Justifications for excluding women from the Military selective service act (MSSA).

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AGN 172 – WR Final Examination

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Justifications for Excluding Women from the Military Selective Service Act (MSSA)

One of the main defenses for allowing Selective Service registration to exclude females is for lack for a better explanation, because U.S.  Congress drafted the statute to exclude women.  Article I, section 8 of the Constitution commits exclusively to the Congress the powers to raise and support armies, provide and maintain a Navy.  Moreover, Congress is granted to authority to make rules for Government and regulation of the land and naval forces.  Pursuant to these powers it lies within the discretion of the Congress to determine the occasions for expansion of our Armed Forces, and the means best suited to such expansion should it prove necessary.  Such power is almost absolute because for centuries, the U.S.  Supreme Court has taken the position that the constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end is broad and sweeping.

In the Military Selective Service Act (MSSA), Congress established procedures for maintaining “adequate armed strength to insure the security of [the] Nation” and for responding to war or other national emergency.  Although the MSSA provides separately for registration and for conscription (and attendant classification), the processes are interlocked.  Thus, Section 453 empowers the President to require by proclamation the registration of “every male citizen” and male resident alien “between the ages of eighteen and twenty-six,” and Section 454(a) renders individuals “required to register liable for training and service in the Armed Forces” upon the issuance of an induction notice.  Section 454 further provides that every registrant shall be “immediately liable for classification and examination, and shall, as soon as practicable following his registration, be so classified and examined, both physically and mentally, in order to determine his availability for induction for training and service in the Armed Forces.”

Not only is the scope of Congress’ constitutional power in this area broad, but the lack of competence on the part of the courts is marked.  Furthermore, the U. S.  Supreme Court has flat out stated, “it is difficult to conceive of an area of governmental activity in which the courts have less competence.  The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches.”  Furthermore, the U.S.  Supreme Court has taken the position that the needs of the American people would be better served by the operation of a healthy deference to legislative and executive judgments in the area of military affairs.

Distinction between employment-related benefits and other forms of government largesse may be relevant to equal protection analysis, for example in determining whether the differential treatment of survivor’s benefits denigrates the efforts of the deceased spouse.  Despite the Supreme Court protestations of the legality of the discrimination, the Court failed to discern that the Constitution is not indifferent to a statute that conditions the availability of noncontributory welfare benefits based on gender.  Consequently, the Supreme Court’s justification for the upholding of the MSSA lacks merit because such it is a violation of the U.S.  Constitution, as well as the United State’s international obligation to provide benefits to families whose dependent children have been deprived of parental support by an unemployment of the father but denying benefits because of unemployment of the mother.

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Women as a group, however, unlike men as a group, are not eligible for combat.  Until very recently, the restrictions on the participation of women in combat in the Navy and Air Force were statutory.  Under 10 U.S.C.  § 6015 (1976 ed., Supp.  III), “women may not be assigned to duty on vessels or in aircraft that are engaged in combat missions,” and under 10 U.S.C.  § 8549 female members of the Air Force “may not be assigned to duty in aircraft engaged in combat missions.”  The Army and Marine Corps precluded the use of women in combat as a ...

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