)

Thank you for keeping this updated. I lost my job with the bureau for the same reason.

Posted by: Anonymous, 23 September 2011, 17:17 ( 5:17 PM)
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