I've been saying for quite a while that it is entirely likely that women between 18 and 26 years old will be required to register for the draft in the near future. I predict that this will happen either as a result of preemptive Congressional caving or as a result of SCOTUS meddling, based on earlier precedents. My recommendation in that case is that traditional young women follow the requirement to register (as most pacifists do) but at the same time prepare in an explicit way (and write on their registration card that they are so preparing) to apply for conscientious objector status on the basis of their sincere gender-role beliefs in the event that they are actually called up to be drafted.
In response to the rumblings in Washington about women and the draft, three different congressional responses have emerged. Herewith a brief discussion of each of them and a suggestion of a fourth response that should be on the table but for some reason isn't so far.
I will move quickly past Duncan Hunter's and Ryan Zinke's poison pill bill that actually requires women to register for the draft. Hunter and Zinke have been explicit that it is a poison pill. They claim that they are trying to get Congress to talk about women in combat, and they're clearly against women in combat. Well, why just talk? What is the goal? Is the goal to get Congress to get involved and take women out of combat? Why not make that the bill, then? If the goal is just to get Congress to shake a finger at the DoD about putting women in full combat, what good will that do? Not only does this law violate the principle of "Vulcans never bluff," it also has the potential to backfire, as I'm sure there are plenty of people in Congress who would vote for it. Just say what you mean and mean what you say, Reps. Hunter and Zinke. This is not a fruitful approach.
The next attempt is by Mike Lee. His proposed bill would (so reports tell us) explicitly reiterate that only men are required to register for the draft. It would also allegedly "assert that the Constitution gives Congress the exclusive power to legally define who is required to register with the Selective Service." Well, that's nice, but generally Congress doesn't just say, "Nyah, nyah, Supreme Court, you can't say anything about this" and expect the court to back off! Is Lee proposing language in the bill that would attempt to strip jurisdiction from all federal courts on this issue per Article I and Article III of the Constitution? Would that work? What say my con law geek readers?
Lee's bill is certainly worth considering and much better than nothing. If it would work to block women's being required to register for the draft, good for Lee, and I hope he succeeds. I would just note, however, that apparently the bill leaves untouched the issue of women in combat and continues to leave that up to the developing sensibilities of various DoD inhabitants. It also leaves in place the "unequal" requirement of men's registration for the draft. With women allowed in combat and men differentially required to register, the bill leaves in place the entire rationale that would otherwise be used by the courts to require women to register for the draft. Its success, therefore, depends entirely on the constitutional question of whether the bill can actually stop SCOTUS from interfering in this matter.
The third response has been the bipartisan introduction of a bill to eliminate draft registration for everyone. As a general matter of policy, this may be a perfectly fine idea. There is something rather odd about decade after decade in which young men are required under dire penalties to acquiesce in having their names put into a draft registration database, while everyone "just knows" that it would be tremendously unpopular actually to use that database and everyone counts on its not being used. It begins to look like invasion of privacy for its own sake--a kind of meaningless and outdated gesture.
As an approach to the potential of drafting women, this response has both good points and bad. It is certainly a simple fix for the time being to the problem of women and draft registration, since it eliminates draft registration for everyone. At that point, the court's involvement would become moot, since there would be no more facial inequality between the treatment of men and women in draft registration. It does not raise the constitutional questions raised by Mike Lee's bill. If it passed, it would certainly, for now, take care of the issue.
But I am concerned that it would merely push the problem aside for the time being while not in any way addressing the asymmetry between men and women. This isn't just a matter of symbolism. Right now I'm looking for practical suggestions, not for Congress to be a beacon of sanity on gender issues! But suppose that there were some circumstance in a couple of decades (or far less) in which everyone suddenly thought that we needed to reinstate the draft in a hurry. Our country does not think well in a hurry. (To put it mildly.) It seems to me plausible that under those circumstances, the gears of government would start spinning fast, the draft would suddenly be reinstated, and women would be swept up along with men. And don't tell me that that couldn't happen without the registration database in place. In the age of massive electronic record-keeping and massive federal power, it would be child's play for the federal government to find the relevant young people to draft. Moreover, if everyone had been told all along that "there is no draft anymore," women would not have been forewarned and even traditional women would not have developed the background I am suggesting to permit them to try to claim CO status in a crisis if they were actually drafted. In other words, as far as the issue of women and the draft, I worry that a law eliminating draft registration merely will postpone the evil day and meanwhile create a false sense of security. That doesn't mean, however, that I wouldn't welcome it or that I think it is a bad law, merely that I think it may not be sufficient to address this issue.
My own suggestion, which oddly enough no one seems to be trying, is that Congress take back into its own hands the issue of women in combat and that Congress officially remove women from direct combat. Mind you, that wouldn't address all the problems with women in the military by a long shot. As documented in Brian Mitchell's book, women's so-called "support" positions began to be redefined, standards were lowered, and feminism began to take over, as far back as the 1970's, and that process continued for a long time while allegedly women were "banned from combat." But baby steps, baby steps. For the time being, the immediate crisis is that women may be forced to register for the draft because the Obama DoD has decided to put women into all combat roles. This didn't used to be up to the DoD. Up until the 1990's, there were explicit laws on the books that prohibited women in full combat. In other words, it was up to Congress. These were repealed only in the early 1990's.
It would seem that Hunter, Zinke, Lee, Cruz, and all the other representatives and senators who want to do something about this should take the most direct route: Just ban women in combat at the congressional level. Return us to the status quo ante as it was before the 1990's changes.
The SCOTUS can choose to stick its nose in anywhere, given its history of lawlessness, but it has no direct precedents that would prevent this. SCOTUS never ruled that it was unconstitutional for Congress or the DoD to ban women in combat. What SCOTUS ruled was that it was constitutional to require only men to register for the draft because women were not allowed in combat. So prima facie, there is no SCOTUS ruling that would prevent Congress from taking that matter back into its own hands rather than leaving it to the vagaries of different administrations.
To my mind this would be the most obvious, straightforward, and effective way of preventing women from being required to register for the draft. Of course, the same law that bans women in combat can and should re-assert that only men are required to register for the draft. But the future success of such a law would not depend (or at least not so obviously as the success of Lee's bill) upon jurisdiction-stripping from the federal courts. Moreover, such a law would attempt to prevent the negative effects in the present of the bad plan to put women in full combat roles in the all-volunteer force.
I applaud the desire of Senator Lee and Representatives Zinke and Hunter to protect our daughters from the draft. I applaud Senator Cruz's forthright statements against the female draft. I suggest that the men in Congress who want to do something about this unite around a plan, and I think removing women from combat by congressional action is the best plan of all.