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Senate Should Drop McCain Mandate to Register, Draft Young Women

May 27, 2016
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Generals’ Opinions Misconstrued as “Recommendation”

During a May 19 Senate Armed Services Committee session marking-up the National Defense Authorization Act for 2017 (NDAA - SR 2814), Chairman John McCain (R-AZ) pushed for and passed legislation to register women for Selective Service and a possible future draft.

Chairman McCain also proposed an unnecessary Commission on Military, National, and Public Service to look for additional ways for the government officials and politically-correct organizations to commandeer young people’s lives.

These proposals were sprung on the committee behind closed-doors ˗˗ without prior notice or comprehensive hearings on the underlying paramount issue: Whether women should be ordered into direct ground combat units that fight the enemy with deliberate offensive action.

Chairman McCain has shown little curiosity about compelling reasons why the Marines filed an official request for exceptions to the administration’s plans to order minimally-qualified women into the infantry.  Instead, McCain persuaded six Republicans to follow his lead in compounding the administration’s error by voting to register women for the draft on an equal basis.

Sen. Mike Lee (R-UT) offered an amendment to strike the McCain language, and he was supported by six Republican colleagues: James Inhofe (OK), Jeff Sessions (AL), Roger Wicker (MS), Tom Cotton (AR), Mike Rounds (SD ) and Ted Cruz (TX).

All Democrats and seven Republicans, unfortunately, united to defeat the Lee motion to strike, 19-7.  In addition to McCain, Senators Kelly Ayotte (NH), Deb Fischer (NB), Joni Ernst (IA), Thom Tillis (NC), Dan Sullivan (AK) and Lindsay Graham (SC) voted against the Lee amendment.  They and all Democrats on the committee should be held accountable for doing harm to all civilian young women and to military readiness.  [i]

The Center for Military Readiness strongly objects to both of the McCain measures for reasons highlighted in this two-page summary:

Senate Should Remove from NDAA: Selective Service Registration of Women for Draft and Push for National Service

The Issue is National Security, Not “Women’s Rights”

Young women would be harmed most by passage of the McCain bill, but the issue is not about women alone.  It is about military readiness in the face of future catastrophic threats to America that are more than our severely-depleted All-Volunteer Force can handle.

The Selective Service system is a relatively low-cost insurance policy that backs up the All-Volunteer Force (AVF).  In a future national emergency beyond the capability of our severely-depleted volunteer force, full national mobilization might leave no choice but to re-activate the Selective Service system.

In the Army and Marine Corps, the largest communities are infantry.  The purpose of conscription is not to induct people for desk jobs or playing in the band; it is to rapidly find and train “combat replacements” for casualties fallen in battle.

If the McCain Selective Service mandate is signed into law, any future call-up of men to fight a future war would have to include equal numbers of young women.  The few who meet minimum standards would be trained and ordered into combat arms units such as the infantry, where the critical need to fight is greatest.

Theories about gender equality fail in comparison to scientifically-proven realities.  Differences in male and female physical capabilities are not going to change.

Recent Marine Corps research findings, which the administration and Congress have ignored, confirmed unchanging physical differences between men and women that would make direct ground combat arms units such as the infantry less strong, slower, and less lethal during missions to deliberately fight and kill the enemy. [ii]

In addition, a 2014 Marine Corps study reported that training injury and attrition rates of volunteer female recruits average double those of men, and recent tests indicate that women would suffer six to ten times more debilitating injuries than men in the combat arms.  These and other problems cannot be mitigated by more training alone.

A “gender-neutral” Selective Service call-up that ignores unchanging physical differences between men and women would create a political crisis and a paralyzing administrative overload that would weaken our armed forces at the worst possible time.

The Selective Service system would have to waste scarce time and resources trying to evaluate and train thousands of women ˗˗ just to find the small percentage who might be minimally qualified for the combat arms.

Jamming the induction system during a time of crisis, instead of concentrating on men who can be rapidly trained to fight in physically-demanding ground combat units, would weaken, not strengthen, our military when men are dying on the battlefield.

Mistaken Arguments for Drafting Women

According to a written statement provided to The Hill, Chairman McCain was acting to support the “recommendation” of Marine Commandant General Robert Neller and General Mark Milley, Army Chief of Staff that women should be subject to Selective Service.  This overstatement apparently influenced several committee members, including Sen. Kelly Ayotte.

It is clear that both generals offered personal opinions in response to a question, not official recommendations that women be registered with Selective Service.  In fact, their opinions were not endorsed by their civilian superiors, Secretary of the Navy Ray Mabus and Acting Secretary of the Army Patrick Murphy, who were sitting at the same table.

Even if President Obama and all of his appointees and generals supported the idea, the Supreme Court said in Rostker v. Goldberg (1981) that only Congress has the power to make policy regarding conscription.  With that power comes the responsibility to discuss and debate the readiness consequences of hopelessly jamming Selective Service with thousands of unqualified draftees.

After CMR raised questions about the apparent misrepresentation of the generals’ personal opinions, the committee summary was changed to replace the word “recommendation” with “personal support.”  Regardless of what happened behind closed doors, all should be held accountable.  This is no way to pass a law that would affect every young woman in America.

Would the Supreme Court Still Uphold Women’s Draft Exemption?

In the 1981 landmark decision titled Rostker v. Goldberg, the Supreme Court upheld the constitutionality of women’s exemption from Selective Service.  Extensive congressional hearings in 1979 concluded that no one should be drafted unless there is a need for “combat replacements” for troops lost in battle.

According to an analysis by Campbell University School of Law Professor William A. Woodruff titled Women, War, and Draft Registration, the Supreme Court noted that women were serving in uniform, but not in the combat arms.  Therefore, since they were not “similarly situated” in land combat units, exempting them from the draft did not violate equal protection principles.  It was an easy call to make.

The Supreme Court also affirmed the constitutional right of Congress to decide, citing a Senate report stating that registering or calling up equal numbers of women in a time of national emergency would be “administratively unworkable and militarily disastrous.”

Women’s status quo exemption would continue even if a federal court exceeds its authority in striking the entire Selective Service law.  Congress would still have the constitutional power and duty to raise and support armies and to prudently prepare for future existential threats.

First, Do No Harm

If a federal court strikes the current all-male Selective Service law, women’s status quo exemption would continue.  A CMR Policy Analysis titled Women, War, and Selective Service explains how Congress could preserve women’s exemption from Selective Service by building a record of reality-based empirical research and sound policies that assign highest priority to military necessity, not egalitarianism.

No one can guarantee the outcome of a future Supreme Court decision, but congressional approval of legislation to register and draft women would send precisely the wrong message.   The Senate and House should reject any legislation that would draft America’s daughters, and instead resolve to conduct diligent, independent oversight that is long overdue.

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Update #1: In an earlier article posted on this website, titled House, Senate Should Defeat “Draft America’s Daughters” Legislation, CMR raised concerns about the provocatively-named “Draft America’s Daughters” bill, which Rep. Duncan Hunter proposed during a House Armed Services Committee session marking up the House committee’s draft of the FY 2017 NDAA.  Congressman Hunter voted against his own amendment, but it passed with a narrow 32-30 roll-call vote.  Six Republicans and all but one Democrat casually voted to impose on young women Selective Service obligations, including a possible future draft.

Fortunately, House Rules Committee Chairman Pete Sessions and Armed Services Committee Chairman “Mac” Thornberry, both of Texas, stepped up to prevent passage of a committee-passed amendment to “Draft America’s Daughters.”  If the Senate committee approval is passed on the floor, a conference committee would have to resolve differences.  Media pressure could result in conference approval of the NDAA, with the offensive language, and President Barack Obama likely would sign it into law.

Update #2:

On July 7 Congressman Warren Davidson (R-OH), an Army veteran, offered an amendment to the House Defense Appropriations Act that would cut off funding for actions to include women in Selective Service registration.  The Davidson amendment, which was narrowly approved (217-203), will help to raise awareness of why the Senate should drop co-ed conscription language from its version of the National Defense Authorization Act for 2017.  Additional reasons are summarized here:

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[i] Committee Democrats who voted unanimously to impose Selective Service burdens on civilian young women included:  Jack Reed (RI), Bill Nelson (FL), Claire McCaskill (MO), Joseph Manchin (WV), Jeanne Shaheen (NH), Kirsten Gillibrand (NY), Richard Blumenthal (CT), Joe Donnelly (IN), Mazie Hirono (HI), Timothy Kaine (VA), Angus King (ME), and Martin Heinrich(NM).

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More background information and historic documents on this topic may be available in the 'Essential Resources' section of this website, or in a previous edition of CMR E-Notes, archived here.