Pass in Review: Due Process and Judicial Scrutiny of Classification Decisions of the Selective Service System
32 Pages Posted: 26 May 2008
Judicial review of Selective Service classification decisions has passed through three broadening stages. Until the end of the Second World War, the only question the courts asked was whether the registrant's local draft board had acted in excess of its jurisdiction. From 1946 through the late 1960s, the courts asked whether the local board's decision was supported by a basis in fact, and federal judges searched registrants' selective service files to see whether 'they' could find one. Beginning in the late 1960s, more and more courts began to demand that local draft boards state the reasons for their decisions. The result was a more searching examination of local boards' decisions and a dramatic decline in conviction rates because so many decisions were found wanting. The courts justified the new requirement on grounds of facilitation of both administrative decisions and judicial review. This article suggests that the courts should instead base the statement-of-reasons requirement squarely on the Due Process Clause. The Selective Service System determines whether a person shall be required involuntarily to serve two years in the military, possibly at the risk of life and limb. Those deprivations are as real and as severe as any to which the Due Process Clause is addressed.
Keywords: selective service, statement of reasons, classification, judicial review of administrative decisions
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