Written By Spring 2021 M-VETS Student Advisor Henry Chen.

In March 2020, the congressionally chartered National Commission on Military, National, and Public Service released its Final Report.[1] The report recommended requiring women to register for selective service, while also proposing various efforts to expand voluntary military and national service opportunities.[2] These recommendations appear to be gaining support in Congress, with enactment in the near future a realistic possibility.

Background:

In 1973, the U.S. military ended the draft, transitioning to an all-volunteer force which endures to this day. Proponents of the all-volunteer force note that it has enabled the services to raise recruiting standards, creating a self-motivated force of unparalleled professionalism.[3] However, critics of the current system note that the burden of the past two decades of endless war have fallen disproportionately upon the declining share of (largely middle and working class) Americans qualified and willing to serve in the armed forces.[4] Others point to increasing challenges in recruitment and the growing civil-military divide as arguments that the current system is unsustainable.[5]

Concurrently, the Pentagon’s decision to lift the ban on women serving in combat arms billets beginning in 2015[6] fostered an intense debate on whether women should be required to register with the Selective Service System.[7] While the Senate version of the 2017 National Defense Authorization Act (NDAA) would have required women to register with the Selective Service System, this language was eventually left out of the final version of the bill.[8]

Two address the two issues above, the final version of the 2017 NDAA created the National Commission on Military, National, and Public Service (“the Commission”), a temporary federal agency.[9] The Commission was tasked with conducting “a review of the selective service process” as well as considering “methods to increase participation in military, national, and public service.”[10] The Commission, consisting of 11 members appointed by the President as well as majority and minority leadership in both chambers of Congress[11], was required to conduct public hearings across the country[12], and issue a final report containing its recommendations.[13]

Findings:

After two and a half years of extensive public engagement, the Commission issued its Final Report, containing its findings and recommendations on March 25, 2020.[14] Key recommendations from the Final Report included:

• Requiring women to register for selective service, while retaining the current selective service mechanism.[15]
• Increasing military outreach, particularly to areas with low-propensity to join the military.[16]
• Expanding educational opportunities during military service and developing strategies to recruit and retain in high-demand occupations (ex. cyber).[17]
• Expanding civic education programs in schools.[18]
• Significantly increasing non-military service opportunities in order to create “an expectation of service” by 2031.[19]

Notably, the report did not recommend universal national or military service. Hearings on the Final Report, delayed for a year due to the COVID-19 pandemic, were held before Senate Armed Services Committee on March 11, 2021, where the Commission’s recommendations appeared to be well received by senators of both parties.[20]

Prospects:

Most controversial among the Commission’s recommendations was requiring women to register for selective service. Many social conservatives have long opposed requiring women to register for a potential draft, seeing it as at odds with traditional gender roles.[21] Meanwhile, many liberals and libertarians oppose the selective service system altogether, viewing the idea of requiring individuals to serve during wartime as government overreach.[22] However escalating geopolitical conflict with China and Russia, coupled with the low percentage of American youths qualified for military service, may weigh in favor of expanding draft eligibility.[23] The current Chairman of the Joint Chiefs of Staff and other top military officials have long supported requiring women to register.[24]

Moreover, the issue of women and the draft could be decided judicially. In the 1981 case Rostker v. Goldberg, the Supreme Court had dismissed an equal protection challenge to male-only selective service registration reasoning that the primary purpose of the draft was to generate combat troops, and that “women as a group…are not eligible for combat.”[25] With the Pentagon’s decision to lift the ban on women in combat arms, the American Civil Liberties Union filed a fresh equal protection challenge to the male only draft.[26] While the Fifth Circuit upheld the male only draft, citing Rostker as binding precedent, a petition for cert is currently pending before the Supreme Court.[27] While the outcome of such a legal challenge is far from certain, it may place increasing pressure on Congress to expand draft eligibility through legislation.

The other recommendations in the Final Report are relatively non-controversial. However, they would require funding, at a time when the Department of Defense is facing potential budget cuts framed by some progressive Democrats as necessary to offset massive spending on COVID-19 relief.[28] Nevertheless, other factors do favor implementation of the Final Report’s recommendations. There is a general bipartisan consensus that concerns about the national debt cannot be allowed to hinder military readiness against growing threats from China and Russia.[29] 2020 saw the National Guard mobilized on an unprecedented scale due to COVID-19 and domestic unrest[30], while the recently enacted American Rescue Plan recovery bill includes significant funding for AmeriCorps expansion.[31] Finally, concern over declining national cohesion and the growing civil-military divide has led Senators and Representatives in both parties to view expanded service opportunities as a potential solution.[32]

While only time (and the FY 2022 NDAA) will tell, these emerging trends suggest bipartisan support for expanding military and national service in an era of increased domestic and international turmoil.

[1] The Final Report of the National Commission on Military, National, and Public Service, National Commission on Military, National, and Public Service (Mar. 25, 2020), https://www.inspire2serve.gov/sites/default/files/final-report/Final%20Report.pdf.

[2] Id.

[3] See, e.g., Dana T. Atkins, In defense of the all-volunteer force, Military Times (Feb. 04, 2021), https://www.militarytimes.com/opinion/commentary/2021/02/04/in-defense-of-the-all-volunteer-force/.

[4] See, e.g., Dennis Laich, A nation of draft dodgers, Military Times (Feb. 01, 2021), https://www.militarytimes.com/opinion/commentary/2021/02/01/a-nation-of-draft-dodgers/.

[5] See, e.g., George M. Reynolds, How Representative Is the All-Volunteer U.S. Military?, Council on Foreign Relations (Apr. 25, 2018), https://www.cfr.org/article/how-representative-all-volunteer-us-military.

[6] Emma Moore, Women in Combat: Five-Year Status Update, Center for a New American Security (Mar. 31, 2020), https://www.cnas.org/publications/commentary/women-in-combat-five-year-status-update.

[7] David Weigel, Senate votes to require the draft for women, as conservatives try to undo it, The Washington Post (June 15, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/06/15/senate-votes-to-require-the-draft-for-women-as-conservatives-try-to-undo-it/

[8]Jonathan M. Gaffney, Expanding the Selective Service: Legal Issues Surrounding Women and the Draft, Congressional Research Service, (Sep. 14, 2020) at 3, https://crsreports.congress.gov/product/pdf/LSB/LSB10491

[9] P.L. 114-328, §§ 551-57.

[10] P.L. 114-328, § 551(a).

[11] P.L. 114-328, § 553(b).

[12] P.L. 114-328, § 554.

[13] P.L. 114-328, § 555.

[14] The Final Report of the National Commission on Military, National, and Public Service, National Commission on Military, National, and Public Service (Mar. 25, 2020), https://www.inspire2serve.gov/sites/default/files/final-report/Final%20Report.pdf.

[15] Id. at 8.

[16] Id. at 34-38.

[17] Id. at 39-43.

[18] Id. at 17-21.

[19] Id. at 1.

[20] Final Recommendations and Report of the National Commission on Military, National, and Public Service, U.S. Senate Committee on Armed Services (Mar. 11 2021), https://www.armed-services.senate.gov/hearings/21-03-11-final-recommendations-and-report-of-the-national-commission-on-military-national-and-public-service.

[21] See, e.g., Richard Lardner, GOP blocks provision to require women to register for draft, Associated Press (May 17, 2016) https://apnews.com/article/f9f2bc74db4d4b7992916561e37fd9fe.

[22] See, e.g., Rebecca Kheel, Left divided over women registering for the draft, The Hill (May, 15, 2016), https://thehill.com/policy/defense/279870-left-divided-over-women-registering-for-the-draft.

[23] Leo Shane III, Support for making women register in the draft, but none for mandatory military service, commission says, Military Times (Mar. 11, 2021), https://www.militarytimes.com/news/pentagon-congress/2021/03/11/support-for-making-women-register-in-the-draft-but-none-for-mandatory-military-service-commission-says/.

[24] Patricia Zengerle, Top U.S. generals: Women should have to register for draft, Reuters (Feb. 2, 2016), https://www.reuters.com/article/us-usa-military-women/top-u-s-generals-women-should-have-to-register-for-draft-idUSKCN0VB1UR.

[25] Rostker v. Goldberg, 453 U.S. 57, 76 (1981).

[26] Alexandra Kelley, Supreme Court asked to declare the all-male military draft unconstitutional, The Hill (Feb. 19 2021), https://thehill.com/changing-america/respect/equality/539575-supreme-court-asked-to-declare-the-all-male-military-draft.

[27] Id.

[28] Rebecca Kheel, Battle heats up over Pentagon spending plans, The Hill (Mar. 21, 2021), https://thehill.com/policy/defense/544126-battle-heats-up-over-pentagon-spending-plans.

[29] Joe Gould, US military may sidestep big budget cuts backed by progressives, (Feb. 25, 2021), https://www.defensenews.com/congress/2021/02/25/us-military-may-sidestep-budget-cuts-backed-by-progressives/.

[30] Alex Horton, Pandemic and unrest fuel the biggest National Guard mobilization since World War II, The Washington Post (Dec. 24, 2020), https://www.washingtonpost.com/national-security/2020/12/24/national-guard-response/.

[31] Mary Tobin and Rye Barcott, Why Biden COVID relief plan will fuel public service in America, USA Today (Mar. 12, 2021), https://www.usatoday.com/story/opinion/2021/03/12/biden-covid-relief-plan-welcome-stimulus-public-service-column/6953629002/.

[32] See, e.g., Final Recommendations and Report of the National Commission on Military, National, and Public Service, U.S. Senate Committee on Armed Services (Mar. 11 2021), https://www.armed-services.senate.gov/hearings/21-03-11-final-recommendations-and-report-of-the-national-commission-on-military-national-and-public-service.