Congress, Not Courts, Should Decide the Future of the Military Draft, Justice Department Says

soldiers sun sets at Camp Williams, Utah
After completing a building clearing and rescue mission in an urban environment, a group of soldiers from the 76th Operational Response Command gather to discuss the details of the event as the sun sets at Camp Williams, Utah, April 16, 2021. (Brent C. Powell/U.S. Army Reserve)

The Biden administration has asked the U.S. Supreme Court to reject a petition calling for the men-only draft registration to be declared unconstitutional and let Congress decide the future of the Selective Service System.

In a brief filed to the court April 14, Acting Solicitor General Elizabeth Prelogar said consideration of the case -- the National Coalition for Men v. Selective Service System -- would be "premature at this time," since Congress is "actively considering” the scope of the registration.

Prelogar, the Justice Department official who argues cases before the Supreme Court, pointed out that previous court decisions "made it clear that the Court should defer to Congress where possible in this sensitive military context," and said legislation has been introduced to address the issue.

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She also argued that Congress has not had time to consider more than 160 recommendations made last year by a blue-ribbon commission on the future of the draft and national service.

"This Court should afford Congress a reasonable opportunity to consider the Commission's recommendations, particularly given their breadth and timing," Prelogar wrote in her brief.

The case challenges the constitutionality of a requirement that all American men aged 18 to 26 register with the Selective Service System in the event that a national emergency warrants a military draft.

The plaintiff, the National Coalition for Men, represented by the American Civil Liberties Union, argues that registration should be expanded to include men and women.

In February, 10 retired military general and flag officers, including retired Air Force Gen. Mike Hayden, former director of the National Security Administration; Army Gen. Stanley McChrystal; and Army Lt. Gen. Claudia Kennedy, penned a brief supporting that argument.

"Including women in the selective service would double the pool of candidates available to draft, raising the overall quality of the conscripted force and enabling the nation to better meet its military needs," the officers wrote.

But Prelogar made no mention of expanding the registration to include women. Instead, she focused on a previous case, Rostker v. Goldberg, in which the justices ruled the registration constitutional because its function was to furnish combat troops during a period of national emergency. At the time of the ruling in 1981, women were barred from serving in combat roles and thus would not be able to contribute.

But the Defense Department lifted the ban on women in combat in 2013, and all military specialties became open to women in 2015.

"Rostker itself made clear that the Court should defer to Congress where possible in this sensitive military context," Prelogar argued.

She also noted the work of the National Commission on Military, National and Public Service, which produced a 245-page report last March making 164 recommendations to Congress on Selective Service, the draft, civic education, and non-military national or public service.

The commission said Selective Service registration should be extended to women, and commission members included the provision in proposed legislation that accompanied their report. That proposal, the Inspire 2 Serve Act, was introduced in the House in March 2020 but never made it past committee, overshadowed by the coronavirus pandemic.

"The timing of the Commission's finalization of the report -- which coincided with the early months of the COVID-19 pandemic -- may have interfered with Congress's ability to take immediate action in response to the report," Prelogar wrote. "Congress has not had even one full legislative cycle to consider whether to adopt the recommendations in the Commission's March 2020 report."

The Senate Armed Services Committee held a hearing on the panel's recommendations in March 2021.

Last week, a bipartisan group of lawmakers introduced legislation to abolish the Selective Service System, calling its $25 million annual cost a waste of taxpayer dollars.

Introduced by Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky., as well as Reps. Peter DeFazio, D-Ore., and Rodney Davis, R-Ill., the legislation would dismantle the system. Military conscription ended in 1973 when the U.S. military moved to an all-volunteer force.

"Congress hasn't come close to reinstating a military draft in 50 years, and I can't imagine a scenario where it would," Wyden said in a release on the proposed legislation.

"It has been nearly 50 years since the draft was last used. I've long stated that if a war is worth fighting, Congress will vote to declare it and people will volunteer. This outdated government program no longer serves a purpose and should be eliminated permanently," Paul said.

The Supreme Court now must decide whether to hear oral arguments in the case or request more information from the parties.

-- Patricia Kime can be reached at Follow her on Twitter @patriciakime.

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