As early as Thursday, Senator Mike Lee will drop in a new bill that would give Congress — not the president, not the Supreme Court — sole authority to decide whether women can register for the draft, pairing legislative text with the recent explosion in debate on the issue.
The exclusion of women from the draft is already law – upheld by the Supreme Court in 1981 — but the rationale for the Court’s decision centered on the combat restrictions for women that existed at the time. Now that those restrictions have been lifted — Defense Secretary Ash Carter announced the change in December — so too has the premise for current law.
The Utah senator seeks to preempt a scenario in which the Supreme Court takes up another challenge to the selective-service law and decides to “rewrite it like they did for Obamacare,” says Conn Carroll, a spokesman for Lee. He thinks it’s plausible the Court would reason that because women can now fight on the frontlines, “Congress must have meant drafting women would be ok, too.”
Lee’s bill would restate the ban on women registering for the draft, independent of combat policy, and clarify that only Congress has the authority to amend the statutory requirements of who must enroll in the draft, a nod to the Article I powers of which Lee has been an outspoken advocate.
“This debate and decision will have to be made by members of Congress, not less accountable political leaders at the Pentagon or Court justices,” Carroll says.
#share#Lee’s team began brainstorming legislation following a Senate Armed Services Committee hearing last week, where Army Chief of Staff Genenral Mark Milley and Marine Corps Commandant General Robert Neller made headlines for their assessments that it was time for women to register for the draft. “It’s my personal view . . . that every American physically qualified should register,” Neller said.
That admission sparked a question on the issue from moderator Martha Raddatz during Saturday’s Republican debate in New Hampshire. Candidates were asked their thoughts on lifting the ban, and Marco Rubio, Chris Christie, and Jeb Bush all said they were in favor. As Christie put it, “There’s no reason why one young woman should be discriminated against for registering for the selective service.”
Ted Cruz, who didn’t weigh in during the debate, fired back the next day at a campaign rally in Peterborough, N.H. “The idea that we would draft our daughters to forcibly bring them into the military and put them in close combat, I think, is wrong. It is immoral,” he said. “And if I’m president, we ain’t doing it.”
Lee joined that growing chorus of conservative lawmakers opposed to lifting the ban, telling reporters in a statement: “I do not want to see my 15-year-old daughter drafted into the military.”
While all 18-to-25-year-old men are required to register for the draft, the U.S. has relied on an all-volunteer force since the close of the Vietnam War in 1973.