Detenber v. Turnage, 82-1786

Citation701 F.2d 233
Decision Date11 March 1983
Docket NumberNo. 82-1786,82-1786
PartiesBenjamin DETENBER et al., Plaintiffs, Appellants, v. Thomas K. TURNAGE, Director of the Selective Service System, et al., Defendants, Appellees.
CourtU.S. Court of Appeals — First Circuit

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 by arguing that the cases were decided during times of "national emergency." They meet the claim that the President and Congress in reinstating registration must have found an emergency by contending that the courts, rather than the President or Congress, should determine whether sufficient emergency exists. This argument, however, runs counter to the Supreme Court's instruction to accord a "healthy deference to legislative and executive judgments in the area of military affairs." Rostker v. Goldberg, 453 U.S. at 66, 101 S.Ct. at 2652; see Gilligan v. Morgan, 413 U.S. 1, 10, 93 S.Ct. 2440, 2445, 37 L.Ed.2d 407 (1973). And, we...

To continue reading

Request your trial
2 cases
  • Hunton & Williams LLP v. U.S. Envtl. Prot. Agency
    • United States
    • U.S. District Court — District of Columbia
    • March 31, 2017
  • U.S. v. Schmucker
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • May 6, 1987
    ...no training, service or combat" and "is physically (and arguably morally) less intrusive than the draft itself." Detenber v. Turnage, 701 F.2d 233, 234 (1st Cir.1983); see also United States v. Bertram, 477 F.2d 1329, 1330 (10th Cir.1973) (registration "does not infringe or curtail religiou......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT