           Proposed Presidential Proclamation Entitled
      “Registration Under the Military Selective Service Act”

[T h e fo llo w in g m em o ran d u m w as p re p a re d by the O ffice o f L egal C ounsel p u rsu an t to its
   responsibility u n d e r E x e c u tiv e O r d e r N o. 11,030 for a p p ro v in g all ex ecu tiv e o rd e rs an d
   p residential p ro clam atio n s for form and legality. O n th e co n stitu tio n al issue raised by
   th e p ro p o sed p ro clam atio n , it notes th e con clu sio n rea c h e d in an ea rlie r opinion o f the
  O ffice th at a m ale-only d ra ft is co n stitu tio n al. O n th e sta tu to ry q u estion, it co n clu d es
  th at th e P resid en t is a u th o riz e d u n d er th e S electiv e S erv ice A c t to re q u ire th e re g istra ­
  tion, b y age g ro u p , o f som e b ut n o t all m ales b etw een th e 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 (“Terminat­
ing 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 desig­
nation of the persons required to register raises constitutional and statu­
tory 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 Man­
                                                        705
agement and Budget, “Constitutionality of All-Male Draft Registra­
tion,” 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 deter­
mined 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 per­
          sons 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 predeces­
sor 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 t e : In Rostker v. Goldberg, 453 U.S. 57 (1981), the Suprem e C ourt upheld the constitutionality
o f m ale-only draft registration. Ed.
    1 A lth o u g h the Selective Training and Service A ct o f 1940 contained the specific authority for
registration by age groups, a contem poraneous in terpretation by the A ttorney G eneral concluded that



                                                   706
   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, Con­
gress, at the request of the President, and fully informed of the Presi­
dent’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 resi­
dence 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, w ithin a reasonable time, al) persons w ithin the 21-
to-36 range set in that A ct by Congress. R egarding the first registration proclam ation under the 1940
act, the A ttorney G eneral w rote the President:
              It will be noted that on page 3 o f the draft, in paragraph num bered 2, the higher age
           limit o f those to be registered on the sixteenth day o f O cto b er is left blank. This was
           done out o f deference to the w ishes o f 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 o f the day of
           birth.
              T he language o f the act is ambiguous and I am not prepared to say that you may not
           require registration o f persons o f different age groups on different registration days.
          T h e statute as a w hole, how ever, definitely contem plates that all persons betw een the
          ages o f tw enty-one and thirty-six shall be registered, and under the constitutional
           requirem ent 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 w ithin a reasonable time. If, therefore,
          the age limit inserted in the blank above indicated is o th er than "thirty-sixth" you
          should, w ithin a reasonable time, set an o th er registration date or other registration
          dates for the purpose o f the registration o f all persons falling w ithin 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.
L etter to the President from the A ttorney G eneral, o f Septem ber 16, 1940. (T he decision made was to
register the entire group. See Proclam ation No. 2425 o f Septem ber 16, 1940 (“ R egistration D a y ” ), 3
C .F .R . at 185 (1938-43 C om p.).)


                                                  707
person at any United States Embassy or Consulate. Hours for registra­
tion in the United States would be the business hours of the Post
Offices. Hours for registration overseas would be set by the Depart­
ment 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 congres­
sional 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 ohn M. H arm on
                                     Assistant Attorney General
                                      Office o f Legal Counsel




                                   708
