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The fifth circuit confirms the constitutionality of the draft registration for males solely – however solely on the premise of precedents

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The male-only registration draft is one of the last traces of overt gender discrimination in federal government policy. With a few exceptions, all men between the ages of 18 and 25 must register, while women are categorically excluded. The registration system design is an anomaly at a time when women are eligible for virtually any combat position in the military, and the Supreme Court has tightened scrutiny of gender-discriminatory laws that few can survive.

Nevertheless, the US Court of Appeals for the Fifth Circuit yesterday confirmed the constitutionality of the draft registration system in a brief per curiam statement in the National Coalition for Men against the Selective Service System, in which both Liberal and Conservative judges participated. The court overruled a court decision that I wrote about here.

The panel clarified that this was decided solely on the basis of compliance with the precedent set in the 1981 Supreme Court decision in the Rostker v Goldberg case (which upheld the male-only registration draft against an earlier challenge) :

In 1980, President Carter recommended that Congress extend the (selective service) law to women. I would. In 1981, the Rostker v. Goldberg Supreme Court ruled that male-only registration does not violate the procedural clause of the fifth amendment. The court based its reasoning on the fact that women were then expelled from the fight and postponed the deliberate judgment of Congress on the conduct of the military …

Since then, the military has gradually integrated women into combat roles. In 2013, the Department of Defense ("DoD") announced its intention to open all remaining combat positions to women, the last of which opened in 2016.

Plaintiff-defendants sued the government under 28 U.S.C. Section 1983 for violating their Fifth Amendment rights to be free from sex discrimination. In the case of counter-motions, the district court issued a summary judgment to the plaintiffs and respondents, in which they found that registration was only illegal for men, but refused to issue an injunction. The court found that Rostker no longer controls because women can now serve in combat …

In the Rostker case, the Supreme Court ruled that registering for selective male-only services does not violate due process. The Court concluded: "This is not a case where Congress arbitrarily decides to incriminate either of two similarly situated groups. Men and women are simply not more alike because of the fighting restrictions on women for draft or registration purposes Location." for a design. "I would. At 78-79. The Tribunal also rejected the District Court's conclusion that a certain number of women could be drafted into non-combatant positions without affecting the effectiveness of the military, and instead postponed the decision of Congress that the administrative and operational effort of such an agreement exceeds the benefit.

This involvement controls this court. The Fifth Circuit is a "strict decision-making tribunal" and "cannot ignore a Supreme Court decision unless the Court itself has ordered it." Ballew v Cont & # 39; l Airlines, Inc., 668 F.3d 777, 782 (5. Cir. 2012) …

Here, as in State Oil Co. (v. Khan), the actual underpinning of the ruling Supreme Court's decision has changed, but this does not grant an appeals court a license to ignore or override this precedent.

In other words, the Fifth Circle came to the conclusion that it must continue to use Rostker, although the "objective predicate" on which this judgment is based (inadmissibility of women for combat positions in the military) no longer applies. In my opinion, this overlooks the possibility that the change in factual circumstances will allow the Fifth Circle to remove the male-only registration draft without in any way disrupting the precedent. It is possible that under Rostker a draft registration is constitutional only for men in a world where, as the Rostker court put it, men and women "are simply not equal for the purposes of a draft or registration for a draft" , but become unconstitutional if they are similarly located. In this latter scenario, the gender-discriminatory policy in question can no longer survive the intensified scrutiny of laws that discriminate on the basis of sex.

Admittedly, Rostker's logic is based in part on respect for Congress in the area of ​​national security. However, such special respect is far from being applied consistently, and any general judicial respect in matters of national security would run counter to numerous court decisions which did not apply such special respect in the context of national security. The idea of ​​special respect also has a number of other shortcomings, including the fact that it is nowhere prescribed in the constitutional text.

Regardless, it is noteworthy that the Fifth Circle concluded that Rostker is still protecting the male-only registration draft, but also noteworthy that the judges (both liberal and conservative) recognized that the factual basis for this decision has vanished.

There are several other instances where the male-only registration draft is being questioned. It is possible that another appellate court will decide that Rostker no longer protects the male-only draft from a challenge to the constitution.

Either way, there's a good chance the problem will eventually end up in the Supreme Court. At this point, it is possible for the judges to maintain the draft registration for men only. Conservatives could argue that knocking off is contrary to originalism. In fact, however, there is a strong originalist argument for scrutinizing gender-discriminatory laws, developed by prominent conservative constitutional lawyers Steven Calabresi and Julia Rickert.

In addition, maintaining the male-only bill, based on the idea that gender discrimination should not be subject to heightened scrutiny, would threaten numerous other precedents that require such scrutiny, and empower states and federal governments to do one Enact series of laws that discriminate against men or women. I doubt there are five judges in the court ready to bite that bullet. Creating an exception to tightened scrutiny of national security legislation would also be problematic for a number of reasons, although it may be even more attractive to Chief Justice Roberts and other potential swing voting judges.

I could easily be wrong. If this problem reaches the Tribunal, however, I assume for the time being that a majority would vote in favor of either overriding Rostker or interpreting it as no longer applicable, since women today – unlike in 1981 – can serve in combat positions.

To avoid misunderstandings, I should stress that I am not advocating a system in which both men and women are designed. Rather, I think the right way forward is to abolish the mandatory draft registration for men and women alike. That would promote freedom and equality at the same time. It would end one of the last examples of overt gender discrimination in federal government policies while relieving men and women from the threat of forced labor. In my 2018 testimony before the National Commission on Military, National and Civil Service, I set out in greater detail the reasons for my position in mandating government service of all kinds.

The mandatory registration, while far from an actual draft, makes it easier to reintroduce the latter if and if the government so wishes. For this reason, it would be better to remove the registration system in order to provide both men and women with additional protection against the return of government-mandated forced labor.

If the courts definitively reject the current male-only draft registration system, the outcome is likely not to be a draft registration at all, unless and until Congress decides a gender-neutral version of it. Hopefully then they will choose to toss the draft registration in the trash bin of history, where it belongs.

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