Supreme Court Won’t Review Constitutionality of Current Male-Only Draft Registration Requirement

The U.S. Supreme Court announced today that it has denied the petition for certiorari in the case of National Coalition For Men v. Selective Service System.

The Supreme Court’s action today leaves in effect the decision by the 5th Circuit Court of Appeals dismissing the complaint and the District Court judgment.

What has happened, and what does it mean for the future of Selective Service?

The Supreme Court’s self-imposed rules require the votes of four of the nine Justices to hear a case. Those votes are taken behind closed doors, and neither how many Justices (if any) voted to hear a case, nor how any individual Justice voted, are made public unless one or more Justices choose, at their own sole discretion, to disclose their vote and/or issue a written statement.

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House Hearing on Selective Service

A House Armed Service Committee (HASC) hearing on May 19th heard from witnesses on only one side of the debate over whether to end draft registration or extend it to young women as well as young men. But despite the one-sided panel of witnesses, questions and comments from members of Congress highlighted the failure of the ongoing attempt to get men to register for a future military draft, and the lack of any feasible way to enforce a future military draft of men or women.

The Chair of the Armed Service Committee, Rep. Adam Smith (D-WA), opened the hearing by noting a written statement submitted by Rep. Peter DeFazio (D-OR). Rep. DeFazio is one of the initial co-sponsors of the bipartisan Selective Service Repeal Act of 2021 (H.R. 2509 and S. 1139), which is pending in the Armed Services Committees in both the House and the Senate.

According to Rep. DeFazio, "President Carter reinstated draft registration in 1980 largely for political reasons. Military draft registration has existed ever since, requiring all men aged 18-26 to register with the Selective Service System (SSS). It should be repealed altogether…. The SSS is an unnecessary, unwanted, archaic, wasteful, and punitive bureaucracy that violates Americans’ civil liberties… It’s beyond time for Congress to repeal the SSS once and for all."

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‘Selective Service Repeal Act’ Introduced in Congress

The Selective Service Repeal Act of 2021 (H.R. 2509 and S. 1139) was introduced in Congress on April 14th with bipartisan support in both the House and the Senate.

Initial co-sponsors of the bill to end draft registration and abolish the Selective Service System are Rep. Peter DeFazio (D-OR), Rep. Rodney Davis (R-IL), Sen. Ron Wyden (D-OR), and Sen. Rand Paul (R-KY).

"No young person, regardless of gender, should be subject to a military draft or be forced to register for a draft in the United States. The military draft registration system is an unnecessary, wasteful bureaucracy which unconstitutionally violates Americans’ civil liberties. We should be abolishing military draft registration altogether, not expanding it," said Rep. DeFazio.

"If a war is worth fighting, Congress will vote to declare it and people will volunteer," said Sen. Paul.

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Opponents of Military Conscription Call for ‘Full and Fair’ Hearing Before Congress Decides Whether To Expand Selective Service to Women – or To End It

As Doug Bandow reported on Antiwar.com Wednesday, military conscription is a bad idea that just won’t die – and right now it’s under active consideration in Congress.

Two years ago, Doug Bandow and I were both invited to testify before the National Commission on Military, National, and Public Service (NCMNPS), which was appointed to study (and give Congress political cover for its decision on) whether to finally end Selective Service registration after forty years of failure, or to try to get women as well as men to sign up to for a draft "just in case" the government wants to fight so large, so many, so prolonged, or so unpopular wars that it can’t recruit enough volunteers.

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Supreme Court Asked To Review Constitutionality of Current Male-Only Draft Registration Requirement

Today the National Coalition For Men, a men’s rights organization represented by the American Civil Liberties Union, petitioned the U.S. Supreme Court to review the Constitutionality – now that women are allowed in all military combat assignments – of the law which requires men but not women to register with the Selective Service System for a possible military draft.

I’ve been tracking this case up and down through the lower courts since 2015, and I attended the oral argument last year before the 5th Circuit Court of Appeals in New Orleans that led to the ruling that the Supreme Court is now being asked to review. Today’s filing of a petition for certiorari is no surprise. But for those who haven’t been following the issue closely, it raises questions about the seeming strange bedfellows – a women’s rights project defending a “men’s rights” group and its members? – and the future of Selective Service registration.

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Good News and Bad News for the Military Draft in 2021

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. The new law also requires the Department of Education to remove the questions about Selective Service registration from the FAFSA student aid application form.

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.

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