Appeals Court hears arguments on the Constitutionality of draft registration

I was in the moot court room at Tulane Law School in New Orleans this Tuesday morning, March 3rd — not for a moot court competition, but for for-real arguments before a 3-judge panel of the 5th Circuit Court of Appeals on the government’s challenge to a U.S. District Court ruling a year ago that the current requirement for young men to register with the Selective Service System when they turn 18, and inform the SSS every time they change their address until they turn 26, is unconstitutional.

It’s important to start by understanding, as explained in my earlier FAQ about the District Court court decision, that this case is solely about whether men can be required to register. Contrary to some inaccurate reports, the plaintiffs did not request, and the District Court did not and could not order, that women be required to register or penalized if they don’t. The courts can only rule on the current male-only registration requirement. If the District Court ruling is upheld, nobody will be required to register with the Selective Service System. That would bring a messy end to draft registration, and leave many loose ends — which is why opponents of draft registration (PDF version) would still support legislation such as H.R. 5492. But it would end the registration requirement for men, not extend it to women. Women would be required to register only if Congress enacts a new law authorizing the President to order women to register, and the President issues such an Executive Order.

Paul Jacob — another of the 20 men including me who were prosecuted for publicly refusing to register for the draft in the 1980s, before the Department of Justice gave up on trying to enforce the registration requirement in 1988 in the face of massive noncompliance — also came to New Orleans for the oral argument on Tuesday.

None of the “amici” (organizations that had filed friend-of-the-court briefs) appeared at the 5th Circuit hearing. So far as Paul and I could tell, no other activists or journalists were in the room, although the Associated Press and Military Times published stories which appear to be based on the audio recording posted by the court later on Tuesday.

Marc Angelucci argued for the National Coalition For Men (NCFM) and two young men who object to being required to register and report address changes. Angelucci’s basic argument was relatively straightforward: Men are required to register for a possible military draft, and can be penalized if they don’t. Women aren’t. The District Court was correct to find that this is unconstitutional discrimination on the basis of gender. Since women are now allowed in all combat assignments within the military, there is no longer any rational relationship, much less one sufficient to satisfy the heightened scrutiny courts are required to give laws that discriminate explicitly on the basis of gender, between any legitimate military or other government interest and requiring men, but not women, to register for a possible draft.

Claire McCusker Murray of the Department of Justice argued on behalf of the Selective Service System. Her lengthy bureaucratic title, “Acting Principal Deputy Associate Attorney General”, makes it less than obvious that she is the 3rd-ranking official in the Department of Justice, in charge of the Civil Division of the DOJ. Her appearance in New Orleans to argue this case in the Circuit Court reflects the government’s recognition of its significance.

Murray opened her argument, “This is a case about deference.” She argued, with different apparent degrees of success, for deference by the Court of Appeals both to the decisions of Congress and to the 1981 Supreme Court precedent in Rostker v. Goldberg .

The argument for deference to Congress had two prongs, both of which prompted skeptical questions from the panel of judges.

Murray argued that Congress might have had rational reasons for requiring men but not women to register for a possible military draft. But she gave only a sketchy and hypothetical idea of what those reasons might be. In rebuttal, Angelucci argued that requiring only men to register, when the Pentagon and the Commander-in-Chief have both determined that women should be eligible for all combat assignments, fails to satisfy even a “rational basis” standard for justifying government action, much less the “heightened scrutiny” applicable to discrimination on the basis of gender. Under questioning, Murray was forced to acknowledge explicitly that she was asking for deference to Congress but not to the President as Commander-in-Chief, or the Pentagon.

Murray also argued that even if the decision by the President and the Pentagon to open all combat assignments to women has rendered requiring only men to register for the draft unconstitutional, the courts should allow more time for the National Commission on Military, National, and Public Service to make its recommendations later this month, and for Congress to consider whether to change or repeal the Military Selective Service Act (MSSA). But that’s a dangerous argument that could be used to block judicial redress in almost any case of illegal government action in which corrective legislation had been, or might be, proposed, even if it had not been adopted. As the District Court noted in its judgment, “Congress has been debating the MSSA’s registration requirement for decades with no definite end in sight. Even constitutionally mandated deference does not justify a complete and indefinite stay when parties allege that the federal government is presently violating their constitutional right…. The Commission is under no obligation to recommend certain outcomes to Congress, and Congress is under no obligation to follow or act on those recommendations.”

The judges seemed more receptive to Murray’s argument that deference to Supreme Court precedent precludes them from finding that requiring only men to register is unconstitutional. Murray argued that regardless of whether the underlying facts have changed, only the Supreme Court can reverse its 1981 holding in Rostker v. Goldberg. Angelucci responded, in essence although not in exactly these words, that because the facts today are different than they were in 1981 when women were barred from combat, Rostberg v. Goldberg simply doesn’t apply and need not be reversed to find that, in today’s different factual circumstances, requiring only men to register is unconstitutional.

This argument may seem arcane. But the important thing to recognize is that, if the Court of Appeals decides that “stare decisis” and deference to Supreme Court precedent requires it to overturn the District Court ruling — even though it would, if it could, uphold it — that would only postpone the reckoning for the government until this or another such case reaches the Supreme Court. Such a Circuit Court ruling invites and encourages the Supreme Court to take the case and explicitly reverse its earlier finding in Rostker v. Goldberg, in light of the change in military policy.

As expected, no decision was announced at the hearing. The judges will confer and write an opinion with special care, knowing that their decision is likely to be reviewed by the U.S. Supreme Court. In the absence of any reason or request for haste, it would typically be at least a few months before a decision is released, and it could be many months. There is no statutory deadline for appellate decisions.

Below are links to the key documents and records about this case and appeal:

• Decision by the U.S. District Court for the Southern District of Texas:
  • Declaratory Judgment (22 February 2019)
  • FAQ about the case and the District Court judgment
• Briefs on appeal to the 5th Circuit Court of Appeals:
  • Parties:
    • Opening brief for the Selective Service System
    • Brief for NCFM et al.
    • Reply brief for the Selective Service System
  • Friends of the court (“amici curiae”):
    • Civil liberties and womens-rights organizations in support of NCFM
    • Eagle Forum in support of the Selective Service System
• 5th Circuit panel for this case on appeal:
  • Judge Carl E. Stewart (presiding judge of the panel)
  • Judge Don R. Willett
  • Judge Jacques L. Wiener, Jr.
• Counsel arguing for the parties on appeal:
  • Marc Angelucci for the National Coalition For Men, et al.
  • Claire McCusker Murray for the Selective Service System
• Oral argument before the 5th Circuit Court of Appeals (2 March 2020):
  • Oral argument calendar
  • Official audio recording of oral argument
• 5th Circuit docket:
  • PACER docket (official and complete, but fee-based)
  • RECAP mirror of PACER docket (free but may not be complete or up to date)