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Hope for Non-registrants on the Horizon: Elgin v. U.S.

In January, Douglas P. Woodlock, U.S. District Judge in Massachusetts in Elgin v. U.S., No. 1:07-cv-12391 (D. Mass.), ruled that the law that denies employment to non-registrants over the age of 26 is an unconstitutional Bill of Attainder.  The case was brought on behalf of 4 plaintiffs who had been fired from federal jobs, or denied employment, because they hadn't registered with Selective Service, and all similarly situated people in the US.  The four named plaintiffs are over 26 years of age and therefore are not allowed to register.

A Bill of Attainder is a law that punishes a person prior to due process of law. These laws violate a basic principle that we were all taught in grade school that under U.S. law, someone is presumed innocent, and therefore shouldn't be punished, unless proven guilty in a court of law.

In the mid-1980's, Congress passed several pieces of legislation that deny federal benefits to anyone who is required to register with Selective Service and fails to do so. One of these laws denies to non-registrants employment in a federal "Executive Agency" which is most federal jobs.  These laws turned that principle on its head, and punished anyone who couldn't verify that they had complied with the law.

The Center has consistently held the position that these laws were unfair to conscientious objectors and unconstitutional.  The previous efforts to overturn them, Selective Service System v. Minnesota Public Interest Group ("MPIRG"), 486 U. S. 841(1984) and Rostker v. Goldberg, 453 U.S. 57 (1981) were unsuccessful.  In Rostker the Supreme Court held that since women were not allowed in combat, there was no equal protection claim.  In MPIRG, the Supreme Court held that the issue of a Bill of Attainder was not ripe.  As the Court in MPRIG said, the nonregistrants "held the key to the jail house door" since they were under 26 and could resolve this issue merely by registering with Selective Service.

MPRIG, however, left open the question of a Bill of Attainder for a person over the age of 26 who failed to register and was denied benefit under one of the laws.

In order to find a law to be a bill of attainder, it must have several distinct characteristics. First it must be punitive. Secondly, it must be for a past action that cannot now be remedied, and thirdly, the punishment must be enforced without the benefit of a judicial hearing. Among the evidence considered by the judge was a proposed change to the law (which did not pass) which would have ended the punishment at the age of 31, when the statute of limitations would run out for prosecuting a non-registrant. The judge cited testimony by Selective Service to Congress in favor of the change.

"'It is the position of the Selective Service System that the existing lifelong ban on federal employment for individuals who failed to register ... serves no useful registration purpose or any public policy benefit.' In short, the agency charged with administering the draft hasapparently concluded that the measure serves no nonpunitiveremedial purpose in encouraging compliance with the registration process. I share the view that the plain purpose of the statute is not remedial but punitive."

The judge went on to quote from the Congressional Record account of the debate on the bill when originally proposed to show that the intent of the law was in fact punitive.

The court also pointed out that "individuals affected by [this law] receive no meaningful judicial evaluation before being terminated or deemed ineligible for federal agency employment. Indeed, no judicial oversight at all is available."

He went on to observe that the decision making procedure regarding Selective Service registration is particularly rigid.  He gave examples of bad decisions concerning this, such as someone who was out of the country from the age of 4 till he was 26 and therefore was denied employment because he hadn't registered--and someone who joined the military at the age of 17 and stayed in till he was over 26 and was denied a government job because he hadn't registered.

"The statute's punishment is imposed after a ‘trial' by legislation . . . without any judicial role. . . I conclude that no circumstances exist that would permit Congress, in contravention of the Constitution's Bill of Attainder Clause, to prohibit nonregistered males age twenty-six and older from federal agency employment for their lifetimes without judicial decisionmaking."

This is a very strong statement by a federal judge declaring this law to be an unconstitutional Bill of Attainder. But it's only a district court decision and it's not over yet.  The plaintiffs have filed motions for a preliminary injunction so they can get the jobs that they've been denied.  Their lawyer has also filed to have the case certified as a class action which would give it a much larger impact.  The government is expected to file a motion to reconsider.  A hearing is scheduled in May to consider all of these motions.

The plaintiffs also claimed that the male only registration was a violation of equal protection but the judge dismissed that claim affirming Rostker.

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