A return to some form of required service will require congressional approval. The Constitution in Article 11, Section 1 gives Congress “all legislative powers.” Section 8 gives Congress the power “To raise and support Armies” [para. 12]; “To provide and maintain a Navy” [para. 13]; and “to make rules for the Government and Regulation of the land and naval forces” [para. 14]. While the President “shall be the Commander in Chief of the Army and the Navy” that does not give him or her the power to draft citizens into the military.

The Legality of the Draft

The Supreme Court and the lower federal courts have power over cases arising under the Constitution and laws of the United States. The Supreme Court firmly and unanimously upheld congressional power to enact the 1917 Selective Service law in 1918 rejecting challenges to the legality of the draft from around the country. The Court was clear in rejecting claims that the draft was equivalent to slavery or involuntary servitude forbidden by the 13th Amendment. Decisions since then have emphatically reaffirmed the legality of military conscription.

Gender Classification

No conscription statute has required women to be subject to the draft. In 1981 in Rostker v. Goldberg the Supreme Court was asked whether this blatant gender discrimination violated the Due Process Clause of the Fifth Amendment. The Court preserved the legality of the male only draft registration by noting that the goal of the Selective Service Act was to secure combat troops. In 1981, women were not eligible for combat assignments. Hence, the Court concluded that a “male only” draft was constitutional.

Forty years later, women constitute 15–20 percent of the armed forces. All military positions (including combat ones) are open to qualified women. Thus, today both men and women can legitimately object to a “male only” draft. Men who do not want to serve in the military could claim that they would bear an unequal burden of military service. Women serving or wishing to serve could claim men are treated as favored members of the service. Given the wide range of alleged discriminations against women in the armed forces, Congress would be hard pressed to retain a “male only” draft.