Former IRS Agents Question Whether the Draft is Constitutional

[WSJ_law_blog]

Our 18th birthday was a while ago, so we don’t remember filling out a draft registration card. But we guess we must have; at least we hope we did. The Military Selective Service Act requires men to register within 30 days of their 18th birthday, with late registration available until the applicant reaches age 26. In 36 states and Washington, D.C., registration is linked to the application for a driver’s license or a state identification card.

But, if you’re a government employee, registration is also linked to employment. The statute says a failure to register that is willful or knowing makes a person ineligible for appointment to a position in an executive agency.

But two men who worked at the IRS were terminated, without a trial, after it was discovered that neither had registered for the draft. Both are challenging their terminations in court — along with two other terminated government employees — claiming, first, that the selective service system violates equal protection because it affects only males, and, second, that the system is a bill of attainder because it imposes punishment without a right to a trial. Here’s the story, courtesy of the NLJ.

“It is a crime not to register with Selective Service, guys who don’t register could be tried and punished, but this is an end run around that,” says Harvey Schwartz, of Rodgers, Powers & Schwartz, the plaintiffs’ lawyer. “This is imposing the punishment without the trial.”

But David Sanford, an employment lawyer who isn’t involved in the case, told the NLJ he believes it will be “very difficult if not impossible” to win on equal protection grounds because a 1981 SCOTUS case — Rostker v. Goldberg — “squarely held that women who were excluded from combat service by statute and were not similarly situated for purposes of a draft or registration for a draft.” Rather, said Sanford, using the language of the statute to challenge the terminations might be an easier route because it doesn’t specifically state that violation of the law provides grounds for termination.

The U.S. Attorney’s Office for Massachusetts is handling the case for the government. In its memo supporting its motion to dismiss, the government reportedly cited the Rostker case and a a 1984 SCOTUS case — Selective Service System v. Minnesota Public Interest Research Group — which held that a law barring men who failed to register from receiving financial aid is not a bill of attainder.

What do you think, LB Readers? Should the draft be limited to men? And does the Act seem to constitute an unconstitutional bill of attainder?