701 F.2d 233 (1st Cir. 1983), 82-1786, Detenber v. Turnage

Docket Nº:82-1786.
Citation:701 F.2d 233
Party Name:Benjamin DETENBER et al., Plaintiffs, Appellants, v. Thomas K. TURNAGE, Director of the Selective Service System, et al., Defendants, Appellees.
Case Date:March 11, 1983
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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Page 233

701 F.2d 233 (1st Cir. 1983)

Benjamin DETENBER et al., Plaintiffs, Appellants,

v.

Thomas K. TURNAGE, Director of the Selective Service System,

et al., Defendants, Appellees.

No. 82-1786.

United States Court of Appeals, First Circuit

March 11, 1983

Argued Jan. 31, 1983.

Page 234

Mitchell Benjoya, with whom Jeffrey A. Denner, and Denner & Benjoya, Boston, Mass., were on brief, for appellants.

Al J. Daniel, Jr., with whom J. Paul McGrath, Asst. Atty. Gen., Washington, D.C., William F. Weld, U. S. Atty., Boston, Mass., William Kanter, and Mark H. Gallant, Attys., Appellate Staff, Civ. Div., Dept. of Justice, Washington, D.C., were on brief, for appellees.

Before ALDRICH, BOWNES and BREYER, Circuit Judges.

BREYER, Circuit Judge.

Appellants, a class of eighteen, nineteen, and twenty year old men, ask this court to hold that the current draft registration program is unconstitutional. See 50 U.S.C.App. Sec. 453; Presidential Proclamation No. 4771, July 2, 1980. Their "sex discrimination" claim having been rejected by the Supreme Court, Rostker v. Goldberg, 453 U.S. 57, 101 S.Ct. 2646, 69 L.Ed.2d 478 (1981), they now argue that draft registration deprives them of "liberty" without "due process of law" and invades their right to privacy. Whatever the strength of their claims from a moral or political point of view, from a legal perspective the arguments are without merit.

The Supreme Court has not only upheld the constitutionality of the draft itself, see Selective Draft Law Cases, 245 U.S. 366, 38 S.Ct. 159, 62 L.Ed. 349 (1918), it has also stated explicitly that the "power of Congress to classify and conscript manpower for military service is 'beyond question' ". United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968); see Lichter v. United States, 334 U.S. 742, 755-758, 68 S.Ct. 1294, 1301-02, 92 L.Ed. 1694 (1948); Ex parte Quirin, 317 U.S. 1, 25-26, 63 S.Ct. 1, 9, 10, 87 L.Ed. 3 (1942). "The constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping," United States v. O'Brien, 391 U.S. at 377, 88 S.Ct. at 1679, and is not conditioned on any "declaration of war," United States v. Jacques, 463 F.2d 653, 656 (1st Cir.1972); see also United States v. Diaz, 427 F.2d 636, 639 (1st Cir.1970).

Appellants seek to distinguish these cases...

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