Only Congress can provide the induction authority, including funding, that would be necessary to reinstitute compulsory military service.
It was maddening, but not surprising, for White House Press Secretary Karoline Leavitt to say President Trump was not “removing options off of the table” when Fox News’s Maria Bartiromo asked whether compulsory military service might be reinstituted. (See Jim’s Jolt this morning.)
In fairness to Leavitt, Bartiromo was mainly asking about whether the aerial campaign against Iran might be expanded to include the introduction of ground troops. I believe Leavitt was trying to convey that the war would remain an air campaign, but felt compelled to add the caveat — apparently mandatory for all Trump administration officials — that Trump never says, “never”: never tips his hand or gives ground on anything related to power he might choose to exercise, regardless of whether the Constitution makes it his power to exercise.
Nevertheless, although Bartiromo was asking about ground forces, she also pointedly injected into her question the potential renewal of the draft. Any press secretary should have known this would be an explosive issue — even if the administration had not utterly failed to explain the president’s rationale for invading Iran at this point in time, and even if his MAGA base was not already unnerved by the military campaign given the president’s campaign rhetoric against such enterprises. Leavitt should have known that she needed to dismiss draft talk out of hand or the administration would have a problem on its hands . . . which it now does.
While the matter as not as straightforward as I would have supposed, the president does not have unilateral authority to reinstitute the draft, which ended in 1973 as U.S. participation in the Vietnam War wound down. In essence, Congress left the selective service system in place, requiring young adults to register for military service, but allowed the provision that enabled induction into military service to lapse.
At first blush, it appears that presidential authority is sweeping. The relevant statute, Section 3803(a) of Title 50, U.S. Code, states:
The President is authorized, from time to time, whether or not a state of war exists, to select and induct into the Armed Forces of the United States for training and service in the manner provided in this chapter (including but not limited to selection and induction by age group or age groups) such number of persons as may be required to provide and maintain the strength of the Armed Forces. [Emphasis added.]
I’ve highlighted the seemingly innocuous phrase “in the manner provided in this chapter” because the president’s judgment is not the end of the matter. In the relevant chapter of the federal code, which is broad, Congress provides for funding troop levels, draft classification procedures, induction processing, deferments, and exemptions, among many other things. Traditionally, when we have had a draft, the way Congress has handled it is to make temporary provisions for these matters which sunset unless renewed by subsequent statutes.
In 1971, when the then-current Vietnam induction authority was set to expire, Congress extended it to end as of July 1, 1973. (It’s a bit inscrutable, but see Pub. L. 92-129, 85 Stat. 348 (at 355.)) Thereafter, Congress did not take further action; it simply allowed the induction authority to lapse.
President Trump could not sua sponte reinstitute compulsory military service. He would need Congress to enact funding and various aspects of induction authority. I don’t see any prospect of that.
It would be prudent if the president, the “War” secretary, or the White House press secretary clarified that it would require congressional action to reinstitute the draft and the president has not asked for that. Alas, that is not how this administration rolls.