### Proposed Presidential Proclamation Entitled

“Registration Under the Military Selective Service Act”

[T he follow ing m em orandum w as prepared by the O ffice o f Legal C ounsel pursuant to its responsibility under E xecutive O rd e r N o. 11,030 for approving all executive o rd ers and presidential proclam ations for form and legality. O n the constitutional issue raised by the proposed proclam ation, it notes the conclusion reached in an earlier opinion o f the O ffice that a m ale-only draft is constitutional. O n the statutory question, it concludesthat the President is authorized under th e S elective Service A ct to require the registration, by age group, o f som e but not all m ales betw een the ages o f 18 and 26.]

June 30, 1980

MEMORANDUM

The attached proposed proclamation was submitted informally to the Office of Management and Budget by the Selective Service System. It was revised in the Office of Management and Budget and has been forwarded for consideration of this Department as to form and legality by that Office with the approval of the Director. Suggestions made by this Office were incorporated during the drafting process. The proposed proclamation would invoke the President’s power under § 3 of the Military Selective Service Act, as amended [the Act], 50 U.S.C. App. § 453, to require male citizens of the United States and other male persons residing in the United States between the ages of 18 and 26 and not exempt under the Act to register with the Selective Service System. It would end the hiatus in registration caused byPresident Ford’s Proclamation No. 4360 of March 29, 1975 (“Terminating Registration Procedures Under the Military Selective Service Act, as Amended”). The proclamation would require the registration of all nonexempt males who were born on or after January 1, 1960 and have reached theage of 18. No other persons would be required to register. This designation of the persons required to register raises constitutional and statutory issues. The constitutional question is whether requiring men but not women to register constitutes impermissible discrimination based on sex. This Office has previously addressed that issue and has concluded that a male-only registration is constitutional. Memorandum from AssistantAttorney General Harmon to Deputy Director White, Office of Man705agement and Budget, “Constitutionality of All-Male Draft Registration,” January 31, 1980.* The statutory question involves the President’s power to require the registration, by age group, of some but not all males between the ages of 18 and 26. An argument can be made that the President’s power is limited to requiring the registration of the entire group; that he may not, as the proclamation would, limit registration to 18, 19, and 20 year
olds. Section 3 of the Act provides in pertinent part that
it shall be the duty of every male . . . who, on the day or days fixed for the first or any subsequent registration, is between the ages of 18 and 26, to present himself for and submit to registration at such time or times and place or places, and in such manner, as shall be determined by proclamation of the President and by rules and regulations prescribed hereunder.

50 U.S.C. App. § 453 (emphasis added). This language, on its face, can be read as evincing a congressional intent that all persons within the age group delineated be registered. Moreover the phrase “at such timeor times and place or places, and in such manner, as shall be determined by proclamation of the President” does not, in terms, give the President discretion to exclude groups in the 18-to-26 range from the duty imposed on every male in that range. The legislative history of § 3 reveals that
The Senate bill provided for the registration of male persons between the ages of 18 and 26, and contained no specific provision authorizing registration by age groups. The House amendment provided for the registration of male persons between the ages of 18 and 31, and specific cally authorized the President to provide for registration by age groups.
H. Conf. Rep. No. 2438, 80th Cong., 2d Sess. 44 (1948). The conference adopted the Senate version, the version devoid of specific authority for the President to provide for registration by age groups. Id. This was incontradistinction to the course that Congress had taken in the predecessor to § 3, the model for the House version. The predecessor contained the specific authority, in the exact language omitted from § 3 in 1948. Compare § 2 of the Selective Training and Service Act of 1940, 54 Stat. 885, with § 3 of H.R. 6401, 80th Cong., 2d Sess. (1948), at 94 Cong. Rec. 8395 (1948).1

• N o te : In Rostker v. Goldberg, 453 U.S. 57 (1981), the Suprem e C ourt upheld the constitutionality o f male-only draft registration. Ed. 1 A lthough the Selective Training and Service A ct o f 1940 contained the specific authority for registration by age groups, a contem poraneous interpretation by the A ttorney G eneral concluded that

706In light of the language of § 3 and its legislative history, this Office orally advised the Office of Management and Budget earlier this year that it would be highly desirable to have some congressional action confirming his authority before the President issued a proclamation calling for the registration of persons by age groups consisting of lessthan the entire 18-to-26 range. Since we provided that advice, Congress, at the request of the President, and fully informed of the President’s plan to register, by age group, less than the entire range has, after lengthy and considered debate, appropriated for this registration funds sufficient only to register the number of males in the age groups named in the proclamation. We believe that this congressional action is sufficient to confirm the President’s authority. The proclamation would require persons born in 1960 to register during a six day period beginning July 21, 1980. Those born in 1961 would register between July 28, 1980 and August 2, 1980, and those born in 1962 between January 5, 1981 and January 10, 1981. The proclamation would also establish a continuous registration process, obligating persons to register as they turn 18, upon losing an exemptstatus, and, with respect to noncitizens, either as they return to residence in the United States from abroad or as they enter to reside. Aliens in processing centers on the days fixed for their registration would be required to register after their release. A range of days to register would be provided those subject to the continuous registration program. Provision would be made for the late registration of those unable to register at the proper time due to some condition beyond their control, such as hospitalization or incarceration. Registration in the United States would be at any United States Post Office. Registration overseas—available to citizens only—would be before a consular officer of the United States or other designated

the President was nonetheless required to register, within a reasonable time, al) persons within the 21- to-36 range set in that A ct by Congress. Regarding the first registration proclamation under the 1940 act, the A ttorney General w rote the President:

It will be noted that on page 3 of the draft, in paragraph numbered 2, the higher age limit of those to be registered on the sixteenth day of O ctober is left blank. This was done out of deference to the wishes of the W ar D epartm ent w ho I understand will urge that such age limit for the first draft be the thirty-first anniversary of the day of
birth. The language o f the act is ambiguous and I am not prepared to say that you may not require registration of persons of different age groups on different registration days. T he statute as a whole, however, definitely contem plates that all persons between the ages o f twenty-one and thirty-six shall be registered, and under the constitutional requirement that the President shall take care that the laws are faithfully executed, it is, in my opinion, your duty to see that this is done within a reasonable time. If, therefore, the age limit inserted in the blank above indicated is other than "thirty-sixth" you should, within a reasonable time, set another registration date or other registration dates for the purpose of the registration of all persons falling within the age limits prescribed in the statute. W hat is a reasonable time for such purposes depends, of course, upon the exigencies under existing conditions. Letter to the President from the Attorney General, of September 16, 1940. (The decision made was to register the entire group. See Proclamation No. 2425 of Septem ber 16, 1940 (“ Registration D ay”), 3 C .F.R. at 185 (1938-43 Comp.).)

707person at any United States Embassy or Consulate. Hours for registration in the United States would be the business hours of the PostOffices. Hours for registration overseas would be set by the Department of State. In utilizing the Post Office and the Department of State to assist the Selective Service in registering persons, the President would be exercising his authority under § 10(b)(5) of the Act, 50 U.S.C. App. § 460(b)(5), “to utilize the services of any or all departments and any and all officers or agents of the United States . . . in the execution of this title [§§ 451 through 471a, 50 U.S.C. App.].” The proclamation would direct persons required to register to comply with the registration procedures and other rules and regulations prescribed by the Director of Selective Service, to identify themselves when reporting for registration, and to keep the Selective Service System informed of their current addresses after registration. It would urge everyone to cooperate with and to assist those required to register. Executive agencies would be required, upon request of the Director, to assist, to the extent permitted by law, the Selective Service System in carrying out the purposes of the proclamation. This Office has been informed by the Office of the Counsel to thePresident that that Office intends to have a reference to the congressional resolution making the funds for this registration available inserted in the proclamation’s preamble. No such reference is contained in the proposed proclamation as transmitted to this Department by the Office of Management and Budget. Its inclusion will not affect the legality of the proclamation. The proposed proclamation is acceptable as to form and legality.

J o h n M . H a r m o n Assistant Attorney General Office o f Legal Counsel

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