Biden Administration Asks Supreme Court To Drop Challenge to Men-Only Draft

Justice Department signals support for efforts to include women in the draft

Kevin Daley • April 16, 2021 4:30 pm

The Biden administration is urging the Supreme Court not to hear a constitutional challenge to the men-only draft registration system, but female Selective Service registration is still a possibility.

The Justice Department told the High Court on Thursday that judicial action is unnecessary because Congress is actively considering whether to change draft registration rules. The National Coalition for Men and the ACLU say the Military Selective Service Act is unconstitutional because it discriminates against women, and they asked the justices to say as much in January.

“Although this Court might someday wish to reconsider the constitutionality of the MSSA’s registration requirement if that statutory provision remains unchanged, Congress’s attention to the question may soon eliminate any need for the Court to grapple with that constitutional question,” DOJ lawyers wrote in legal papers.

The government’s brief is a sign that female draft registration could soon become a reality. Though the administration asked the justices not to get involved, its brief makes no attempt to defend the constitutionality of the sex-selective draft.

Indeed, the brief acknowledged that the main legal rationale for the men-only registration system is no longer in force. The Pentagon endorsed a draft registration requirement for women in 2017, and a blue ribbon commission that included director of national intelligence Avril Haines recommended that Congress amend the MSSA in March 2020.

The Justice Department’s proposal will likely appeal to the justices. The Court prefers to avoid deciding constitutional questions when it can and often avoids disputes when a legislative solution seems possible.

The Supreme Court upheld the men-only registration law in a 1981 case, Rostker v. Goldberg. Women were excluded from combat roles at that time. A six-justice majority said the MSSA’s registration rules simply reflected military policy, not a congressional choice to discriminate between like groups. The Court also said committees in both chambers studied the issue carefully, and their conclusions on a topic as grave as military affairs deserve deference.

The Defense Department opened combat positions to women in 2016. The plaintiffs challenging the MSSA say that reform destroyed the fundamental premise of Rostker and that the case ought to be overruled.

Female draft registration is a thorny political issue. Congress declined to amend the MSSA after the Defense Department implemented the gender integration policy for combat personnel. Instead, the 2017 National Defense Authorization Act punted the question to a blue ribbon commission that took three years to study the issue. The commission’s 2020 report recommended that men and women alike should be required to register for the Selective Service, and it included a draft bill along those lines.

Expanding registration would raise difficult questions about how deferments or exemptions to the draft would apply to women during conscription. The blue ribbon commission did not take a position on that issue.

Another question is whether the draft could be used to fill occupational specialties in the military. Historically, conscription has been used to augment combat forces. But a future draft could aim to mobilize all specialties, such as cyber operators or linguists.

Senators from both parties received the commission’s suggestions favorably. Sen. Jack Reed (D., R.I.), chair of the Senate Armed Services Committee, said the commission’s guidance could be incorporated into the next annual defense authorization bill during a hearing in March. Sen. Joni Ernst (R., Iowa), who also serves on Armed Services, backs the commission’s proposals as well.

The next defense authorization bill is months away, however. The measure would also have to pass in the House, which has shown little interest in the issue. The commission’s draft bill was referred to a dozen separate committees in the House last spring, a common tactic for burying politically fraught legislation.

The bill’s prospects in the lower chamber will probably improve if the change is a component of the mammoth, must-pass defense bill, which usually enjoys strong bipartisan support. And the commission’s draft legislation includes a range of measures meant to promote public service, which could make the measure more palatable to lawmakers.

The armed forces remain about 85 percent male, according to a 2020 report from the Brookings Institution.

The Court could decide whether to hear the case, No. 20-928 National Coalition for Men v. Selective Service System this summer.