Congress, court weigh requiring females to register for the draft

The year after the Soviet Union invaded Afghanistan in 1979, President Jimmy Carter issued an executive order reinstating the requirement that men turning age 18 register for the Selective Service System and keep this information updated through age 25. At the time, Carter also said Congress should amend the Military Selective Service Act (MSSA) to include women in this process.

The law didn’t change, and still only men must register for the draft, which the nation has not had since 1973. And in the 40-plus years since Carter’s order, the now all-volunteer military force has evolved in important ways.

Females now make up nearly 17.4% of the active duty force. The most recent Department of Defense (DOD) data shows that of the 1,349,826 individuals serving in the Army, Navy, Marine Corps and Air Force, 234,685 are women. In the post-Sept. 11, 2001, wars in Afghanistan and Iraq, in particular, more women served in combat roles. In 2015, DOD formalized the full integration of women in the armed forces, including into combat roles.

Supreme Court petitioned these and other recent developments have renewed pressure on Congress and the White House to revisit the issue that Carter raised four decades ago.

The American Civil Liberties Union — in a petition filed on behalf of the National Coalition for Men and two males and backed by national women’s rights and legal organizations, female and LGBTQ military and Veterans’ groups, former military leaders and others — is arguing that the Supreme Court should hold that the sex-based registration system under the MSSA is unconstitutional under the Fifth Amendment’s Due Process Clause. The ACLU is not, however, asking the court to require women to register for the Selective Service.

That recommendation was made by a commission Congress established to study the military Selective Service system and other aspects of public service.

Commission recommends expanding registration

“After extensive deliberations,” members of the 11-member National Commission on Military, National and Public Service said in a 255-page report published last March, “the Commission ultimately decided that all Americans, men and women, should be required to register for Selective Service and be prepared to serve in the event a draft is enacted by Congress and the President.”

Debra Wada, who served as the commission’s vice chair for military service, said the commission came to this conclusion after finding that women applicants for military service qualify at about the same rate as men and shouldn’t mobilize for a crisis without the skillsets of roughly half its population.

Wada, a former assistant secretary of the Army for Manpower and Reserve Affairs, testified in March before the Senate Armed Services Committee about this and the commission’s many other recommendations to improve the military and national service system. Members of the commission are expected to testify before the House Armed Services Committee this month.

In addition to including women, the commission recommended that policymakers take steps to make the military Selective Service fairer and more transparent so registrants understand their service obligations. Wada said the panel found that the largely automatic system of registration has led to some not knowing what it’s for. More than half of 16- to 24-year-olds surveyed by DOD in 2019 weren’t aware the military Selective Service is to draft forces during a national crisis, the commission found.

Given that lawmakers are studying these issues, the Biden administration is asking that the Supreme Court deny the ACLU’s petition. No action would let stand a 1981 decision in Rostker v. Goldberg upholding the men-only registration system under the MSSA.

Preferring to let the legislative branch decide the issue, President Joe Biden’s Acting Solicitor General Elizabeth B. Prelogar told the court in her brief that “Congress’s attention to the question may soon eliminate any need for the Court to grapple with that constitutional question.”

Lawmakers propose scrapping whole system

One bipartisan group of lawmakers would grapple with the question by scrapping the military Selective Service system, viewing it as costly and unnecessary given the nation’s reliance on an all-volunteer military.

Sens. Ron Wyden, D-Ore., and Rand Paul, R-Ky., and Reps. Peter DeFazio, D-Ore., and Rodney Davis, R-Ill., introduced bills (S. 1139/H.R. 2509) last month to phase out the Office of Selective Service Records, saying it requires $25 million annually to ready the nation for a draft that hasn’t occurred in almost 50 years.

“I’ve long stated that if a war is worth fighting, Congress will vote to declare it and people will volunteer,” Paul said in a statement.

History doesn’t bear this out, countered Wada. Even the military enlistment surge in the post-9/11 period, she noted, eventually waned. The military Selective Service — expanded to include women — is still the fairest and most equitable way for the nation to quickly assemble the skilled personnel needed in a crisis.

Learn more

Read about the Selective Service System: https://rly.pt/3ftAOPh

Read Sen. Wyden’s news release: https://rly.pt/3eVUfkQ

Read the petitions to the Supreme Court in National Coalition for Men v. Selective Service System: https://rly.pt/3fnZmJj

Read the National Commission on Military, National and Public Service final report, Inspired to Serve: https://rly.pt/3eQXBFA

Watch the commission present its findings to the Senate Armed Services Committee on March 11: https://rly.pt/3eUnrIL