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 concludes 

that 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 by 

President 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 the 

age 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 Assistant 

Attorney General Harmon to Deputy Director White, Office of Man705
agement 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 time 

or 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 in 

contradistinction 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

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In 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 less 

than 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 exempt 

status, 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.).)

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person at any United States Embassy or Consulate. Hours for registration in the United States would be the business hours of the Post 

Offices. 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 the 

President 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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