What will the SG do in National Coalition for Men v. Selective Service System?

If the Biden Administration refuse to defend the constitutionality of the male-only selective service, Congress will not likely intervene.

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Under current federal law, only men are required to register for the draft. The Supreme Court upheld 50 U.S.C. § 3802(a) in Rostker v. Goldberg (1981). At the time, women could not serve in combat roles. But in 2016, the Obama Administration allowed women to participate in combat roles. Subsequently, the National Coalition for Men challenged the federal law as a violation of the Equal Protection component of the Fifth Amendment. In 2019, a federal district court judge in Houston declared the policy unconstitutional. But in 2020, the Fifth Circuit found that the district court's judgment "directly contradicts" Rostker.

The National Coalition for Men filed a cert petition on January 8. The SG's response was due on February 11. Acting SG Prelogar sought a one month extension.

This extension is requested to complete preparation of the government's response, which was delayed because of the heavy press of earlier assigned cases to the attorneys handling this matter.

One month later, the Acting SG requested another extension:

This extension is necessary because the attorneys with principal responsibility for preparation of the government's response have been heavily engaged with the press of previously assigned matters with proximate due dates.

What is going on here? Adam Liptak suggests that change may be afoot:

The Trump administration defended differing registration requirements in the appeals court. The Biden administration has twice sought extra time to respond to the petition seeking Supreme Court review in the case, National Coalition for Men v. Selective Service System, No. 20-928, and its brief is now due on April 14.

It is possible that the Biden Administration will agree with the petitioners and decline to defend the constitutionality of the statute. This move would echo the Obama administration's decision not to defend the Defense of Marriage Act in Windsor. In both cases, these laws did not run afoul of any Supreme Court precedent. Rather, subsequent practices (arguably) cast doubt on the validity of past precedents. Lower courts cannot anticipatory disregard Supreme Court precedents, but the executive branch apparently can.

But there would be one significant difference between this case, and Windsor. In 2011, the House was controlled by Republicans. As a result, the Bipartisan Legal Advisory Group (BLAG) retained Paul Clement to intervene in the case. Now, both houses are controlled by Democrats. If DOJ sends a 530(d) notification to Congress, and there is no majority to defend the statyute, what happens? In my view, the case would be over, as there is no adversity. The federal law would not be enforced by the current administrations, but the next administration could resume enforcing it. (Good luck with rescinding millions of female registrations). Or, the Court could keep the case alive by appointing an amicus. (Hell, make it Paul Clement for nostalgia's sake. Though, this case arose from the 5th Circuit, so we would likely see a CT clerk.) And if the Court upholds the statute, the Biden administration would have to continue enforcing the regime.

Of course, Congress could also repeal this statute. But that move would require political accountability. It is much easier to decline to defend a law, and let it fall into desuetude.

The Acting SG will soon have to make another difficult decision. The Court granted review in US v. Tsarnaev, the Boston marathon bombing case. President Biden has stated he opposes the death penalty. Adam Liptak reports:

After the appeals court ruling, lawyers for the federal government during the Trump administration urged the Supreme Court to hear the case.

The case presents President Biden with an early test of his stated opposition to capital punishment. Were the administration to decide not to pursue the death penalty against Mr. Tsarnaev, the Supreme Court case would become moot.

Jen Psaki, the White House press secretary, answered generally when asked about how Mr. Biden would approach the case.

"He has grave concerns about whether capital punishment as currently implemented is consistent with the values that are fundamental to our sense of justice and fairness," Ms. Psaki said at a press briefing on Monday. "He has also expressed his horror at the events of that day and Tsarnaev's actions."

A Justice Department spokeswoman declined to comment.

Will his SG defend the death penalty sentence below? If he doesn't, then presumably DOJ would have to take the same position in all pending federal cases involving the death penalty. And these decisions would be final. If Biden no longer seeks the death penalty against Tsarnaev, I don't think a future President could seek to reimpose that sentence.

Yesterday, I observed that the decision to appoint an SG is extremely important. These two cases illustrate the high stakes.

NEXT: Today in Supreme Court History: March 25, 2014

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  1. I don’t think that this is precisely correct: “stop enforcing it” here does not mean that the DOJ can simply stop punishing people. Here, “stop enforcing it” requires the government to take active steps to require women to sign up for Selective Service. It requires rulemaking and enforcement activity against women who fail to sign up. The penalties can be severe if one has not signed up. Women are only similarly situated here if they care subject to the same penalties.

    1. Why? “Stop enforcing it” could be equally met by stopping the registration of men. It would cause the entire selective service regime to “fall into desuetude” rather than just the sexist distinction – but is that necessarily bad from either the Administration’s or Congress’ point of view?

      1. Declaring the entire Selective Service scheme/law unconstitutional and telling men not to register… possible but that seems highly unlikely.

        1. Nope, that’s going too far. Nobody is arguing that the idea of the Selective Service registration is unconstitutional. It’s the sexist distinction that is arguably unconstitutional. Assuming that point, the government has two options to resolve the violation.
          1. End the sexism by extending the registration obligation to women.
          2. Moot the question by quietly ending the registration obligation.

          Why would option 2 be unattractive to either Congress or the current Administration?

    2. Exactly — it’s like the gay marriage decision in Massachusetts — if the government loses the suit, even by default, I don’t see how they can just do nothing.

      Much like Massachusetts had to issue marriage licenses to gays and lesbians, the Selective Service will have to demand & process registrations from females. And demand that they prove it as a condition of receiving Federal financial aid for college.

      I can’t see anything less in compliance with the ruling.

  2. The Boston bomber case is not high stakes. Nothing much will change if he is let out of prison or executed tomorrow, and nothing much will change if the First Circuit decision in this unusual case stands or falls.

    In the Selective Service case, presidential advisors such as the Attorney General will tell the Solicitor General what she thinks.

    1. If I am not mistaken, the government — right now — is free to hold a second sentencing trial for the Boston Bomber if they wish, although they’d probably have to change venue. If I am not mistaken, the current SCOTUS suit is to not have to do that, to be able to execute him on the basis of the first sentencing trial.

      So they could go to, say District of Colorado tomorrow and start a sentencing trial (or the stuff for one).

      He’s been convicted, so there is no statute of limitations on a crime — what prevents Trump from starting a second sentencing trial in 2025? Unless there is some Federal rule of court that precludes this (if so, what?) then why can’t this happen?

  3. ” Here, “stop enforcing it” requires the government to take active steps to require women to sign up for Selective Service.”

    Unless, say, they wanted to stop wasting money registering people for the non-existent draft.

    1. The District Court did not issue an injunction, leaving it up to the government how to respond. Given the choice between an easy and cost-saving response and a difficult and expensive one, I expect the latter.

      1. Congress could repeal the Selective Service Act. It has not been used in a long time and seems unlikely to be needed anytime soon.

        1. Jimmy Carter implemented it so as to appear to be “doing something” in response to the Soviet invasion of Afghanistan. And even with the information technology of the 1970s (big bulky mainframes), it was said that it would only save a few weeks if a draft was ever needed.

          Today — other than it being psychological — I can’t see it being of any use whatsoever. The addresses aren’t being updated and while a lot more young adults are living with their parents than in past generations, most of them aren’t. Hence knowing where the person was when he (or she) turned 18 (in high school) is not helpful in trying to find the person a few years later…

          Far easier to just get the more accurate data from the state driver license databases….

    2. There are a lot of processes that check for Selective Service registration. If the DOJ stopped punishing non-registration, that wouldn’t also eliminate those checks. They wouldn’t go away until you changed all the procedures, processes and forms. I think the issue will get ducked and men still be forced to sign for Selective Service indefinitely. Maybe the high court would just not accept those cases.

      1. I’m aware. As a 40-year-old applicant to law school, I was required to certify that I was in compliance with Selective Service.

        1. James, were you an expert in another subject?

  4. Of course, Congress could also repeal this statute. But that move would require political accountability. It is much easier to decline to defend a law, and let it fall into desuetude.

    Which is exactly why the court should skip it and allow the law to remain on the active list.

    Draft women, I am fine with that. But make Congress stand tall before the voters to earn their pay*.

    * Which is mainly spouses discovering they are investment geniuses, with a little extra from the Congressional pay itself.

  5. Other than continuing to be a make-work project for the staffers of the Selective Service administration, what tangible benefit is there for maintaining such a registry.
    It surely must be under-enforced, as the principle punishment is withholding of federal student loans for non-registered males (a penalty not exacted on females). Then after primary registration, is any male actually updating the SSA within 10 days of each change in address? A normal part of being a young adult is having a new ‘permanent’ address at least once per year.

    When a law is massively un-enforced, then enforcement becomes a secondary tool of wielding state power on the disfavored.

    1. The entire thing is stupid. If military leaders thought there was a benefit to a conscripted military, we certainly would have conscripted one after 9/11. And if you really, for some reason, needed to conscript one on short notice, the government has access to enough records to do so.

      Carter reinstated it after the Soviets invaded Afghanistan. Like his other move in response to that invasion (boycotting the Olympics), this was petulant, and accomplished nothing. He couldn’t accept that the United States doesn’t get to run the world and if the Soviets wanted to invade Afghanistan, it was none of our business and we couldn’t do anything about it even if it were.

      This is a dumb, vestigial law, and it should be repealed.

  6. I opposed females in combat. Facts say otherwise. Weaker and more injured. Female attrition is lower. Israeli and Kurdish females soldiers have been victorious. Matter is settled. Draft the feminists.

  7. It’s a meaningless argument now. If you join the military these days around 90% or more of the time you will be what was known in more honest times as a campfollower not an actual soldier. In no more danger than many civilian jobs. And that percentage will increase over time as combat is more restricted to robots and a handful of elite operatives. So we have the luxury of allowing 90lb Susie to play weekend warrior and turn the military into a taxpayer funded social engineering daycare.

    1. Don’t forget Private First Class Jessica Lynch, who was serving as a unit supply specialist with the 507th Maintenance Company…

      1. lol now that is a blast from the past. Remember when some people wanted to give her the MoH? To her credit she herself was a lot saner than many of the politicians fawning over her. And kinda cute too. No wonder they wanted her as a poster girl.

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