The Trump administration is appealing a federal court ruling from earlier this year that found that the Selective Service registration is unconstitutional, a move that would defend the male-only military draft.
The Justice Department argues that ordering women to register for the draft is “particularly problematic,” as it would “impose draft registration on all eligible American women by judicial fiat before Congress has considered how to address the matter,” according to an opposition filed Monday.
The Selective Service System requires that all men register with the agency within 30 days of their 18th birthday, while women are forbidden from doing so, an issue that has been debated since the 1980s.
But after a lawsuit by the National Coalition for Men — an organization that describes itself as seeking to raise “awareness about the ways sex discrimination affects men and boys” — a federal judge in Texas in February ruled that the all-male military draft is unconstitutional.
U.S. District Judge Gray Miller of the Southern District of Texas wrote in an opinion that the “time has passed” to discuss the place of women in the military. In his ruling, however, he did not require Selective Service to change its system.
The two male plaintiffs in the National Coalition for Men case — who argued that their chances to be sent into a war are increased because females are excluded from the draft — now want the judge to expand his ruling with an injunction and either force women to register for the draft or throw out mandatory registration altogether.
The Justice Department, however, argues that it is one thing for a court to declare the draft registration unconstitutional and then allow Congress and military officials to decide how to revise the law, “and quite another for a court to decide what change in policy should be adopted without any involvement by the political branches and the military.”
“If the Court’s declaratory judgment is upheld, it should be left to Congress, in consultation with the Executive Branch and military officials, to determine how to revise the registration system in response,” writes Justice Department lawyer Michael Gerardi.
The alternative demand to get rid of the draft, meanwhile, “would be improper,” as it would be “potentially compromising the country’s readiness to respond to a military crisis,” Gerardi adds.
When President Carter restored draft registration in 1980, he asked Congress to include women, but lawmakers would not.
The issue came up again in 1983 when the Supreme Court ruled that an all-male draft was constitutional, as only men were able to serve in combat roles. In late 2015, the Obama administration ordered the military to open all positions to women, reopening the possibility of including women in the draft.