Sunday, 24 February 2019

Federal court declares current military draft registration requirement unconstitutional

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 1981 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 several of which have been filed) 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.

[Update: As I expected, on 22 April 2019 — one day before the deadline — the government appealed the District Court decision to the 5th Circuit Court of Appeals.]

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. This court case and decision are solely about whether men have to register for the draft. This decision has no effect whatsoever on women.

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. Women would be required to register if, and only if, Congress passes a new law to impose such a requirement.

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 nonregistrants 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 nonregistrants 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 nonregistration 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 nonregistrant 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 eligibility for naturalization as a U.S. citizen, 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 nonregistration 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 nonregistrants.

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. Noncompliance 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 adverturism.

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

Link | Posted by Edward on Sunday, 24 February 2019, 05:16 ( 5:16 AM)

As I read this, it seems to me young men no longer need to register. That means we need to spread such info far & wide.

I will expect to see some lawsuits to delete the entire SSS database and for individuals who have registered to take SSS to court to have their names removed.

Posted by: CJ Hinke, 25 February 2019, 08:19 ( 8:19 AM)

"Draft Registration Will Be Either Ended or Imposed on Women" (by David Swanson, 26 February 2019):

"Which brings us to an even crazier debate, that between ... peace activists who favor not only draft registration but a draft, and those of us who want to see the draft abolished and war along with it. Those favoring a draft as a means to peace may tend to line up with those favoring the feminist right to be forced to kill and die. You'll have to ask them how comfortable they are in that company. Those of us favoring the abolition of draft registration, of course, find ourselves lined up beside misogynistic warmongers...."

Posted by: Edward Hasbrouck, 26 February 2019, 18:21 ( 6:21 PM)

Petition: "End Draft Registration Once and for ALL!" (Courage to Resist)

Posted by: Edward Hasbrouck, 3 March 2019, 08:54 ( 8:54 AM)

Shortly after the decision in NCFM v. SSS described above, the US District Court hearing another case raising some of the same issues denied the government's request to dismiss or delay a decision on the Constitutionality of requiring men but not women to register for the draft.

Kyle-LaBell v. Selective Service System was filed 3 July 2015, U.S. District Court for the District of New Jersey on behalf of Elizabeth Kyle-LaBell, who tried to register when she turned 18 in 2015 but was turned away because she is female. On 29 March 2018 and again on 4 March 2019 the District Court denied requests by the govenment to dismiss or delay a ruling in the case. Ms.Kyle-LaBell has requested a declaratory judgement -- like the one already issued in NCFM v. SSS, above -- that the current male-only draft registration requirement is unconstitutional. She also seeks "(i) to enjoin Defendants from registering only males; or (ii) to require that females register with the SSS; or (iii) to require that registration be voluntary for both sexes." There has been no ruling yet on these requests, but the second of these options for injunctive relief, requiring women to register, is clearly beyond the authority of any court. Only Congress can create new obligations or criminal penalties for noncompliance with them.

PACER Docket (from RECAP):

Opinion of 29 March 2018:

Opinion of 4 March 2019:

Posted by: Edward Hasbrouck, 5 March 2019, 19:02 ( 7:02 PM)

The plaintiffs in National Coalition for Men v. Selective Service System have filed a renewed motion in the District Court for injunctive relief (previously denied), in addition to the declaratory judgement which was already granted:

The government has opposed this motion.

Pursuant to Federal Rule of Civil Procedure 60, "The motion does not affect the judgment's finality or suspend its operation." I believe this means that it does not change the deadline of 23 April 2019 for the government to file a notice of appeal if it wants the the 5th Circuit Court of Appeals to review the declaratory judgement that the current registration requirement is unconstitutional.

Posted by: Edward Hasbrouck, 12 April 2019, 08:57 ( 8:57 AM)

The District Court has denied the plaitiffs' renewed motion for an injunction against continued registration:

This allows the Selective Service to continue to register men while the government's appeal to the 5th Circuit is pending. But the declaratory judgement that the registration requirement is unconstitutional remains in force, effectively precluding any attempt to prosecute nonregistrants.

Posted by: Edward Hasbrouck, 29 April 2019, 15:27 ( 3:27 PM)

Mr. Hasbrouck hello. I am sorry to disturb you but just had a question. If Judge Gray Miller has declared the all male draft unconstitutional then why is it that men still need to register at this time? How can something be declared unconstitutional and yet still continue as is? I know his answer was it would disturb national security to do away with the selective service or force women to register as well, but why do men have to continue registering until the cowardly congress makes a decision? Just because there is a present Commission "studying" this the Congress will not act on the recommendation. The only hope is more lawsuits are filed by the National Coalition of Men to bring this ultimately to the Supreme Court and even then the Congress needs to act. Say a draft took place God forbid right now, would not every male be able to bring a lawsuit and not be obliged to answer the call to arms? I have never felt good about the selective service. Honestly I registered many years ago against my conscience but have never felt the same since. It is also sex discriminatory and I believe if it continues women should be required to register as well. Honestly what do you think in your heart will be the governments decision eventually on this? Sorry if my questions are elemental. Thanks for taking my mail. Hope you are well. With Respect, Michael

Posted by: michael, 22 May 2019, 17:09 ( 5:09 PM)

The case of "National Coalition for Men v. Selective Service System" has been docketed and assigned case number 19-20272 in the U.S. Court of Appeals for the 5th Circuit.

RECAP mirror of 5th Circuit PACER docket:

The government has been ordered to file its opening brief on appeal by 15 July 2019.

Posted by: Edward Hasbrouck, 17 June 2019, 10:21 (10:21 AM)

The government has been granted an (unopposed) extension of time to file its opening brief in the 5th Circuit Court of Appeals until 14 August 2019.

Posted by: Edward Hasbrouck, 2 August 2019, 13:51 ( 1:51 PM)

The government filed its opening brief in the 5th Circuit Cout of Appeals on 14 August 2019:

Much of the government's argument focuses on the fact that the law that the District Court found to be unconstituional is currently under review by the National Commission on Military, National, and Public Service, and might be revised once the Commission makes it's report and recommendations to Congress.

That argument seems more like a delaying tactic than an argument on the Constitutional issue.

The government has requested that the Court of Appeals schedule oral argument rather than decding the appeal on the basis of the written briefs. Whether to grant oral argument is discretionary with thre court, but oral argument is likely to delay the court's decision.

Posted by: Edward Hasbrouck, 15 August 2019, 18:36 ( 6:36 PM)

The Eagle Forum, an anti-feminist pro-military organization which was founded by Phyllis Schlafly and which opposed both the Equal Rights Amendment and the 1980 proposal to include women in draft registration, has filed a friend-of-the-court brief supporting continued registration of men for the draft, opposing requiring women to register, and asking the Court of Appeals to overturn the District Court decision in NCFM v. SSS:

Posted by: Edward Hasbrouck, 9 September 2019, 07:16 ( 7:16 AM)

The plaintiffs have requested and received an unopposed extension of time to file their brief on appeal until 11 October 2019.

Posted by: Edward Hasbrouck, 25 September 2019, 11:08 (11:08 AM)

Brief for appellees (National Coalition for Men) filed with the 5th Circuit Court of Appeals on 3 October 2019:

The government's reply brief is due 24 October 2019.

Posted by: Edward Hasbrouck, 14 October 2019, 15:33 ( 3:33 PM)

On 18 October 2019, a coalition of civil liberties and womens-rights organizations filed a friend-of-the-court brief arguing that the Court of Appeals should uphold the District Court finding that that the current Military Selective Service Act is unconstitutional becuase it discriminates between men and women without an adequate basis:

Signers of the brief are:

1. American Civil Liberties Union Foundation of Texas
2. American Civil Liberties Union
3. 9to5, National Association of Working Women
4. A Better Balance
5. Gender Justice
6. KWH Law Center for Social Justice and Change
7. National Organization for Women Foundation
8. National Women’s Law Center
9. Women’s Law Center of Maryland
10. Women’s Law Project

Posted by: Edward Hasbrouck, 22 October 2019, 19:28 ( 7:28 PM)

The government's response to both the plaintiffs and the amici was filed on 24 October 2019:

The next step in the appeal will likely be a decision by the Court of Appeals as to whether to schedule oral argument or to decide the case on the basis of the written briefs.

Posted by: Edward Hasbrouck, 27 October 2019, 07:29 ( 7:29 AM)

On 6 January 2020, the 5th Circuit Court of Appeals gave notice that it has tentatively decided to hold oral argument in National Coalition for Men v. Selective Service System (rather than deciding the appeal on the basis solely of written briefs) and has tentatively scheduled oral argument for the week of March 2, 2020, probably in New Orleans, with the exact time and date to be set later:

Posted by: Edward Hasbrouck, 9 January 2020, 09:21 ( 9:21 AM)

The 5th Circuit Court of Appeals has scheduled oral argument in the government's appeal of the ruling in NCFM v. SSS for the morning of Tuesday, March 3rd, at Tulane University (which probably means in a "moot court" room at Tulane Law School) in New Orleans.

As NCFM notes in their press release, "Sometimes courts of appeal send their interesting public interest cases to law schools or universities for students to watch," e.g.:

Notably, this is the same day as the "Super Tuesday" primary elections, so any news reporting of the oral argument may get buried under the election news.

Posted by: Edward Hasbrouck, 28 January 2020, 11:46 (11:46 AM)

The 5th Circuit has posted the calendar for oral argument in NCFM v. SSS on Tuesday morning, 3 March 2020, in Room 110 (moot court room), Weinmann Hall, Tulane University School of Law, 6329 Freret St., New Orleans, LA:

NCFM v. SSS is the third of three cases listed on the 9 a.m. docket, although cases on such a docket are occasionally taken in other than the listed order.

Posted by: Edward Hasbrouck, 2 February 2020, 10:00 (10:00 AM)

I attended the oral arguments before a 3-judge panel of the 5th Circuit Court of Appeals in New Orleans on 3 March 2020.

Audio archive (MP3):

A decision could be announced at any time, but typically not for at least a couple of months.

Posted by: Edward Hasbrouck, 4 March 2020, 07:22 ( 7:22 AM)

Appeals Court hears arguments on the Constitutionality of draft registration:

Posted by: Edward Hasbrouck, 5 March 2020, 20:28 ( 8:28 PM)

Court of Appeals overturns ruling that male-only draft registration requirement is unconstitutional (13 August 2020):

Posted by: Edward Hasbrouck, 13 August 2020, 12:32 (12:32 PM)
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