The Biden administration has asked the Supreme Court to let Congress resolve the potential constitutional problem of a male-only draft.
President Joe Biden’s Acting Solicitor General Elizabeth Prelogar filed a legal brief Wednesday in a case that is challenging whether the current male-only Selective Service System, which requires only that men ages 18 to 25 register for a potential military draft, is unconstitutional.
In the brief, Prelogar said that since Congress is considering requiring women to sign up as well, the high court should let the legislative branch resolve the question.
“Congress’s attention to the question may soon eliminate any need for the court to grapple with that constitutional question,” she wrote.
Former NSA director, retired top officers ask Supreme Court to declare military draft unconstitutional
The case could upend the Selective Service System.
The American Civil Liberties Union, representing the National Coalition for Men, filed the current petition on Jan. 8, after a lower court previously ruled to declare the draft unconstitutional for not including women.
Prelogar’s brief does not argue that the draft should include women.
ACLU Women’s Rights Project Director Ria Tabacco Mar told the Washington Post that the brief revealed some of the Biden Administration’s thinking on the issue.
“Noticeably absent from the government’s brief is any argument that men-only registration is constitutional,” Mar told the Post. “That is not surprising given that men-only registration is outdated, based on gender stereotypes, and no longer recommended by the military itself.”
In February former National Security Agency Director Michael Hayden, retired Army Gen. Stanley McChrystal and eight other prominent retired general and flag officers signed on in support of the ACLU’s petition.
The ACLU argues that the high court should overturn a 1981 ruling when the same challenge was made.
In that case, Rostker v Goldberg, the justices ruled that the draft was constitutional because its main function was to ensure combat-ready forces for the defense of the nation. Women were excluded from combat roles at that time.
The combat ban was officially lifted in 2013.
If the Supreme Court sides with the ACLU and overturns the previous ruling, it wouldn’t instantly open the draft to women.
Congress would still likely have the final say in how to change the Selective Service System.
The ACLU’s filing offers options for Congress, including extending selective service registration to women, eliminating the registration requirement, which would effectively abolish the draft or designing a new system for military readiness.
Legislative proposals on the issue in recent years, including part of the 2016 defense spending bill, have stalled out in Congress over worries over traditional family roles for women and the viability of the Selective Service System itself.
The system costs about $23 million a year and studies been critical as to whether it would be effective if officials needed it to conduct a draft.
Legislation dubbed the “Selective Service Repeal Act,” reintroduced in April, has called for abolishing the Selective Service System entirely.
“The Selective Service has far outlived its expiration date, wasting millions of taxpayer dollars per year to prepare for a draft is no longer relevant to our military,” said Sen. Ron Wyden, D-Oregon.
In early 2020, a report by the National Commission on Military, National and Public Service recommended that women register for future military drafts.
The report pointed to a 2016 Pentagon assessment, which showed only about a third of those aged 17 to 24 would be eligible to serve, roughly half of them women.
Some of the report’s recommendations could be tied to this year’s annual defense spending bill by this fall, Military Times reported.
That timing is part of Prelogar’s argument, to give Congress the time to make changes.