"Draft Registration: Congress, the Supreme Court, and theSeparation of, Powers"

Report The Constitution

"Draft Registration: Congress, the Supreme Court, and theSeparation of, Powers"

March 26, 1981 31 min read Download Report
Thomas R.
Senior Visiting Fellow

(Archived document, may contain errors)

136 March 26, 1981 DWW EGISTRA~W: CWGRESS WE SUPREM COURT AND WE SEPMATIW OF POWERS INTRODUCTION On March 24, the Supreme Court heard oral arguments on the constitutionality of the exclusion of women from draft registra tion. The case, Rostker v. Goldberq (orginally Rowland v. Tarr was filed nearly ten years ago as a challenge to the consti tutionality of the draft itself, not simply to the constitutional ity of excluding women. The plaintiffs argued that the draft violated the First, Fifth, and Thirteenth Amendments to the Constitution. The U.S. District Court for the Eastern District of Pennsylvania dismissed the suit in 1972 (341 F. Supp. 339 but, on appeal, the U.S. Circuit C o urt for the Third District ordered the case revived in order to decide the sole question of whether the exclusion of women was impermissible discrimination under the equal protection tlcomponentll of the Fifth Amendment (480 F. 2nd 545, 1973 A special thr e e-judge district court was convened in 1974, but decided only preliminary matters of juris diction and justiciability (378 F. Supp. 766 No further action was taken on the case until 1979 when congressional proposals to reinstitute draft registration (Pres i dent Carter adding his own proposal in 1980) prompted the district court to re-open the case eventually deciding that the recently-enacted law requir ing the registration of men only was unconstitutional (No. 71-1480 July 18, 1980 The government immediate l y appealed the decision to the Supreme Court where Justice Brennan, in a decision in camera because the full Court was out of session, stayed the injunction until the full Court could decide the- issue (49 LW 3013, July 19 I I 1980 This paper examines the intent, meaning, and history of the war powers of Congress, especially the power "to raise and support armies I as provided by Article I of the Constitution; and includes an analysis of the decision of the district court and of certain 1egal.briefs submit ted to the Supreme Court on appeal. 2 THE CONSTITUTION, TEE COMMON DEFENSE, AND THE SEPARATION OF POWERS One of the major deficiencies of the Articles of Confedera tion was its provisions concerning war and military matters.

Thus, in Federalist 23 Hamilton , in urging the adoption of the proposed Constitution, explained that the three principal pur poses" of the proposed Constitutioq were the regulation of com merce, the conduct of foreign affairs, and "the common defence of the members.ll In Federalist 22, Hamilton called the Articles of Confederation a dangerous Ilsystem of imbecilityll with regard to its provisions concerning the army, stating that !!The power of raising armies, by the most obvious construction of the Articles of Confederation, is merely a power of making requisitions upon the states for quotas of men. This practice, in the course of the late war, was found replete with obstruction to a vigorous and to an economical system of defence."

Providing for the common defense, then, was to be a po wer of the national government under the new Constitution. Experience in the War of Independence and subsequent experience under the Articles of Confederation had demonstrated that the authority must be centralized instead of being divided among the state s.

What was necessary for this power to be effective The authori ties essential to the common defence are these: to raise armies to build and equip fleets; to prescribe rules for the government of both; to direct their operations; to provide for their supp ortll Federalist 23 Where should these authorities be located in the national government? The history of monarchies, where the whole authority over war and military matters was lodged in the king, was much in the minds of the Framers of the Constitution.

They decided to avoid the dangers of autocratic authority over the common defense by dividing control between the President and the Congress In England, for a long time after the Norman Conquest the aithority of the monarch was almost unlimited.

Inroads w ere gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Princ e of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledged preroga tive of the crown, Charles I1 had, by his own authority kept on foot in time of peace a bo d y of 5,000 regular troops. And this number James I1 increased to 30,000; who were paid out of his civil list. At the revolution to abolish the exercise of so dangerous an authority it became an article of the Bill of Rights then framed that "the raising o r keeping a standing army within the kingdom in time of peace, unless with the consent of Parliament, was against law Federalist 26 emphasis in original) 3 The President is to be commander-in-chief of the army and navy of the United States. In this respect h-s authority would be nominally the same with that of the king of Great Britain, but in substance much inferior to it. It would amount to nothing more than the supreme command qnd direction of the military and naval forces as first General and admiral of the Confederacy; while that of the British king extends to the declaring of war and to the ralsinq and regulating of fleets and armies, all which, by the Constitution under consi deration, would appertain to the legislature Federal ist 69 emphasis in orig i nal So, the necessary authorities over the common defense were to be national authorities deliberately divided between two of the three branches of the new constitutional government. The safeguard against the dangers of standing armies and the execu tive' s king-like use of them was to lodge the authority to raise and support armies and navies, and prescribe rules for their governance, in the Congress. The Framers made this congressional authority summary and comprehensive. The separation of powers was thor o ugh-going and strict, as can be seen from the Appendix As if the words of the Constitution were not clear enough, the Federalists explained the intentions of the Framers even more clearly These powers ought to exist without limitation no constitutional sh a ckles can wisely be imposed on the power which the care of it is committed. This power ought to be co-extensive with all the possible combina tions of such circumstances; and ought to be under the direction'of the same councils which are appointed over th e common defence there can be no limitation of that authority which is to provide for the defence and protection of the community Congress has an unlimited discretion to make requisitions of men and money; to govern the army and navy; to direct their opera t ions Who so likely to make suitable provisions for the public defence, as that body to-which the guardianship of the public safety is confided Federalist 23 The whole power of raising armies was lodged in the Legislature not in the Executive From a close e xami nation it will appear that restraints upon the discre tion of the legislature in respect to military establish ments in time of peace would be improper to be imposed Federalist 24) (emphasis in original I cases are likely to occur under our governmen t , as well as under those of other nations, which will some times render a military force in time of peace essential to the security of the society, and it is therefore improper in this respect to control the legislative discretion Federalist 25 4 The idea of restraining the legislative authority, in the means of providing for the national defense, is one of those refinements which owe their origin to a zeal for liberty more ardent than enlightened The patriots who effected that memorable revolution, were t o o temper ate, too well-intentioned, to think of any restraint on the legislative discretion when they referred the exercise of that power to the judgment of the legisla ture, they had arrived at the ultimate point of precau tion which was reconcilable wit h the safety of the community Federalist 26 The Congress was to provide for war, while the executive, as commander-in-chief, was to conduct the course of war. Neither the Framers nor the Federalists nor the plain words of the Consti tution itself contempla t ed a role for the judiciary in the exercise of this power. In Federalist 78, Hamilton stated that The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever.

It may truly be said to have neither force nor will, but merely judgment emphasis in orginal Nevertheless, Hamilton went on to say that "the interpreta tion of the laws is the proper and peculiar province of the cou rts,11 and that the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative en- of the modern notion that the federal judiciary was to have final right of revision over any and all laws, both those of Congress a nd of the states. roacbments These two passages have been often cited in defense But when should the judiciary exercise the Ilbulwark power against Itlegislative encroachments Federalist 78 indicates that it is to be an extraordinary power used in extraor d inary instances. Hamiltonls choice of words is instructive The judiciary must be on guard when the legislature passes laws inspired by Ifdangerous innovations a momentary inclination immediate mischiefs occasional ill humors in the society.I1 Even. in suc h cases the judges will be guided by the Constitution for "They ought .to regulate their decisions by the fundamental laws, rather than by those which are not fundamental It could hardly be maintained that providing for the common defense, being one of the three Ifprincipal purposes1' of the Constitution, and, by the explicit words of the Constitution being one of the fundamentally separated powers assigned to the unlimited discretion1I of Congress, is a matter of "dangerous innovation.i1 If cases or contro v ersies concerning military matters are referred to the Ilfundamental laws,Il the Constitution they will be decided in favor of Congress. As is shown in the Appendix, providing for the common defense is probably the foremost single subject matter of the Co nstitution with substantial provisions in Articles I, 11, 111, IV, and the Fifth and Fourteenth 5 Amendments. Of the eighteen clauses in Article I, no less than eight deal with Congress' power over the military, military affairs, and war.

Joseph Story, Sup reme Court justice and the first great commentator on the Constitution, remarked that And in many cases the decisions of the executive and legislative departments, thus made, become final and conclusive, being from their very nature and character incapabl e of revision Thus, Congress, having the power to declare war, to levy taxes, to appropriate money, to regulate intercourse and commerce with foreign nations, their mode of executing these powers can never become the subject of re-examination in any other tribunal Here (i.e., concerning the military) the power is exclusively confined to the legislative body to the representatives of the states, and of the people of the states.

United States, 1933, Sections 374, 1179 Commentary on the Constitution of the THE WAR POWER The Rostker challenge to the power of Congress Ifto raise and support armiesll Art. I, Sec. 8) necessarily includes a more comprehensive attack on the ability of t h e national government to wage war successfully. For this power, the "war powerll has always been regarded.by the Supreme Court as an aggregate of the specific (particularly Clauses 11-14 of Article I) constitutional grants of power over military affairs. Hamilton's statement in Federalist 23 listing together the various Itauthorities essential to the common defence" has already been quoted. In McCulloch v.

Maryland (1819), Chief Justice John Marshall referred to the power "to wage and conduct war1' as one of the I'enumerated powers 4.Wheat 316, 407 In Hamilton v. Dillin (1861), the Supreme Court upheld a Civil War act of Congress by referring to !'the war powersll without mentioning any specific clause of the-Constitution (21 wall. 73, 96 In Miller v. U.S: (1870), the Court again upheld war-related statutes of Congress and said that !#if, on the contrary, they i.e., the statutes) are an exercise of the war powers of the government, it is clear they are not affected by the restrictions imposed by the Fifth a n d Sixth AmendmentsIf (78 U.S. 268, 304-05 In the Selective Draft Law Cases (1917), the Court upheld conscrip tion by referring to several war provisions of Article I, not only to the power to raise and support armies (245 U.S. 366 In No. Pacific Rlwy. v. N orth Dakota, ex re1 Lanqer (1919), Chief Justice White called the war power Ilcomplete and undivided 250 U.S. 135, 149 In Lichter v. U.S. (1948), the Court collected together the Preamble; the necessary and proper clause: the clause for providing and main t aining navies; and the common defense, declaration of war, and commander-in-chief clauses and called them Ilprovisions implementing the Congress and the President with powers to meet the varied demands of war 334 U.S. 742 755 I In United States v. Curtis- W right Con 1936), the Court stated that this fundamental power is an attribute of the sove reignty of the nation itself It results that the investment of the Federal Government with the powers of external sovereignty did not depend upon the affirmative gra nts of the Constitution.

The power to declare and wage war, to conclude peace, to make treaties, to maintain diplomatic relations with other sovereign ties, if they had never been mentioned in the Constitution, would have vested in the Federal Government a s necessary concomitants of nationalityll (299 U.S. 304, 316, 318 In Hirabayashi v. U.S 1943), the Court defined the war power as "the power to wage war successfully 320 U.S. 81, 93 In Korematsu v. U.S 1944 the Court referred to the war power of Congress a nd the executive 323 U.S. 414 RAISING AND SUPPORTING ARMIES, PROVIDING AND MAINTAINING A NAVY Article I, Section Eight of the Constitution gives Congress the authority Itto raise and support armies provide and maintain a navy and to make rules for the gov e rnment and regulation of the land and naval forces.l# The plaintiff's suit in Rostker is of course, a direct challenge to these specific powers. As will be seen below, the Supreme Court, following the explicit words and the much-explained original intent o f the Constitution, has in the past, shown an almost total deference to Congress concern ing these powers In Tarblels Case (1871), the Supreme Court dismissed a state writ of habeas corpus for the discharge of a minor who enlisted in the army without his f ather's consent. The Court cited the supremacy of federal law saying that Now, among the powers assigned to the national govern ment, is the power to "raise and support armies, and the power "to provide for the government and regulation of the land and na v al forces1f It can determine without question from any state authority, how the armies shall be raised, whether by voluntary enlistment or forced draft, the age at which the soldier shall be received, and the period for which he shall be taken the compens a tion he shall be allowed, and the service to which he shall be assigned 80 U.S. 397, 408 In Street v. U.S 1890), the Court upheld an appropriations act of Congress reducing the size of the armed forces, saying that Full power of legislation in the matter o f increase and reduction of the army is with Congress1 133 U.S. 299, 307 In 7 Jacobson v. Massachusetts (1905), the Court, referring to the Privileges and Immunities Clause, dismissed a Fourteenth Amendment challenge to Massachusetts' vaccination law and s aid, inter alia The liberty secured by the Fourteenth Amendment, this Court has said, consists in part, in the right of a person 'to live and work where he will and yet he may be compelled, b'y force 'if need be, to take his place in the ranks of the army of his country I 197 U.S. 11, 29 In the Selective Draft Law Cases 1917), the Court dismissed a challenge to the conscription law based on a claim that state citizenship was primary when Article I was ratified, saying that The possession of authority to en a ct the statute must be found in the clauses of the Constitution giving Congress power to raise and support armies" (245 U.S 366, 377 In U.S. v. MacIntosh (1931), the Court dismissed a challenge to the federal naturalization law by a plaintiff who claimed t hat the law's requirement that a citizen be willing to bear arms violated the free speech clause [sic] of the First Amendment. The Court stated that, Whether any citizen shall be exempt from serving in the armed force of the Nation in time of war is depen d ent upon the will of Congress and not upon the scruples of the individual, except as Congress provides 283 U.S. 605, 623 MacIntosh was later overruled in Girouard v U.S 328 U.S. 61, (1931), but solely on the basis of statutory interpretation the MacIntosh Court's statement of the power of Congress not being in question In Lichter v. U.S. (1948 the Court, in upholding the Renegotiation Act, stated that Congress can affect property rights by way of the war power Both Acts (1.e.; Renegotiation and Selective S e rvice were a. form of mobilization. The language of the Constitution authorizing such measures is broad rather than restrictive. It says "Congress shall have power to raise and support armes This places eFphasis upon the supporting as well as upon the rai sing of armies.

The power of Congress as to both is inescapably express not merely implied The constitutionality of the conscription of manpower for military service is beyond question. The constitutional power of Congress to support the armed forces with equipment and supplies is no less clear and sweeping 334 U.S. 742, 755 In U.S. v. O'Brien (1967), the Court upheld provisions of the selective service law prohibiting the destruction of draft cards and overruled a court of appeals decision that permitted t he burning of a draft card as an exercise of free speech. The Court stated that "The .constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping The power of Congress to classi f y and conscript manpower for military service is beyond question 391 U.S. 367, 377 8 Because.the Supreme Court has always upheld the power of Congress to conscript manpower for the armed services, many challenges to the draft have gotten no farther than t h e federal circuit courts of appeal. Those courts have been just as emphatic as the highest court in their affirmation of Congress' discretion ary power over the raising of armed forces. For instance, in Warren v. U.S. (1949), the Tenth Circuit dismissed t h e First Amendment "free speech" claim of a man who had been convicted of counseling another to refuse to register for the draft, saying The constitutional power of Congress to raise armies necessarily connotes the like power to say who shall serve in them and in what way Who shall be exempt from service in the armed forces is dependent upon the will of Congress Congress has power to raise armies by conscription in time of peace as well as in time of war 177 F. 2nd 596, 599, cert. denied See also Clay v. U. S 397 F.2d 901 (1968); Breneman v. U.S., 138 F.2d 596 (1949 Bertelson v. Cooney 213 F.2d 275 (1954); Turner v. U.S 410 F.2d 275 (1969 E.S. v. Butler, 389 F.2d 172 (1968); U.S. v. Fallon 407 F.2d 621 (1969 TEE WAR POWER AND MILITARY MATTERS; JUDICIAL RECOGN I TION OF THE SEPARATION OF POWERS The Supreme Court has had many occasions to declare its own sense of self-restraint and deference to Congress and the President concerning the war powers. Additionally, the Court has ruled that other clauses of the Constit u tion must give way to these powers at certain times In the Prize Cases (1862), the Court declared that the Commander-in-Chief had broad authority during war to make deci sions about the disposition of enemy property and even to decide who was the enemy an d who was neutral because "this court must be governed by the decisions and acts of the Political Department of the government to which this power was entrusted 2 Black 635 670) 1 land that was done pursuant to Civil War statutes passed by In Miller v. U. S 1876), the Court upheld the seizure of Congress saying that Itif on the contrary, they (i-.e the sta tutes) are an exercise of the war powers of the government, it is clear that they are not affected by the restrictions imposed by the 5th and 6th amendme n ts1 78 U.S. 268, 304-5 In Hirabayashi v. U.S 1943), the World War I1 curfew order on JaDanese livinq in the United States was challenqed as a violahon of the fifth Amendment and as an unconstitutional delegation of legislative authority lenge, stating tha t The Court denied the chal Since the Constitution commits to the Executive and to Congress the exercise of the war power in all the vicissitudes and conditions of warfare Where, as they did here, the conditions call for the exercise of judgment and discre t ion and for the choice of means by 9 those branches of the Government on which the Constitu tion has placed the responsibility of war-making, it is not for any court to sit in review of the wisdom of their action or substitute its judgment for theiEs If i t was an appropriate exercise of the war power, its validity is not impaired because it has restricted the citizen's liberty 320 U.S. 81, 93, 99 In Johnson v. Eisentrager (1950 some non-resident aliens captured in World War I1 claimed that they ought to ha v e the protection of U.S. civil rights laws. The Court disagreed because Certainly, it is not the function of the Judiciary to entertain private litigation even by a citizen which challenges the legality, the wisdom, or the propriety of the Commander-in-Ch i ef in sending our armed forces abroad or to any particular region1 339 U.S.-763, 789). In Harisiades v. Shaugh;lessy (1952),-another case involving the civil rights of aliens, the Court declared that "It is pertinent to observe that any policy toward alie n s is vitally and intricately interwoven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republican form of government. Such matters are so exclusively entrusted to the political branches of the government as to be largely immune from judicial inquiry or interference 342 U.S. 580, 588-89 In U.S. ex re1 Toth v. Quarles (1955 the Court disallowed the bringing to military trial of a.discharged man and reprimanded the military for not attendin g to fighting saying that Wnlike courts, it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise 350 U.S. 11, 17 In Gilligan v. Morgan (1972 the Kent State case, a challenge was made to the authority of t he governor of Ohio over the National Guard. The Court replied at lenq It would be inappropriate for a district judge to undertake this responsibility (i.e., the day-to-day control of the military) in the unlikely event that he possessed requisite technic a l competence to do so It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsible as the Judicial Branch is not to the electoral pro c ess. Moreover, it is difficult to conceive of an ar-ea of governmental activi ty in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of the military forces are e s sentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches emphasis in original) (413 U.S. 1, 8, 10) 10 In Parker v. Levy (1974), the Court dismissed a challenge to the special statuL of the Uni f orm Code of Military Justice saying thatirFor the reasons which differentiate military society from civilian society, we think Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which th e former shall be governed than it is when prescribing rules for the latter 417 U.S. 733, 756).

In Schlesinger v. Ballard (1975), the Court upheld a gender-based distinction in the promotion of naval officers saying that "The responsibility for determining how best our Armed Forces shall attend to that business (i.e fighting) rests with Congress.

Article I, Section 8, Clauses 12-14, and with the President. See U.S. Constitution, Article 11, Section 2, Clause 1" (419 U.S 498, 510 And in Green v. Spock (1975 ), the Court did not agree with a First Amendment challenge to the regulation of an army base banning political speeches and demonstrations: "This Court over the years has on countless occasions recognized the special constitutional function of the milita r y in our national life, a function both explicit and indispensiblell (424 U.S. 828, 837 THE DISTRICT COURT'S DECISION IN ROSTKER* AND TIE GOVERNMENT'S APPEAL The special three-judge district court paid scant attention to the Constitution and the separatio n of powers, only once referring to any specific clause of the Constitution and likewise only once, in passing and then by way of refutati.on mention ing that, "Ordinarily, deference is due to congressional and executive decisions in military matters. II I n stead, the court maintained that !'the issue before us is whether exclusion of women is substantially related to an important government function" (p. 20 for "we need only decide if there fs a substantial relationship between the exclusion of women and t& raising of effective armed forcesll (p. 22 In order to resolve these issues, the court pursued two lines of reasoning.

First, the court had to decide what standard it would use in considering the issues. The standard selected by the court was not the sepa ration of powers, the power of Congress to raise and support armies, or even the Fifth Amendment itself. Instead the court sifted through the judicially-invented and now-prevailing standards of deciding constitutional cases, namely, the familiar llreasona b le relationship test suspect classifications, the Ilcompelling government interest test, II and the "important govern ment test finally declaring that the last would be the standard for the case at hand, a case of sex discrimination kU.S. District Court f o r the Eastern District of Pennsylvania; Opinion of the Court Number 71-1480; July 18, 1980; Judges lYax Rosenn, Joseph S. Lord 111, Edward N. Cahn. Judge Cahn wrote the opinion for a unanimous court 11 Apparently, the challenge to the male-only registrati o n was originally based on the allegation that such reg ration violated the Due Process Clause of the Fifth Amendment, that amendment having to be selected because the statute concerned was a federal statute. Nevertheless, the case seems to be and the cour t mentioned it in passing, one of "equal protection But the Equal Protection Clause resides not in the Fifth Amendment, but in the Fourteenth, the amendment to the Constitution that deals with prohibitions on state action, not federal action. Long ago the S upreme Court "incorporatedll the Bill of Rights into the Fourteenth Amendment in order to be able to apply the sanctions of the Bill of Rights against the states. The case at hand is an example of how the Fourteenth Amendment has been re-incorporated into the Fifth Amendment, thereby making the Equal Protection Clause a kind of judicially-imposed addendum to the Fifth Amend mentl's Due Process Clause and allowing courts to impose the sanctions of the Equal Protection Clause against Congress.

That the prese nt case could present a fundamental question of the separation of powers between the Congress and the judiciary concerning the war power was summarily dismissed by the district court when.it said that "the test to apply in determining if gender-based disc r imination is constitutional should not vary from one factual context to another. The standard is a constant If any judicial deference is due the Congress it should be extend ed in the determination of whether the standard is met, not in the definition of w hat the standard is p. 19 In so stating the court rather explicitly repudiated the assertion of the Supreme Court in Hikabayasbi, supra, where the high Court warned that, concerning the exercise of the war power, Itit is not for any court to sit in review of the wisdom of their action (i.e the President's and the Congress I or substitute its judgment for theirs. It In deciding to substitute its judgment for that of Congress the court scrutinized the legislative history of the congressional act requiring th e male registration and came to two conclusions.

First, it refuted the findings of fact that the relevant congres sional committees had published as the justificaton of the congres sional action. Thus, the following statements of Congress were found by the district court to be only llsuperficially appealing p. 29), Ilincongruousll and Ilinconsistentl' when compared to other acts of Congress concerning women in the military (p. 39), and not substantially related to any alleged government interest p. 41 The c ommittee feels strongly that it is not in the best interest of out national defense to register women Senate Report 96-226 There are military reasons that preclude very large numbers of women from serving. Ibid 12 Registering women for assignmen, to comba t or assigning women to combat positions in peacetime then would leave the actual performance of sexually mixed units in an experiment to be conducted in war with unknown risk a risk that the committee finds militarily unwarranted and dangerous. Ibid Artic l e I, Section 8 of the Constitution commits exclusive ly to Congress the powers to raise and support armies Report of the Subcommittee on Manpower and Personnel There is no military need to include women in a selective service system. Ibid A registration a n d induction system which excludes women is constitutional. Ibid Instead of these judgments of Congress, the district court decided to affirm the judgments of the President, the Department of Defense, and the Joint Chiefs of Staff, all of whom had testi fi e d for the registration of women but whose arguments had been rejected by Congress. So, it can be seen that the court effected four substitutions of judgment. First, it substituted its own judgment for that of Congress. Secondly, it substituted the judgmen t of the President for that of Congress as if the President in addition to being Commander-in-Chief, had some part of the power to raise and support armies. Third, it substituted the judgment of the Department of Defense for that of Congress as if that dep a rtment, in addition to bearing the responsibility of fighting, had the power to provide for the common defense. And fourth, it substituted the judgment of the Joint Chiefs of Staff for that of Congress as if Clause 14 of Article'I provided that the armed f orces shall make rules Itfor the government and regula tion" of the Congress The government s hef (by Solicitor General Wade H. McCree Jr seeks to refute the decision of the district court in two ways. First, the government argues that Article I, Section 8 is relevant to the case at hand and that the Supreme Court should pay substantial attention to it. Quoting MacIntosh, the govern ment contends that, IIBecause the war powers are textually commit ted to Congress, they necessarily confer plenary authority t o say who shall serve and in what wayf1 p. 10 For that reason lit would be inappropriate for a district court to adopt a standard of review that permitted it to substitute its judgment for that of Congressit (p. 10 Pursuant to its Article I powers, Congre s s made Ita sensitive policy choice whose resolution in a democracy is best left to the legislaturell (p. 10 Secondly, the government argues that the judgment of Congress was indeed "closely and substantially related to an important purpose p. 12), that pu rpose being no less than providing Iffor a military emergency with maximum speed and efficiency p. 12).

Furthermore, the district court erred in considering llregistration 13 in isolation and failed to regard it as the first step in the conscription proces s1 p 13 THE BRIEF OF THE PLAINTIFFS/APPELLEES1 AND THAT OF THE NATIONAL ORGANIZATION OF WOMEN2 The brief for the plaintiffs/appellees argues that since this is a sex-discrimination case" (p. 7 the government has the "burden of demonstrating a close and su b stantial relationship between the gender classification and an important purpose actual ly contemplated by the statute p. 5 Any claims of deference due Congress because of Article I, Section 8, must fall to the claims of what the brief, like the decision o f the district court, vaguely refers to as "Due Process/Equal Protection p 18 At any rate the case is only of "tangential military charac ter" (p. 5 Finally, IIAdoption of Appellant's position would result in a dangerous and open-ended position. If the po w er to raise armies or to wage war justifies a lower standard of review for gender classifications it would justify a lower standard for racial classifications as well. Even a registration law excluding blacks might be permissible on the ground that minori t ies are already over-represented in the armed forces, thus making it unnecessary to draft them and 'rational' not tot1 (p. 17 The brief of the National Organization of Women (NOW amicus curiae on behalf of the plaintiffs, concedes that the case involves t h e constitutionality of the male-only registration and whether such a registration Ilviolates the fifth amendment to the United States Constitution1 p. 2 What clause of the Fifth Amendment is'supposed to have been violated is never mentioned nor is any cla use of Article I ever mentioned, nor is any clause at all of the Constitution ever cited again, except for footnote references to the Fourteenth and Twenty-Sixth Amendments.

Instead, NOW primarily bases its llconstitutionaltl arguments on no less than seve nty-two sociological, psychological, socio psychological, psycho-sociological, economic, historical, and feminist 'treatises, books research papers, studies, and articles including one from Sports Illustrated simplei1 (p. 4 Presumably, this statement is t he justification To NOW, the case is one of Itsex discrimination, pure and Filed arch 2, 19

81. Donald Weinberg, counsel of record, joined by the American Civil Liberties Union, and Lawrence Tribe, professor of constitu tional law at Harvard University. Th e ACLU has long been involved in suits challenging the constitutionality of conscription J. Hart, Phyllis H. Ain, and the NOW Legal Defense and.Education Fund Filed ?larch 2, 19

81. Attorneys Barbara Brown, Solamn G. Lippnian, Thomas 14 for the complete i gnoring of Article I and the war powers of Congress NOW proffers the same argument as the district court: the judgment of Congress was wrong and should be substituted. The exclusion of women 'fdisservesll military readiness for, inter alia Women are bette r students than men, therefore, better I soldiers p. 6 Strength is not a reasonable justification for excluding women because IfA person trained in the martial arts can defeat a larger opponent.Il (p. 7 reason for excluding women because some women are ste r ile others do not want children, and others can defer children Po 9 The "child-bearing poterltial'f of women is not a good The alleged "sensitive nature" of women is a canard pp. 9-10 Other fears expressed by opponents of registering wornen bear a strikin g resemblance to the apprehensions that preceded racial integration in the military.It (p. 10 usually unofficially or disguised as men p. 15 I Women have, in the past served in combat roles Ifbut The exclusion of women If reinforces deeply-held stereotypes t f and consigns them to Ilsecond-class citizenship.It The effects of excluding women are Women are disrespected for their Inon-male' characteris tics and resented for what is perceived as their 'easy time. If (P* 20 It increases the liklihood that women wi l l be raped p 20 1 It decreases the liklihood that women will be elected to public office p. 24 It prevents women jobs in civilian 1 vocational and pro 27 1 from getting highly-paid, highly ife because Ifthe military is our fessional training institution S 1 killed argest P Overall, the judgment of Congress was made from a perspective of "never-never land p. 17 The Supreme Court should "see people as individualsll (p. 28) in order to prevent stereotyping because "Stereotypes are reinforced by psychological processes that distort reality and then create expectations that influence behavior to fit the distortionit (p. 18).

CONCLUSION 15 The several cases cited above have demonstrated that the Supreme Court has often agreed with the Federalists about the constitutional existence of an aggregate war power The problems in distinguishing between individual grants of power concerning war t hat most extraordinary and important governmental act seem obvious: Is it not true that the power to I1declarei1 war implies the power to IIwageII war? When do IIraisingIl and IIprovidingII end and 'IsupportingII and llmaintaininglt begin? When do I'suppo r tingll and IImaintainingII end, and when does government and regulation of the land and naval forcesII begin? Is it not true that Ilprovid ing for the common defense" necessarily means the power to prepare for war? Should not the war power be, as Federali st 23 argues co-extensive with all the possible combinations-of such circum stances Is not a military force in time of peace IIessentia1,lI as Federalist 25 maintains, Itto the security of the society1!?

Hamilton maintained that the preparation for and conduct of war was one of the three llprincipalll purposes of the Constitution.

Just as important was the constitutional decision to lodge this power in 'the Congress, for the legislative branch was -the proper I'ultimate point of precaution1# both of the re sponsibility for and the dangers of military force. In the past, the Supreme Court has acknowledged that this fundamental separation of powers is inescapably express1# and has upheld this authority of Congress against challenges based on Article I; the Fi rst, Fifth, Sixth,.

Thirteenth and Fourteenth Amendments; and on such bedrock princi ples of law as habeas corpus, civil rights, and property rights Since there is no war at present, Rostker is a direct chal lenge to 'the ability of Congress to prepare for war and, therefore is attack on the-specific congressional powers "to raise II to provide I' and "to make rules Solicitor General Wade McCree argues that registration must be considered the first step in the process of conscription. The Supreme Court has always upheld the power of Congress to conscript troops, but the Court has never had the occasion to consider the constitutionality of conscription in peacetime It would seem that if, according to Jacobsen, supra, Congress has the poGer to llcompelll a ma n "to take his place in the ranks of: the army of his country,I# Congress has the equal power to compel him (or her not to take his (or her) place in the ranks of the army The decision of the district court and the briefs of the plantiffs/appellees and of N OW are instructive examples of the current state of constitutional law. Today, the clauses of the Constitution providing for "rights, especially the rights in the First, Fifth, and Fourteenth Amendments, reign supreme; while the clauses of the Constitutio n providing for the llpowersI1 of govern ment, the first six Articles, are relegated to inferior status or, as the district court's decision and the two briefs evidence are almost ignored 16 Additionally, the Supreme Court has transmogrified the constituti o nal rights themselves into generalities. Originally the rights were closely associated with governmental powers and with federalism, the Bill of Rights being a collection of restric tions against the powers of the national government and the Fourteenth Am e ndment being a restriction against the powers of the state governments. But, today, according to numerous decisions of the Court, the Fourteenth Amendment has swallowed up the Bill of Rights with the result that the Bill of Rights is now applic able to ac t s of the states. In the present case, the plantiffs appellees and amici, basing their claims on other decisions of the Court, maintain that the Due Process Clause of the Fifth Amendment has turned on the Fourteenth Amendment and swallowed the Equal Protec t ion Clause. The inevitable effect of this kind of logic has been the severing of even the rights themselves from the Constitution In Rostker, the appellees and amici ask the Court to make a decision based on some kind of vague, general standard of Ifconst i tutionality. If tutionalityll of governmental acts relating to civil rights, the Supreme Court has invented its own specific standards, e.g strict scrutiny of such acts. But the arguments presented in the case at hand seem to indicate that the boundaries o f even those standards are beginning to dissolve. Thus, the briefs of the Dlaintiffs/aDDellees NOW, and the decision of the district Nevertheless, in order to decide cases regarding the 'Iconsti court, while payiig almost no- attention to Article I Sectio n 8 and scant attention to either the Due Process Clause .of the Fifth Amendment or the Equal Protection Clause of the Fourteenth Amend ment, discuss at great length, inter alia, the distinctions among If strict scrutiny Ilpermis s ible government purpose heightened scrutinyIf important government interest If intermediate scrutinyll "important. government ob] ectives"

Ifminimal scrutinyIf If proper government purpose suspect classifications If "proper government function"

Ilrational basis" Ilcompelling state interest"

Ifminimally rational basis" substantial relationshipif Ifreasonable relationship test If close and substantial relationship Even these standards play a minor role in the brief of the National Organization of Women. In basing most of its argum ents on the social sciences, NOW presents a prime example of the behaviorist view of constituti.ona1 law. The Court has often, in the modern era, accepted the testimony of the social sciences 17 when dealing with various issues of social policy. The most f amous examples of this are the school busing cases of the late 1960s and'early 1970s in which the 1968 Coleman report on school segregation was cited with approval again and again by the courts as justification for the imposition of the "remedy" of school busing. Equally famous has been'ColemanIs repudiation in 1978 of his own 1968 study. But the damage has been done, and busing is a fact of life for school districts across the,country.

As has been mentioned, both the plaintiffs/appellees and NOW offer the accusation that the rationale for excluding women from registration must, perforce, be the same as the rationale for excluding blacks In using that argument, the briefs ask the Supreme Court to regard sex discrimination as a "suspect classifi cation" (i. e ., invalid by presumption while the Court has clearly ruled that almost all racial classifications are Itsuspect It it so far has deliberately refused to apply the same standard to all sex classifications. If the Court elevates sex discrimination to that level, especially in a case repudiating such a Itprincipallt constitutional doctrine as Congress' separated power over the military, then it will have ruled that no constitutional standard is more important.

Thomas R. Ascik Policy Analyst APPENDIX CONSTITU TIONAL CLAUSES CONCERNING WAR, THE MILITARY AND MILITARY XFFAIRS Article I, Section 8 The Congress shall have power to p rovide for common defense To declare war, grant letters of marque and reprisal, and make rules To raise and support armies To provide a nd maintain a navy To make rules for the government and regulation of the land and naval forces To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions To provide for organizing, arming, and di s ciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the apppointment of the officers, and the authority of training the militia according to the discipli n e prescribed by Congress To exercise exclusive legislation in all cases whatsoever and to exer cise like authority over all places purchased by the consent.of the legislature of the state in which the same shall be, for the erection of forts, magazines, a r senals, dockyards, and other needful buildings concerning captures of land and water Article I, Section 9 The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it Art i cle I, Section 10 No state shall grant letters of marque and reprisal No state shall, without the consent of Congress keep troops, or ships of war in time of peace or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay.

Article 11, Section 2 The president shall be commander in chief of the army and navy of the United States, and of the militia of the several States, when called into actual service of' the United States.

Article 11, Section 3 He shall commission al l the officers of the United States Article 111, Section 3 I i Treason against the United States, shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort. The Congress shall have power to declare the pu n ishment for treason A- 2 Article IV, Section 4 The United States shall protect each (i.e the states) against invasion 5th Amendment No person shall be held to answer for a capital or other infamous crime unless on a presentment or indictment of a Grand Ju r y, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger 14th Amendment, Section 3 No person shall be a Senator or Representative of Congress, or elector of President or Vice Preside n t, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or jud icial officer of any State, to support the Constitution of the United States, shall have engaged in insurrec tion or rebellion against the same, or given aid or comfort to the enemies thereof disability.

But Congress may by two-thirds vote of each House, r emove such 14th Amendment, Section 4 The validity of the public debt of the United States, authorized by law including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But n either the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims sh all be held illegal and void.


Thomas R.

Senior Visiting Fellow