The History of U.S. Draft Registration

In a recent Vox post, Katherine Hicks stated,

. . . If [S.2943, the Senate version of the 2017 National Defense Authorization Act] becomes law, women turning 18 on or after January 1, 2018, will have to sign up for the Selective Service System.

Men have been required to do so since the Civil War, though the Selective Service System has only existed in its current form since 1980.[1]

The italicized phrase, however, oversimplifies the history of American draft registration, and seemingly – but erroneously – implies that male draft registration has been continuously required from the Civil War until today.  In fact, during the Civil War, the federal government probably did not require men to register for the draft.  During both world wars, the United States required men to register, but initially only on certain days.  Continuous registration, with men having to register upon turning 18, only began in World War II.

During the Civil War, draft registration, as we understand it, did not exist.  U.S. draft laws did require “enrol[ment] [of] all persons subject to military duty, noting their respective places of residence, ages on the first day of July following, and their occupation . . . .”[2]  However, this enrollment or registration “was on a personal canvass basis in which the enrolling officer went from house-to-house to enroll all potential draftees.”[3]  Conducted by the Bureau of the Provost Marshal General, this enrollment began in mid-1863,[4] and apparently ended soon after Appomattox.[5]

Although U.S. Civil War draft laws did criminalize draft resistance,[6] failing to report for induction,[7] and forcible interference with enrollment,[8] they apparently did not penalize mere failure to register for the draft.  Brigadier General James Oakes, who administered the Union draft in Illinois, implied as much in an 1865 report to the Provost Marshal General.  After noting that the Civil War enrollment involved “endeavoring to search out and hunt up every person liable to military service, through the agency of a vast multitude of petty enrolling officers,” Oakes instead recommended that, in any future American draft, “the government should impose its supreme demands directly upon the people themselves, and require them, under the sternest penalties, to report themselves for enrolment.”[9]  Notably, Oakes also stated that “the errors contained in [Civil War] enrolments were not due so much to remissness on the part of enrolling officers, (some of whom, doubtless, were incompetent and unfaithful,) as to grave defects in the laws themselves under which they acted.”[10]  This statement implies the Civil War draft laws did not contain the legal machinery required to implement Oakes’ preferred system of requiring individuals to register with the government.  In other words, those laws neither required anyone to register, nor penalized any person’s failure to do so.

In World War I, the United States adopted Oakes’ recommendation of mandatory draft registration.  Under the Selective Draft Act,[11] men subject to conscription primarily registered en masse on days designated by presidential proclamations.[12]  None of these proclamations, however, required ongoing registration of men as they turned 18.[13]  Hence, registration largely “ended” even before the draft expired.  Admittedly, a few men, who were outside the United States on the designated registration dates, may have registered afterward.[14]  Nevertheless, because the World War I Selective Service system, which received and processed the registrations, closed on July 15, 1919,[15] nobody could have registered after this date.

Under the authority of the Selective Training and Service Act,[16] American draft registration restarted in 1940, and continued through World War II.  Initially, this draft, like its World War I-era predecessor, registered men en masse on days specified by presidential proclamations.[17]  However, the last three registration proclamations also mandated continuous registration, requiring any man, who turned 18 after the last designated registration days, to register on his eighteenth birthday.[18]  Since these proclamations were never revoked, registration at age 18 remained mandatory until the Selective Training and Service Act expired on March 31, 1947.[19]

Less than two years later, President Truman decreed the resumption of draft registration under (what is now) the Military Selective Service Act.[20]  Truman’s proclamation mandated mass registration of persons aged 18-26 on designated days, and required any man “born on or after September 19, 1930,” to register on his birthday “or within five days thereafter.”  Subsequent proclamations extended draft registration to the Canal Zone and Guam,[21] and required registration of both U.S. citizens residing overseas[22] and resident aliens who entered U.S. territory.[23]  In 1975, President Ford revoked the previously-issued registration proclamations, “thereby terminating the present procedures for registration under the Military Selective Service Act, as amended.”[24]  By proclamation of President Carter, however, draft registration restarted in 1980,[25] and has continued to the present day.

[1] Katherine Hicks, Like It Or Not, Gender Equality May Soon Come to the U.S. Military Draft, Vox (Jun. 15, 2016, 3:20 PM), http://www.vox.com/2016/6/15/11944602/women-join-military-draft-senate-bill.  The provision in question is S.2943, 114th Cong. § 591 (as passed by Senate, Jun. 14, 2016), available at https://www.congress.gov/114/bills/s2943/BILLS-114s2943pcs.pdf.

[2] Act of Mar. 3, 1863, ch. 75, § 9, 12 Stat. 731, 732-33.

[3] William L. Shaw, The Civil War Federal Conscription and Exemption System, 32 Judge Advoc. J. 1, 11 (1962).  See also Kristy N. Kamarck, Cong. Research Serv., R44452, The Selective Service System and Draft Registration: Issues for Congress 2 (2016) (“Enrolment was done by government agents on a door-to-door basis . . . .”).

[4] See Final Report Made to the Secretary of War By the Provost Marshal General, pt. I, at 16 (Washington, Gov. Printing Off. 1866) (“The enrolment was commenced about the 25th of May, 1863 . . . .”).

[5] See id. at 46 (noting that “orders were issued on the 13th of April, 1865, to discontinue the business of recruiting and drafting”); id. at 22 (“[W]hen the business of the bureau was practically stopped in April, 1865, the enrolment was as nearly correct as it can well be made under existing laws.”).  By federal statute, the Bureau terminated on August 28, 1866.  See Act of Jul. 28, 1866, ch. 299, § 33, 14 Stat. 332, 337 (“[T]he provost-marshal-general’s office and bureau shall be continued only so long as the Secretary of War shall deem necessary, not exceeding thirty days after the passage of this act.”).

[6] See Act of Mar. 3, 1863, ch. 75, § 25, 12 Stat. 731, 735.

[7] See id. § 13, 12 Stat. at 733.

[8] See Act of Feb. 24, 1864, ch. 13, § 12, 13 Stat. 6, 8.

[9] Final Report Made to the Secretary of War By the Provost Marshal General, pt. II, at 25 (Washington, Gov. Printing Off. 1866).

[10] Id. at 24 (emphasis added).

[11] Act of May 18, 1917, Ch. 15, 40 Stat. 76-83.

[12] See Second Report of the Provost Marshal General 22-38 (1919) (discussing these registrations).

[13] See Proc. of May 18, 1917, 40 Stat. 1664-67; Proc. of Jun. 27, 1917, 40 Stat. 1674; Proc. of Jun. 30, 1917, 40 Stat. 1679-80; Proc. of Jul. 2, 1917, 40 Stat. 1680-81; Proc. of May 20, 1918, 40 Stat. 1781-85; Proc. of Jun. 11, 1918, 40 Stat. 1793-96; Proc. of Jun. 17, 1918, 40 Stat. 1796-1799; Proc. of Jun. 17, 1918, 40 Stat. 1799-1802; Proc. of Aug. 13, 1918, 40 Stat. 1834-37; Proc. of Aug. 31, 1918, 40 Stat. 1840-44; Proc. of Sept. 18, 1918, 40 Stat. 1851-54; Proc. of Oct. 7, 1918, 40 Stat. 1860-63; Proc. of Oct. 10, 1918, 40 Stat. 1856-59.

[14] See, e.g., Proc. of Aug. 31, 1918, 40 Stat. 1840-44 (“Any person who . . . on account of absence without the territorial limits of the United States, may be unable to comply with the regulations pertaining to absentees, shall, within five days after reaching the United States, register . . . .”).

[15] See Final Report of the Provost Marshal General 13 (1920) (“By July 15 [in 1919] . . . the last act of the selective-service system had been performed and the organization terminated as of that day.”).

[16] 50 U.S.C. app. §§ 301-316 (1946).

[17] See Selective Service Sys., Special Monograph No. 4, Registration and Selective Service 63-83 (1946).

[18] See Proc. No. 2572, Nov. 17, 1942, § 1(d), 56 Stat. 1982, 1984; Proc. No. 2597, Oct. 26, 1943, § 1(b), 57 Stat. 755, 756; Proc. No. 2620, Sept. 17, 1944, § 1(b), 58 Stat. 1150, 1152. Although the continuous-registration mandate of Proclamation 2572 only applied “During the continuance of the present war,” Ludecke v. Watkins, 335 U.S. 160, 169-70 (1948), held that a state of war continued at least through June 21, 1948.

[19] See 50 U.S.C. app. § 302, 316 (1946) (authorizing registration, and providing for its expiration “at 12 o’clock post-meridian on March 31, 1947”); Youths to Register at Eighteen Years, Boise City News, Feb. 13, 1947, at 1 (“It has been pointed out be [sic] the local selective board, that some men becoming eighteen years of age are not familiar with their responsibility and duty to register with the Selective Service Board upon attaining that age.”).

[20] 50 U.S.C. app. §§ 451-472 (2012 & Supp. II 2014).

[21] See Proc. No. 2937, Aug. 16, 1951, 65 Stat. c27-c29; Proc. No. 2938, Aug. 16, 1951, 65 Stat. c30-c32.

[22] See Proc. No. 2972, Apr. 17, 1952, 66 Stat. c28-c30.

[23] See Proc. No. 2942, Aug. 30, 1951, 65 Stat. c35-c37.

[24] Proc. No. 4360, Mar. 29, 1975, 89 Stat. 1255.

[25] See Proc. No. 4771, Jul. 2, 1980, 94 Stat. 3775-76.

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