Tuesday, 29 December 2020

"Solomon Amendment" linking student aid to draft registration repealed

Applicants for Federal financial aid for higher education will no longer be required to have registered with the Selective Service System for a possible military draft or answer questions about their Selective Service registration status or compliance.

Among the provisions included in the 2000+ page coronavirus pandemic relief and Consolidated Appropriations Act, 2021, which was signed into law by President Trump on Sunday, is a section (Title VII, Section 701 et seq.) which effectively repeals the 1982 Solomon Amendment that has required men to have registered for the draft in order to be eligible for Federal student grants or loans.

Technically, the new law leaves the older law on the Federal statute books. But the new law overrides the Selective Service registration requirement for higher education funds by providing, with a confusing double negative "shall not be ineligible", that:

Notwithstanding section 12(f) of the Military Selective Service Act (50 U.S.C. 3811(f)), an individual shall not be ineligible for assistance or a benefit provided under this title if the individual is required under section 3 of such Act (50 U.S.C. 3802) to present himself for and submit to registration under such section and fails to do so in accordance with any proclamation issued under such section, or in accordance with any rule or regulation issued under such section.

The new law also requires the Department of Education to remove the questions about Selective Service registration from the FAFSA student aid application form, not later than 1 July 2023 (for the 2023-2024 school year), and allows that change to be made as soon as the Dept. of Education is able to do so.

This section of the "Consolidated Appropriations Act" is one of many entirely unrelated sections, most of which had been pending in Congress as separate bills but had not been acted on, that were tacked onto the "must-pass" pandemic relief and government funding bill in last-minute, closed-door wheeling and dealing by Congressional leaders. The opaque process and the diversity of issues addressed by these varied provisions makes it difficult to know who was responsible for getting any particular one of them included in the final package.

The section of the "Consolidated Appropriations Act" removing the Selective Service registration requirement for Federal financial aid eligibility and removing the questions about Selective Service registration from the FAFSA form was taken from the FAFSA Simplification Act which was introduced by Sen. Lamar Alexander in July 2020. But the same provisions had been included in an earlier bill, the "College Affordability Act", introduced by Rep. Bobby Scott in October 2019. Neither of these bills had been brought to a vote.

What does this mean for draft-age men, and for older men who never registered with the Selective Service System?

It's not clear how soon the questions about Selective Service registration will be removed from the FAFSA form, or how soon men who haven't registered for the draft will be able to apply for and receive Federal education grants or loans. Both will happen not later than 1 July 2023, but it could be sooner at the discretion of the Dept. of Education. Once this happens, men under age 26 will no longer have to choose between money for college and agreeing to kill or be killed at the direction of the Commander-In-Chief. And men who didn't register before they turned 26, who until now have been disqualified for life from Federal student aid, will have their eligibility restored if they want to go back to school.

All of the other Federal and state laws linking Selective Service registration to Federal jobs and -- in some but by no means all states -- drivers licenses, state jobs, and state college financial aid, remain unchanged. These eligibility conditions have been attached to ever more Federal programs over the years. The latest action overturning the Selective Service condition for Federal student aid is, so far as I know, the first is time any of these provisions has been reversed.

H.R. 5492, the bill pending in the House of Representatives to end draft registration and abolish the Selective Service System, would also repeal, override, or preempt all of the Federal and state sanctions for nonregistration. H.R. 5492 is about to expire when Congress adjourns, but is expected to be reintroduced in the new Congress, with a new bill number.

What does this mean for the Selective Service System, draft registration, and the draft?

Contrary to popular belief, the requirement to register for the draft in order to be eligible for Federal student aid has never been the main driver of draft registration, or a sufficient incentive to get most young men to comply with the law.

Here's the breakdown of sources of registrations received by the Selective Service System from the most recent SSS annual report:

Linkages to Federal student aid have generated fewer than half as many Selective Service registrations as linkages to drivers licenses.

Not everybody goes to college, and nonregistration has always been primarily a tactic of the non-college-bound and/or undocumented underclass, not the upper class.

As discussed in more detail in my FAQ on Selective Service registration compliance, noncompliance, and enforcement, compliance with the registration requirement is already so low as to make the registration requirement unenforceable and a draft unfeasible. Removing the linkage to student aid will lower compliance even further.

What does this mean for attempts to expand draft registration to young women as well as young men?

After years of delay, Congress is about to make a decision in 2021 either to finally end draft registration or to try to expand registration to include young women as well as young men.

Unless opposition to draft registration and the likelihood of resistance by young women becomes more visible to Congress, a provision to authorize the President to order women to register with Selective Service is likely to be the subject of Congressional hearings in early 2021, and will be incorporated into the Fiscal Year 2022 annual "National Defense Authorization Act" which will be enacted in late 2021 and take effect in 2022. Depending on the effective date of this provision of the FY 2022 NDAA and the terms of the proclamation by President Biden which will put it into effect by ordering women to register, women born in 2005 and after will probably be required to register for the draft as they turn 18, starting 1 January 2023. (More on the expected 2021 calendar of events in Congress and the courts related to Selective Service.)

If you don't want this to happen, educate, agitate, and organize against the draft and draft registration -- now!

I hope I'm wrong about this prediction, and that Congress will decide to end draft registration rather than to expand it to young women as well as young men. What happens will depend on the actions of young women who would be required to register for a possible draft, young men who are already required to register, and older allies.

President-Elect Biden supports expanding draft registration to women. Biden has named one of the members of the National Commission on Military, National, and Public Service who made this recommendation to his cabinet, and another former member of the NCMNPS to his transition team. I expect that House Speaker Nancy Pelosi and the rest of the Democratic Party leadership will also support this proposal. The outcome in the Senate is less clear, since some pro-war sexist Senators support a draft and draft registration but oppose drafting women. Visible indications that young women will resist, and that older allies will support them in their resistance, may be key to the outcome.

Eliminating the linkage between draft registration and Federal student aid will enable more women to consider resistance. It's not likely to be decisive. But it's hard to understand why the same Congressional leaders who are preparing to push through the most significant expansion of the Selective Service System and step toward military conscription in 40 years have simultaneously worked behind the scenes to overturn a longstanding Federal financial incentive for Selective Service registration. Is there some political chess game I don't understand being played here? Or did the right hand not fully realize what the left hand was doing?

Why are the laws linking other government programs to draft registration called the "Solomon Amendments"?

Rep. Gerald Solomon was a Marine Corps veteran and Republican Congressman from upstate New York. Rep. Solomon's consistent position was that education was a privilege to be earned, not a right, and that Federal money should only go to those students and schools that served the government's interests, including especially the interests of the military.

In the early 1980s, as the Federal government struggled to "restore the credibility of the [Selective Service] system", as one Department of Justice enforcement planning memo put it, in the face of widespread noncompliance, Rep. Solomon got the bright idea of giving the Selective service System and the Department of Justice a helping hand by creating extra-judicial administrative sanctions against nonregistrants. These are much cheaper to impose than criminal penalties, and avoid the pitfalls for the government of criminal trials, which had proved counter-productive for the government by calling attention to the scale of noncompliance and the safety in numbers and safety in silence for most nonregistrants.

The first of these "Solomon Amendments" made Selective Service registration a condition of eligibility for Federal student aid. Rep. Solomon later attached similar amendments to a variety of other Federal legislation, making Selective Service registration a condition for Federal jobs, naturalization as a U.S. citizen, and other programs.

Despite several lawsuits, two of which went to the Supreme Court, the Supreme Court has yet to rule ion the Constitutionality of any of these laws as applied to men 26 older, who are too old to be allowed to register but are disqualified for life from various Federal (and some state) programs if they didn't register before their 26th birthday.

Later in his otherwise largely undistinguished Congressional career, Rep. Solomon sponsored a separate, but conceptually similar, Solomon Amendment that makes Federal aid to colleges and universities contingent on their opening their campuses to military recruiters.

The Selective Service System, still looking for ways to salvage draft registration in the face of low and declining compliance, adapted the Federal "Solomon Amendments" into its template for state legislation to make draft registration a condition for drivers licenses.

I never met Rep. Solomon, but I did get into an exchange with him on the letters-to-the-editor page of the New York Times in response to this front-page article. On the same day, while I was in prison, Rep. Solomon denounced me as a "yuppie" and the Assistant Director of the Selective Service System called me "deluded". I took both their ad hominem attacks as indicative of their fear that readers of the Times might actually listen to what I had said -- and would continue to say -- about the failure of draft registration:

  • On the Failures of Draft Registration
    (letter to the editor by Edward Hasbrouck from Lewisburg [PA] Federal Prison Camp, 21 March 1984: "The issue for Congress and the American people is the failure of draft registration: After almost four years of registration, a million of those eligible haven't registered.... In such circumstances, it is absurd to think that reinstatement of the draft is a realistic possibility, and it is dangerously naive to make foreign policy commitments that will require a draft.")

  • A Consensus in Support of Draft Registration (1)
    (letter to the editor by Wil Ebel, Assistant Director of Selective Service for Public Affairs, 23 March 1984: "Edward Hasbrouck's letter assailing draft registration is woefully in error. Perhaps we should not expect an incarcerated individual to have accurate and up-to-date information, but your readers should not be deluded by Mr. Hasbrouck's misrepresentations. Draft registration is not a failure.")

  • A Consensus in Support of Draft Registration (2)
    (letter to the editor by Rep. Gerald Solomon: "Edward Hasbrouck called the Solomon Amendment, which denies student aid to those who refuse to register for the draft, 'a failure.' The real failure is his inability to separate constitutional rights from taxpayer-financed privileges. We're hearing a lot these days about 'yuppies,' the young urban professionals from the baby boom now on the cusp of political and economic power. I'd hate to think they still cling to the 'me generation' notion that the working taxpayers of this country owe them a college education and upward mobility.... If I had my way, those who do not register would lose not only the 'right' to a student loan but every other taxpayer-funded benefit.")

  • Courageous Foes of Draft Registration
    (letter to the editor by Marjorie Baechler, 7 April 1984: "The remark by Wil Ebel of the Selective Service System that 'perhaps we should not expect an incarcerated individual to have accurate and up-to-date information'... is an attempt to demean Edward Hasbrouck... and all of us who share conscientious objection to the settling of disputes through the violence of war.")

  • We Still Won't Go!
    (letter to the editor by Edward Hasbrouck, 9 December 1990; PDF of print version as leaflet. "Only 20 nonregistrants were ever prosecuted, the last almost five years ago. The attempt to enforce registration has been abandoned, essentially in failure, while millions continue not to register.")
Link | Posted by Edward on Tuesday, 29 December 2020, 14:41 ( 2:41 PM)
Comments

Reprinted in slightly different form at Antiwar.com:

"Good News and Bad News for the Military Draft in 2021"

https://www.antiwar.com/blog/2020/12/29/good-news-and-bad-news-for-the-military-draft-in-2021/

Posted by: Edward Hasbrouck, 30 December 2020, 07:13 ( 7:13 AM)
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