# Oestereich v. Selective Service System Local Board No. 11/Dissent Stewart

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* Case Syllabus
* Opinion of the Court
* Concurring Opinion Harlan
* Dissenting Opinion Stewart
United States Supreme Court
393 U.S. 233
Oestereich v. Selective Service System Local Board No. 11
Argued: Oct. 24, 1968. --- Decided: Dec 16, 1968
Mr. Justice STEWART, with whom Mr. BRENNAN and Mr. Justice WHITE join, dissenting.
It is clear that in enacting § 10(b)(3) of the Military Selective Service Act of 1967, Congress intended to specify the exclusive methods by which the determinations of Selective Service Boards may be judicially reviewed. Since under the terms of that provision the present suit is plainly premature, I would affirm the judgment of the Court of Appeals.
Section 10(b)(3) provides in pertinent part as follows:
'No judicial review shall be made of the classification or processing of any registrant by local boards, appeal boards, or the President, except as a defense to a criminal prosecution instituted under section 12 of this title, after the registrant has responded either affirmatively or negatively to an order to report for induction * * *.' It is unquestioned that the overriding purpose of this provision was 'to prevent litigious interruptions of procedures to provide necessary military manpower.' To be sure, the provision is somewhat inartistically drawn, but its background and legislative history clearly resolve whatever difficulties might otherwise be presented by the imprecision of the draftsman's language.
In interpreting the less explicit terms of predecessor statutes, this Court had established the general rule that draft classifications could not be judicially reviewed prior to the time a registrant was to be inducted. Review was held to be proper only when challenges to such determinations were raised either (1) in defense to a criminal prosecution following a refusal to be inducted, or (2) in habeas corpus proceedings initiated after induction. See Witmer v. United States, 348 U.S. 375, 377, 75 S.Ct. 392, 393, 99 L.Ed. 428; Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917; Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305.
Occasionally, however, other federal courts had allowed exceptions to this rule. Section 10(b)(3) was proposed and enacted shortly after the Court of Appeals for the Second Circuit had, in the well-publicized case of Wolff v. Selective Service Local Bd. No. 16, 372 F.2d 817, permitted just such an exception. In adopting the section Congress specifically disapproved those decisions that had deviated from the rule against pre-induction review, and made explicit its absolute commitment against premature judicial interference with the orderly processing of registrants. The Senate Armed Services Committee put the matter this way:
'Until recently, there was no problem in the observance of the finality provision. In several recent cases, however, district courts have been brought into selective service processing prematurely. The committee attaches much importance to the finality provisions and reemphasizes the original intent that judicial review of classifications should not occur until after the registrant's administrative remedies have been exhausted and the registrant presents himself for induction.'
A similar statement of intent was included in the report of the House Armed Services Committee:
'The committee was disturbed by the apparent inclination of some courts to review the classification action of local or appeal boards before the registrant had exhausted his administrative remedies. Existing law quite clearly precludes such a judicial review until after a registrant has been ordered to report for induction and has responded either affirmatively or negatively to such an order. In view of this inclination of the courts to prematurely inquire into the classification action of local boards, the committee has rewritten this provision of the law so as to more clearly enunciate this principle. The committee was prompted to take this action since continued disregard of this principle of the law by various courts could seriously affect the administration of the Selective Service System.'
Although the language of § 10(b)(3) contains no explicit reference to habeas corpus as a remedy for inductees seeking to challenge their classifications, that remedy was plainly recognized and approved by Congress. The section provides for review 'after the registrant has responded either affirmatively or negatively to an order to report for induction * * *.' (Emphasis added.) The remedy for one who responds affirmatively cannot, of course, be by way of 'defense to a criminal prosecution' for refusing to be inducted; the only remedy in such a case is habeas corpus, and the Senate Committee Report made quite clear Congress' understanding in this regard:
'A registrant who presents himself for induction may challenge his classification by seeking a writ of habeas corpus after this induction. If the registrant does not submit to induction, he may raise as a defense to a criminal prosecution the issue of the legality of the classification.'
Thus there can be no doubt that § 10(b)(3) was designed to permit judicial review of draft classifications only in connection with criminal prosecutions or habeas corpus proceedings. Today, however the Court holds that § 10(b)(3) does not mean what it says in a case like this, where it is 'plain on the record and on the face of the Act that an exemption ha(s) been granted.' In such a case, it is said, there is a 'clash' between the exemption and the provisions of § 10(b)(3). With all respect, I am simply unable to perceive any 'clash' whatsoever. Exemptions from service are substantive, while § 10(b)(3) is purely procedural, specifying when substantive rights may be asserted. How the Court can conclude that the provisions of § 10(b)(3) somehow do 'violence to' the divinity student exemption is a mystery to me.
The only other reason the Court offers for its casual disregard of § 10(b)(3) is the suggestion that obedience to the statute would lead to 'unnecessary harshness.' But if the statute is constitutional, we have no power to disregard it simply because we think it is harsh. That is a judgment for Congress, not for us. And the Court does not question the law's constitutionality. To the contrary, the constitutionality of § 10(b)(3) is upheld this very day in Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418, in reaffirmation of several previous decisions in which this Court has enunciated and applied the rule against pre-induction review of Selective Service determinations.
The Court states that its 'construction leaves § 10(b)(3) unimpaired in the normal operations of the Act.' The implication seems to be that the present case is somehow exceptional. But the Court has carved out an 'exception' to § 10(b)(3) in exactly the kind of case where, in terms of the interests at stake, an exception seems least justified. The registrant with a clear statutory exemption is precisely the one least jeopardized by the procedural limitations of § 10(b)(3). For, as the Government has acknowledged, 'the Department of Justice would not prosecute (such a registrant) if he refuses to be inducted, and would promptly confess error if he submits to induction and brings a habeas corpus action.'
It is upon those registrants, rather, whose rights are not so clear that the burden of § 10(b)(3) most harshly falls. For it is they who must choose whether to run the serious risk of a criminal prosecution or submit to induction with the uncertain hope of prevailing in a habeas corpus proceeding. Yet the Court has made plain today in Clark v. Gabriel, supra, that a registrant whose exemption from service is not clear will under § 10(b)(3) be put to just such a fateful choice. In light of Gabriel, the allowance of pre-induction review in the present case thus stands as all the more irrational and unjustified.
I respectfully dissent.

## Notes

* ↑ 50 U.S.C. App. § 460(b)(3) (1964 ed., Supp. III). The Act amends and supersedes the Universal Military Training and Service Act.
* ↑ 113 Cong.Rec. 15426 (1967) (Senator Russell).
* ↑ See § 10(a)(2) of the Selective Training and Service Act of 1940, 54 Stat. 893:
* ↑ See Townsend v. Zimmerman, 6 Cir., 237 F.2d 376; Schwartz v. Strauss, 2 Cir., 206 F.2d 767 (concurring opinion); Ex parte Fabiani, D.C., 105 F.Supp. 139; Tomlinson v. Hershey, D.C., 95 F.Supp. 72.
* ↑ In Wolff court allowed pre-induction review of the reclassification of two students who had demonstrated against the hostilities in Vietnam.
* ↑ S.Rep.No. 209, 90th Cong., 1st Sess., 10 (1967).
* ↑ H.R.Rep.No. 267, 90th Cong., 1st Sess., 30-31 (1967), U.S.Code Cong. & Admin.News 1967, p. 1333.
* ↑ S.Rep.No. 209, supra, at 10.
* ↑ The Court seems to limit its holding to statutory 'exemptions'; yet 'deferments' may just as 'plainly' preclude a registrant's induction. See, e.g., 50 U.S.C. App. § 456(h)(1) (1964 ed., Supp. III); 32 CFR § 1622.25 (1968) (full-time college students).
* ↑ A different ground for permitting review in the present case is set out in the separate opinion of my Brother HARLAN. His opinion is founded on the proposition that constitutional problems would be presented by a system that 'deprive(d) petitioner of his liberty without the prior opportunity to present to any competent forum-agency or court-his substantial claim that he was ordered inducted pursuant to an unlawful procedure.' Mr. Justice HARLAN seeks to avoid such difficulties by viewing § 10(b)(3) as intended to prohibit, not all delays in the processing of registrants, but merely those protracted delays that result from judicial consideration of factual claims.
* ↑ The petitioner suggests that where the action of a draft board is challenged as a violation of freedom of speech, the postponement of judicial review until after the scheduled time of induction might have a 'chilling effect' upon First Amendment activity. But petitioner's complaint presents no bona fide First Amendment issue. His alleged return of his registration certificate to the Government would not be protected expression. United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672.
* ↑ In Falbo v. United States, 320 U.S. 549, 550, 64 S.Ct. 346, 347, for instance, a registrant who had not reported for induction sought review of his classification, claiming-as the petitioner claims here-'that he was entitled to a statutory exemption from all forms of national service * * *.' In refusing to permit judicial review, the Court, through Mr. Justice Black, stated:
* ↑ Brief for Respondents 70, n. 33.
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