Kessler on the New Look Selective Service System

Jeremy Kessler, Columbia Law School, has posted New Look Constitutionalism: The Cold War Critique of Military Manpower Administration, which is forthcoming in the University of Pennsylvania Law Review 167 (2019): 1749-1782:

Between 1953 and 1960, the United States’ overall military and intelligence-gathering capacities grew enormously, driven by President Eisenhower’s “New Look” approach to fighting the Cold War. But the distribution of powers within this New Look national-security state, the shape of its institutional structures, and its sources of legitimacy remained up for grabs. The eventual settlement of these issues would depend on administrative constitutionalism—the process by which the administrative state both shapes and is shaped by constitutional norms, often through ostensibly non-constitutional law and policymaking.

Constitutional concerns about civil liberties, administrative procedure, and the separation of powers ran highest in those branches of the national security state responsible for regulating civilian and military manpower, such as the Loyalty-Security Program, an inter-agency effort to root out ideologically deviant federal employees, and the Selective Service System, the civilian agency created in 1940 to register, classify, and select millions of young men for compulsory military service. This Article focuses on the Selective Service System, which has received far less attention from legal scholars despite the fact that it exercised authority over a far larger (and arguably more vulnerable) population than did the Loyalty-Security Program. Administrative constitutionalism inflected every stage of the New Look draft’s development: from the size and composition of draft calls; to the arguments that draft administrators made when lobbying their congressional patrons; to the competing interpretations of the Selective Service System’s organic statute and regulations offered by Justice Department and Selective Service lawyers; to judicial review of these interpretations; to how executive branch lawyers responded to—and sometimes tried to preempt—judicial criticism by modifying the substance and procedure of draft decisionmaking.

By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower’s New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may be more usefully understood as products, rather than preconditions, of administrative constitutionalism.

--Dan Ernst