Editor’s note: This is part five of a six-part series on conscription (the draft).
On Feb. 2, 1972, a drawing was held to determine draft priority numbers for men born in 1953, but in January 1973, Secretary of Defense Melvin Laird announced that no further draft orders would be issued. In March 1973, 1974, and 1975, the Selective Service assigned draft priority numbers for all men born in 1954, 1955, and 1956, in case the draft was extended, but it never was.
On July 2, 1980, President Jimmy Carter issued Presidential Proclamation 4771 and re-instated the requirement that young men register with the Selective Service System (SSS). At that time, it was required that all males, born on or after Jan.1, 1960, register with the SSS. Those who were now in this category were male U.S. citizens and male immigrant non-citizens between the ages of 18 and 25; they were required to register within 30 days of their 18th birthday even if they were not actually eligible to join the military.
The SSS, still essentially what it was in 1980, describes its mission as “to serve the emergency manpower needs of the United States military by conscripting untrained manpower, or personnel with professional health care skills, if directed by the U.S. Congress and the president in a national crisis.”
The Selective Service registration form states that failure to register is a felony punishable by up to five years imprisonment or a $250,000 fine. In practice, though, no one has been prosecuted for failure to comply with draft registration since 1986, in part because prosecutions of draft resisters proved counter-productive for the government during the Vietnam War.
Even in the absence of prosecution, failure to register may lead to other consequences. Registration is a requirement for employment by the federal government and some state governments, as well as for receiving various state benefits such as driver’s licenses. Refusing to register can also cause a loss of eligibility for federal financial aid for college.
On Dec. 1, 1989, Congress ordered the SSS to put in place a system capable of drafting “persons qualified for practice or employment in a health care and professional occupation,” if such a special-skills draft should be ordered by Congress. In response, Selective Service published plans for the “Health Care Personnel Delivery System” (HCPDS) in 1989 and has had them ready ever since. The HCPDS plans include women and men ages 20-54 in 57 different job categories. As of May 2003, the Defense Department has said the most likely form of draft is a special skills draft, probably of health care workers.
In 1918, the Supreme Court ruled that the World War I draft did not violate the United States Constitution in the Selective Draft Law Cases. It held that the Constitution’s grant to Congress of the powers to declare war and to raise and support armies included the power to mandate conscription. It rejected arguments based on states’ rights, the 13th Amendment, and other provisions of the Constitution.
Later, during the Vietnam War, a lower appellate court also concluded that the draft was constitutional. United States v. Holmes, 387 F.2d 781 (7th Cir.), cert. denied, 391 U.S. 936 (1968). Justice William O. Douglas, in voting to hear the appeal in Holmes, agreed that the government had the authority to employ conscription in wartime, but argued that the constitutionality of a draft in the absence of a declaration of war was an open question, which the Supreme Court should address.
During the World War I era, the Supreme Court allowed the government great latitude in suppressing criticism of the draft. In subsequent decades, however, the court has taken a much broader view of the extent to which advocacy speech is protected by the First Amendment. In 1971, the court held it unconstitutional for a state to punish a man who entered a county courthouse wearing a jacket with the words “F*** the Draft” visible on it. Nevertheless, protesting the draft by the specific means of burning a draft registration card can be constitutionally prohibited because of the government’s interest in prohibiting the “non-speech” element involved in destroying the card.
Since the reinstatement of draft registration in 1980, the Supreme Court has heard and decided four cases related to the Military Selective Service Act: Rostker v. Goldberg, 453 U.S. 57 (1981), upholding the constitutionality of requiring men, but not women, to register for the draft; Selective Service v. Minnesota Public Interest Research Group (MPIRG), 468 U.S. 841 (1984), upholding the constitutionality of the first of the federal “Solomon Amendment” laws, which requires applicants for federal student aid to certify that they have complied with draft registration, either by having registered or by not being required to register; Wayte v. United States, 470 U.S. 598 (1985), upholding the policies and procedures which the Supreme Court thought the government had used to select the “most vocal” non-registrants for prosecution, after the government refused to comply with discovery orders by the trial court to produce documents and witnesses related to the selection of non-registrants for prosecution; and Elgin v. Department of the Treasury, 567 U.S. _ (2012), regarding procedures for judicial review of denial of Federal employment for non-registrants.
In 1981, several men filed lawsuit in the case Rostker v. Goldberg, alleging that the Military Selective Service Act violates the Due Process Clause of the Fifth Amendment by requiring that men only and not also women register with the SSS. The Supreme Court upheld the act, stating that Congress’ “decision to exempt women was not the accidental byproduct of a traditional way of thinking about women,” that “since women are excluded from combat service by statute or military policy, men and women are simply not similarly situated for purposes of a draft or registration for a draft, and Congress’ decision to authorize the registration of only men therefore does not violate the Due Process Clause,” and that “the argument for registering women was based on considerations of equity, but Congress was entitled, in the exercise of its constitutional powers, to focus on the question of military need, rather than ‘equity.’”
The Rostker v. Goldberg opinion’s dependence upon deference on decision of the executive to exclude women from combat has garnered renewed scrutiny since the Department of Defense announced its decision in January 2013 to do away with most of the federal policies that have kept women from serving in combat roles in ground war situations. Both the U.S. Navy and the U.S. Air Force had by then already opened up virtually all positions in sea and air combat to women. Lawsuits were filed challenging the continued constitutionality of requiring men, but not women, to register with the Selective Service System.