Jeremy Kessler, Columbia Law School, has posted Selective Service and the Separation of Powers, which is forthcoming in the Boston University Law Review:
This Response argues that the secularization of conscientious objection during the Vietnam War is part of a larger and longer-running story. That story is about pacifists and draft resisters, but it is also about how the military draft destabilized the separation of powers, leading the federal judiciary to encroach upon congressional and administrative authority while fracturing the executive branch. The primary legal weapon deployed in these inter- and intra-branch conflicts was creative statutory interpretation. Congress rarely codified winning interpretations because congressional majorities usually opposed them. Accordingly, the statutory text itself -- whether in 1948, 1956, 1967, or today -- tells us little about how the federal justice system regulated the draft in light of that system's “underlying concepts of procedural regularity and basic fair play.”
If a future Congress heeds Professor William Aceves’s call to codify judicial recognition of secular conscientious objection, it should thus take the opportunity to confront a more basic question: whether the Military Selective Service Act as written is consistent with contemporary concepts of “procedural regularity and basic fair play.” The answer to this question is likely "no," precisely because those concepts are consistent with -- and at times directly indebted to -- the norms elaborated by judicial and executive critics of draft administration. Yet to amend the draft law to reflect those critics' favored norms might frustrate any future war fought with drafted soldiers. As this Response shows, the legal preferences of federal judges and Justice Department officials played a significant, and perhaps determinative, role in the erosion of the draft’s capacity and legitimacy between WWII and Vietnam.
Today, appalling casualty rates in Ukraine have led some factions of the military and national security bureaucracy to conclude that the outcome of any prolonged military conflict with Russia, China, or even, perhaps, Iran will depend on drafted soldiers. Whether such a conflict – or the interpretive methods used to adjudicate resistance to it – would break the historical pattern of official draft resistance is an open question. But the fate of both secular conscientious objectors and the Selective Service System as a whole will depend on the answer.
--Dan Ernst
