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Put the Selective Service System into "Standby"!

The Selective Service Standby Amendment described below was proposed for consideration during the markup of the National Defesne Authorization Act (NDAA) for fiscal year 2022 by the House Armed Service Committee (HASC) on 1 September 2021.

However, just before the markup session, this amendment was ruled out of order for consideration in committee, on arcane procedural grounds (“PAYGO”). A rival amendment to expand Selective Service in its present form to women was ruled in order and approved by the committee.

While it wasn’t borught to a vote or enacted in 2021, the Selective Service Standby Amendment continues to provide a model for a potential compromise.

The debate on provisions related to Selective Service to be incorporated into the FY 2022 NDAA is the most significant Congressional debate on compulsory military service since 1980. Committee votes will not be the final stage in this debate: Amendments to the respective versions of the NDAA recommended by the House and Senate Armed Services Committees could be proposed on the floor in both the House and the Senate, either to repeal the Military Selective Service Act and abolish the Selective Service System, or to to put the Selective Service System into standby. Differences between the House and Senate versions will be referred to a special-purpose House-Senate conference committee, which will meet in closed session and could craft its own back-room compromises. As of now, however, the most likely outcome appears to be that Congress will vote to expand draft registration, in essentially its present form, to include young women as well as young men.

The Selective Service Standby Amendment to the NDAA would suspend draft registration and eliminate both Federal and state administrative sanctions for past or future nonregistration. It doesn’t go as far as the Selective Service Repeal Act, but it has a much better chance of being enacted by Congress, and it’s much better than the (more likely) alternatives of continuing or expanding the current draft registration program.

From 1975 to 1980, the Selective Service System existed and continued to carry out contingency planning for a possible future draft, but was in what was referred to as “deep standby” status with a minimal budget and staff. Nobody was required to register with the Selective Service System, and no registration records were maintained. The database of registrants was purged, and draft files were transferred to the National Archives. All draft boards were disbanded.

Since 1980, ending draft registration and putting the Selective Service System back into some sort of “standby” or “deep standby” status has been proposed several times as a compromise between continuing the current (failed and unenforceable) registration program and abolishing the Selective Service System altogether.

In 2021, Rep. Jackie Speier (D-San Mateo, CA), the Chair of the Military Personnel Subcommittee of the House Armed Services Committee (HASC), introduced a Selective Service Standby Amendment to the National Defense Authorization Act (NDAA) for fiscal year 2022.

Rep. Speier has been a cheerleader — often a leading one — for expanding Selective Service in its present form to young women as well as young men. The Selective Service Standby Amendment is a compromise negotiated between, and endorsed by, Rep. Speier and Rep. Peter DeFazio, the lead sponsor of the Selective Service Repeal Act.

Like us, Rep. DeFazio continues to strongly support and prefer, and continues to seek co-sponsors for, the Selective Service Repeal Act. But no sponsor of the Selective Service Repeal Act is a member of the HASC. The Selective Service Repeal Act could still be proposed as a floor amendment to the NDAA when that bill is considered by the entire House, but the chances of success for a floor amendment are low.

Suspending draft registration (unless a national emergency is declared), eliminating the extrajudicial administrative penalties and collateral sanctions for nonregistration, and putting Selective Service into “standby” would be better than allowing the current Selective Service registration program to continue unchanged or expanding it, in its present form, to women as well as men.

Along with Rep. DeFazio and many of the anti-draft and antiwar organizations that have been working to end draft registration, we support the Selective Service Standby Amendment. to the NDAA. It’s our best chance to have Congress suspend draft registration rather than expand the current registration requirement to women:

  • Complete repeal of the Military Selective Service Act and abolition of the Selective Service System remain our goals (and Rep. DeFazio’s goals) but are extremely unlikely to succeed in the present Congress.
  • No member of the HASC was willing to introduce an amendment to the NDAA to repeal Selective Service.
  • Given the poor chances for Selective Service repeal in this Congress, the best-case scenario in the absence of some compromise proposal such as to put Selective Service into “standby” would have been for Congress to deadlock and do nothing, thus allowing draft registration of men to continue in its present form.
  • The Selective Service Standby Amendment is not nearly as good as the Selective Service Repeal Act, but it is much better than continuing the status quo, and even more better compared to expanding registration to women.

Key provisions of the Selective Service Standby Amendment to the NDAA are as follows:

  1. Presidential authority to order draft registration would be extended to women as well as men, and all gendered references in the Military Selective Service Act would be changed to non-gendered language. This would allow Rep. Speier and other proponents of equal rights to claim that if there were to be a future draft, it would apply equally to women. But resuming inductions would require further Congressional action (the President has the authority to order registration without fuerther Congressional action, but not actual inductions of drafteees into the military) and Congress could debate whether to include women as part of any propsal to resume inductions.
  2. The President would have the authority to order registration (which he or she now has at any time) only if he or she first declared a national emergency for this specific purpose. Such a declaration of emergency could last no longer than a year. Registration could continue for more than a year only if the declaration of emergency were renewed annually. In theory, the President in office when this law takes effect could immediately declare a state of emergency, and continue registration without interruption. In practice, I expect that no emergency would immediately be declared, and registration would be suspended. A key reason I support the Selective Service Standby Amendment, and encourage you to do so, is that my experience of the start-up of the current registration program in 1980, after a 5-year hiatus, leads me to believe that if draft registration is suspended even briefly, much less for several years, it will be politically and practically very difficult to restart it, and that any attempt to restart draft registration would play into the hands of the antiwar and anti-draft movements (as it did in 1980).
  3. All non-criminal Federal penalties for past, present, or future violations of the Selective Service registration requirement would be repealed, and all such state sanctions would be “preempted”. This would not instantly or directly remove all of the the state penalties, some of which would continue unless and until repealed by state legislatures or overturned by courts. A tedious, costly campaign of state-by-state litigation might be necessary. But anyone able to challenge these state sanctions in Fderal courts should be able to get them voided.

The Selective Service Standby Amendment would put the Selective Service System into “standby” by ending draft registration except if a national emergency specifically justifying it is declared. But it would not put the SSS into “deep standby” as it was from 1975-1980. In particular, draft boards throughout the U.S., which were completely disbanded from 1975-1980, would be maintained if the Selective Service Standby Amendment is enacted.

In this respect, the Selective Service Standby Amendment could be called the “Rostker Amendment”. So far as I know, former SSS Director Bernard Rostker was not consulted about this amendment, but it would put into effect the recommendations he made both in 1980 to President Carter (who for other political reasons overruled Dr. Rostker’s recommendations, as Dr. Rostker has discussed in his memoir) and in 2019 to the National Commission on Military, National, and Public Service (which ignored Dr. Rostker’s testimony as well as my testimony about what would happen if a draft were attemopted based on the current registration database). As recommended by Dr. Rostker, the Selective Service Standby Amendment would suspend ongoing registration, but maintain draft boards and contingency planning for a future draft.

Putting the Selective Service System into “standby”, rather than abolishing it altogether, would also allow war planners to pretend that a draft is a “fallback” policy option, despite the fact — obvious to anyone who looks at the current state of compliance and enforcement, as the NCMNPS chose not to do — that widespread noncompliance has rendered registration unenforceable and the registration database “less than useless”, in Dr. Rostker’s words, for an actual draft.

I would prefer repeal of Selective Service to putting Selective Service into standby. But legislation similar to the Selective Service Standby Amendment would be preferable to either the status quo (ongoing registration for a draft of men) or expansion of the current registraiton requirment to women as well as men. At the same time, we should also continue to prepare for the possibility that women will also be required to register for the draft when they turn 18.

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This page most recently modified 2 January 2022. This site is maintained by Edward Hasbrouck. Corrections, contributions (articles, graphics, photos, videos, links, etc.), and feedback are welcomed.