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By: Kaitlin Sandin, Columnist
While an amendment to the 2017 National Defense Authorization Act (NDAA) that bans a particular bird from being designated an endangered species has garnered more controversy and criticism, another amendment with far wider ramifications has quietly passed in the Senate. If enacted by both chambers of Congress, women would be required to register for the draft for the first time. Bipartisan congressional support, limited opposition, and the support of the services suggest that the measure may become law. Even if this push to include women in the draft fails, legal precedent indicates that the exclusion of women is on its way out.
Currently, only men aged 18-26 are required to register for the draft, more formally known as the Selective Service. Failure to register results in a variety of consequences, from the denial of federal financial aid and security clearances, to hefty fines and jail time. Women are not required to register for the Selective Service and thus cannot be legally drafted under current law.
The 2017 NDAA may change that. Section 591 of the Senate version of the bill (S.2943) would require women who will turn 18 years old on or after January 1, 2018, to register for the Selective Service.[i] The bill passed the Senate 85-13 in June and garnered the support of every female senator on the Senate Armed Services Committee, which includes three Republican women and four Democratic women.[ii]
However, some House Republicans are attempting to subvert their efforts. In April, Representative Duncan Hunter (R-CA) offered a “gotcha” amendment that would require women to register for the draft—not because he supported it, but because he wanted to force Committee members who support women in combat to go on record; a view he and his conservatives allies believe is inappropriate social engineering.[iii] To Rep. Hunter’s surprise, his amendment passed the House Armed Services Committee 32-30, before being removed from the final version of the House NDAA by a procedural move.[iv] Instead, Section 528 of H.R. 4909, the House’s version, would require “a detailed review and report on the Selective Service System including its benefits and viability, as well as an analysis of potential DOD manpower needs in the event of an emergency requiring mass mobilization.”[v] Additionally, in July, the House voted 217-203 to add an amendment to a financial services bill that would bar the Selective Service from spending any funding on changing registration requirements.[vi]
However, Rep. Hunter and his allies in the House are likely fighting a losing battle. In addition to the support of a majority of Democrats, the measure has the support of influential Republicans including Senator John McCain (R-AZ) and Majority Leader Mitch McConnell (R-KY).[vii] It also has the support of the military; Army Chief of Staff General Mark Milley, Marine Corps Commandant General Robert Neller, and Navy Secretary Ray Mabus all spoke in favor of including women in the draft during a February 2 hearing of the Senate Armed Services Committee.[viii] The four female combat veterans in Congress, Representatives Tammy Duckworth (D-IL), Tulsi Gabbard (D-HI), Martha McSally (R-AZ), and Senator Joni Ernst (R-IA) are also strongly in support of the measure.[ix]
Even if House Republicans are successful in stripping the draft language from the reconciled NDAA, the courts may act as a deus ex machina.[x] The exclusion of women from the draft has long been justified rhetorically and legally by the ban on women in combat positions, which was lifted when Secretary of Defense Ash Carter opened all military occupations to women in January 2016.[xi] The last time the exclusion of women from the draft was seriously debated in 1980, the Supreme Court upheld the law 6-3 in Rostker v. Goldberg, on the grounds that women could not be compelled to serve while they were still barred from serving in combat-related positions. Writing for the majority, then-Associate Justice William Rehnquist wrote, “The fact that Congress and the Executive have decided that women should not serve in combat fully justifies Congress in not authorizing their registration, since the purpose of registration is to develop a pool of potential combat troops.”[xii] Now that combat positions are open to women, the Supreme Court’s justification for upholding the exclusion of women from registering for the Selective Service has been rendered moot.
Two recent lawsuits have already started to make their way through the courts and may eventually end up before the Supreme Court. On February 19, 2016, the Ninth Circuit Court of Appeals ruled in favor of the National Coalition for Men, who challenged the exclusion of women from the draft on the grounds that it is a violation of equal protection.[xiii] The case is now pending in district court for reconsideration. In New Jersey, a 17-year-old girl is suing for the right to legally register for the Selective Service. Her case, Kyle v. Selective Service, is pending in a New Jersey district court.[xiv] While it is always a precarious business to predict Supreme Court decisions, it is difficult to imagine that the Court would uphold the exclusion of women from the draft if certiorari is granted in these cases or another related case, given that their previous narrow legal reasoning is now obsolete.[xv]
Though further debate over the NDAA will likely be punted until December, the 2016 presidential election may not have much of an effect on the outcome.[xvi] Secretary Clinton publicly supports including women in the draft, while Mr. Trump, who has not commented on women and the draft specifically, has said that he supports women serving in combat roles.[xvii] With the support of Democrats, high-ranking Republicans, female veterans in Congress, the services chiefs, and the explicit or tepid support (or at least the seeming lack of opposition) of both the Democratic and Republican nominees for president, combined with a weak Supreme Court precedent, the draft’s days as an exclusively male institution appear to be numbered.
[i] Kristy N. Kamarck et al., FY2017 National Defense Authorization Act: Selected Military Personnel Issues, R44577, (Congressional Research Service: Washington DC, 2016,) http://www.fas.org/sgp/crs/natsec/R44577.pdf.
[ii] Jennifer Steinhauer, “Senate Votes to Require Women to Register for the Draft,” The New York Times, June 14, 2016, http://www.nytimes.com/2016/06/15/us/politics/congress-women-military-draft.html.
[iii] Connor O’Brien, House panel backs ‘gotcha’ amendment to make women eligible for draft,” POLITICO, April 28, 2016, http://www.politico.com/story/2016/04/women-eligible-draft-house-222571.
[iv] Steinhauer, “Senate Votes to Require Women to Register for the Draft,” The New York Times; O’Brien, “House panel backs ‘gotcha’ amendment,” POLITICO.
[v] Kamarck, “FY2017 National Defense Authorization Act: Selected Military Personnel Issues,” Congressional Research Service.
[vi] Richard Lardner, “House Approves Measure to Bar Women from Draft Registration,” Associated Press, July 6, 2016, http://bigstory.ap.org/article/5ea60cdf79684cb89f846a6d1b71423e/house-approves-measure-bar-women-draft-registration.
[vii] Steinhauer, “Senate Votes to Require Women to Register for the Draft,” The New York Times.
[viii] Hope Hodge Seck, “Bill Requiring Women to Register for the Draft Passes Senate,” Military.com, June 16, 2016, http://www.military.com/daily-news/2016/06/16/bill-requiring-women-to-register-for-the-draft-passes-senate.html.
[ix] Karoun Demirjian, “Congress’s four female combat veterans are speaking up on military issues,” The Washington Post, August 2, 2016, https://www.washingtonpost.com/news/powerpost/wp/2016/08/02/congresss-four-female-combat-veterans-are-speaking-up-on-military-issues/.
[x] Deus ex machina is a literary term that refers to a god-like figure that suddenly appears to resolve a seemingly intractable problem.
[xi] Cheryl Pellerin, “Carter Opens All Military Occupations, Positions to Women,” U.S. Department of Defense, December 3, 2015, http://www.defense.gov/News/Article/Article/632536/carter-opens-all-military-occupations-positions-to-women.
[xii] United States Supreme Court, “Rostker v. Goldberg,” June 25, 1981, https://www.law.cornell.edu/supremecourt/text/453/57#writing-USSC_CR_0453_0057_ZO.
[xiii] United States Court of Appeals for the Ninth Circuit, “NATIONAL COALITION FOR MEN V. SELECTIVE SERVICE SYSTEM, No. 13-56690 (9th Cir. 2016),” February 19, 2016, http://law.justia.com/cases/federal/appellate-courts/ca9/13-56690/13-56690-2016-02-19.html.
[xiv] “KYLE v. SELECTIVE SERVICE SYSTEM et al,” PacerMonitor, September 22, 2016, https://www.pacermonitor.com/public/case/8655392/KYLE_v_SELECTIVE_SERVICE_SYSTEM_et_al.
[xv] A grant of certiorari is the legal vehicle by which the Supreme Court agrees to hear a case. Certiorari is granted when four of the nine justices agreed to review a case. Of the 7,000-8,000 requests for certiorari submitted to the Supreme Court every year, only about 80 are granted.
[xvi] Colin Clark, “NDAA For Xmas, Says HASC Ranking Smith; Off Flies Sage Grouse!” Breaking Defense, September 22, 2016, http://breakingdefense.com/2016/09/ndaa-for-xmas-says-hasc-ranking-smith-off-flies-sage-grouse/.
[xvii] Louis Nelson, “Clinton: I support women registering for the draft,” POLITICO, June 15, 2016, http://www.politico.com/story/2016/06/hillary-clinton-women-draft-register-224390;
“Trump does about face on women in military,” Conservative Review, February 16, 2016, https://www.conservativereview.com/commentary/2016/02/donald-trump-does-about-face-on-women-in-combat.