California Selective Service Bill Set for Hearing in Sacramento April 9th

A bill to automatically register draft-age applicants for California driver’s licenses with the Selective Service System (SSS) has been set for its first first hearing in Room 1200 of the State Capitol Annex “Swing Space” building, 1021 O St. in Sacramento (2 blocks south of the Capitol) in Sacramento at 1:30 p.m. on Tuesday, April 9, 2024, before the Senate Committee on Transportation. Only in-person testimony will be accepted, with no remote testimony or livestream, but written testimony can be submitted until April 1, 2024.

The hearing on April 9th will be only the first of several, if the bill moves forward, but will set the tone for debate on the bill.

Here’s what you can do:

1. Testify in person at the hearing in Sacramento on April 9th. (Witnesses typically are allowed only 2-3 minutes each at the open mike at a hearing like this, but while you are in Sacramento you can visit your state Senator and Assembly representative to ask them to oppose SB-1081. If you have more than you can say in two minutes, you can submit a more detailed statement in advance, and summarize it in person, which calls more attention to your written submission.)
2. Organizations (including California and national organizations) and individuals can submit letters of opposition to SB-1081 by April 1st.
3. Californians can contact your state Senators and Assembly members (at their district offices if you can’t make it to Sacramento), to urge them to oppose SB-1081 or any similar bill in the Assembly. It’s especially important to contact members of the Senate and Assembly Transportation Committees.

Written testimony or statements can be submitted by individuals or organizations until April 1, 2024. Typically all organizations submitting position statements for or against a bill are listed in the report published by the legislative analyst and attached to the bill, so it’s useful to send a statement recording your opposition, even if you say only, “Our organization opposes SB-1081.”

To submit a letter, you need to create an account on the Web-based advocacy portal for the California legislature. No letters are accepted by e-mail. See these guidelines for position letters. Individual letters must include your name and address. Organizational letters must include the name of a contact person. To be counted, letters must refer to SB-1081 and state explicitly that you “oppose” this bill (even if your opposition to the bill should be obvious from your statement).

Here’s a legal analysis and critique of SB 1081 submitted to the legislature by the Military Law Task Force of the National Lawyers Guild, and a shorter summary of talking points in opposition to SB-1081.

Of course being opposed to war and conscription are sufficient reasons to oppose preparations for a military draft. But there are many reasons, even for those who aren’t per se antiwar, why this and similar laws in other states are a bad idea.

Let me count the ways:

1. Draft registration is a failure. Linking it to California driver’s licenses won’t salvage it.

An actual draft requires a complete and accurate database of names and current addresses for provable delivery of induction notices. Men ages 18-26 are required to notify the Selective Service System (SSS) within 10 days of any change of address, but few young men do. The SSS exaggerates compliance by counting as “in compliance” anyone who ever registers, even if they register years late and/or move without notifying the SSS. At a Congressional hearing in 2021, the Chair of the House Armed Services Committee noted that, “Under the law you are required to basically let the government know where you are between the ages of 18 and 26, which I can assure you virtually nobody does.”

A summary of issues identified by the SSS in a 2018 induction exercise predicted that, “Almost 50% of inductees WILL NOT receive Reporting Orders…. Results will be massive Undeliverable/Returned to Sender.” Dr. Bernard Rostker, Director of the Selective Service System from 1979-1981, testified in 2019 to the National Commission on Military, National, and Public Service (NCMNPS) that the database is so incomplete and inaccurate as to be less than useless for a draft, and that the registration requirement and the entire Military Selective Service Act should be repealed.

Draft registration proved unenforceable, and an actual draft would be similarly unenforceable. Federal criminal prosecutions of nonregistrants (including in California) didn’t work, and were abandoned by Federal prosecutors in 1988 after only a handful of test cases were brought. Too many young people don’t comply for more than a handful to be prosecuted. The U.S. Department of Justice (DOJ) has no plan or budget for enforcement of draft registration. In Fiscal Year 2021 (the most recent year reported), the SSS referred 238,679 names of nonregistrants to the DOJ. None were investigated or prosecuted.

Nonregistration is only a crime if it was “knowing and willful”. Proving knowledge and willfulness requires labor-intensive personal notice before each prosecution. Most nonregistrants didn’t know they were supposed to register, have committed no crime, and couldn’t be prosecuted.

2. The negative consequences of nonregistration have been exaggerated and don’t justify this bill.

Congress repealed the requirement to register with the SSS for Federal student aid in 2020. California repealed the requirement to register with the SSS for state Cal Grants for higher education in 2021. Legislation has been proposed in Congress to end registration and abolish the SSS.

Denial of Federal jobs or naturalization requires evidence that nonregistration was “knowing and willful”. In most cases, there is no such evidence, and nonregistrants are eligible for Federal jobs if they swear they didn’t know they were supposed to register. According to the Federal Office of Personnel Management, only 1% of cases of nonregistrants adjudicated by OPM result in denial of Federal employment.

3. California should not be using state resources to enforce the Military Selective Service Act.

Federal laws should be enforced by the Federal government, at Federal expense. If the Federal government chooses not to enforce the provisions of Federal criminal laws, California should not try to take over enforcement of those Federal laws. This would set a dangerous precedent for claims of “states rights” and overreach of state authority.

Registration for a military draft is irrelevant to the purpose of driver’s licenses: road safety. The only reason to use driver’s licenses as the primary mechanism for enforcement of draft registration is as a short-cut to evade Federal court proceedings and due-process rights.

Selective Service registration data is given automatically to military recruiters. The Department of Motor Vehicles shouldn’t be used as a military recruiting agency.

California is not alone in choosing not to use its state Vehicle Code to enforce the Military Selective Service Act. Other states that don’t link driver’s licenses to Selective Service registration include Oregon, Pennsylvania, New Jersey, and Massachusetts.

The California Constitution prohibits using vehicle funds for unrelated purposes. SB-1081 would require startup funding from the Federal government, but no such funds are available, and the bill makes no provision for ongoing funding after the startup.

4. Extrajudicial state sanctions for nonregistration with the SSS deny due process and other rights.

SB-1018 does not recognize the presumption that applicants for driver’s licenses are innocent of Federal crimes (with which they have neither been charged nor convicted) or give them their day in court.

The requirement to register with the SSS would be enforced by the DMV with no opportunity for judicial review of the Constitutionality of the underlying registration requirement or of preparation for a military draft for undeclared wars.

5. The “opt-out” provision in SB-1081 is deceptive and entrapment.

Opting out of registration with the SSS would require signing a written admission of notice of the registration requirement. This would amount to a written confession of a Federal crime, obtained by the DMV without providing legal counsel or Miranda warnings. The DMV should not be interrogating driver’s license applicants about unrelated Federal crimes.

SB-1081 purports to restrict access to records of who opts out of being registered with the SSS, but this provision could be overridden by a Federal subpoena for evidence of knowing and willful nonregistration.

The state of California should not use false assurances of confidentiality to trick applicants for driver’s licenses into signing confessions of Federal crimes without benefit of a lawyer’s advice, Miranda warnings, or the right to remain silent.

6. Selective Service registration is a bad policy choice.

Draft registration is not needed. There’s no realistic scenario for a war the U.S. should be preparing to fight, but for which there wouldn’t be enough volunteers.

The only reason for draft registration is to enable and prepare for a draft. There are Constitutional objections to a draft for undeclared wars, pacifist and anti-war objections to preparation and planning for war, and civil libertarian objections to any system of conscription.

Many people have sincere religious objections to registering for the draft. This bill would force them to violate their conscience or sign a confession of a crime to get a driver’s license. There’s no provision in Federal law or SB-1081 for conscientious objection to registration.

Draft registration promotes the illusion that a draft is available as a “fallback”, which leads to unrealistic mobilization planning and enables planning for endless, unlimited wars that people would not volunteer to fight. Ending draft registration would deter war-making.

7. Only males (as assigned at birth) are currently required to register with the SSS. This is discriminatory.

California should not use state resources in support of a program that is explicitly anti-trans and that explicitly discriminates on the basis of gender.

Even if requiring only males (as assigned at birth) to register with the SSS is permitted under Federal law, using California state resources in support of such a discriminatory program would violate the California Constitution. Defending this bill against the inevitable lawsuits would require the state of California to argue in favor of sex discrimination and set dangerous state law precedents rolling back protections against sex discrimination in California.

Edward Hasbrouck maintains the Resisters.info website and publishes the “Resistance News” newsletter. He was imprisoned in 1983-1984 for organizing resistance to draft registration.