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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Selective Service
Box: 49
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
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Salective service
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case. at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been pre-
pared by the Reporter of Decisions for the convenience of the reader. See
United States V. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
SELECTIVE SERVICE SYSTEM ET AL. v. MINNESOTA
PUBLIC SERVICE RESEARCH GROUP ET AL.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF MINNESOTA
No. 83-276. Argued April 23, 1984-Decided July 5, 1984
Section 1113 of the Department of Defense Authorization Act of 1983,
which added § 12(f) to the Military Selective Service Act, denies federal
financial assistance under Title IV of the Higher Education Act of 1965
to male students between the ages of 18 and 26 who fail to register for
the draft. Section 1113(f)(2) requires applicants for Title IV assistance
to file a statement with their institutions of higher education attesting to
their compliance with the Act and implementing regulations. A Presi-
dential Proclamation requires young men to register for the draft within
30 days of their 18th birthday. Failure to register within this time is a
criminal offense. The regulations permit late registrants to establish el-
igibility for Title IV assistance. Appellee students (hereafter appel-
lees), who have not registered for the draft, brought suits in Federal
District Court seeking to enjoin the enforcement of § 1113. The District
Court granted the requested relief, holding that the regulations making
late registrants eligible for Title IV aid were inconsistent with the stat-
ute, and that § 1113 is an unconstitutional bill of attainder because it sin-
gles out an identifiable group that would be ineligible for Title IV aid
based on their failure to register. Alternatively, the District Court held
that § 1113 also violated appellees' Fifth Amendment privilege against
compelled self-incrimination.
Held:
1. Section 1113 is not a bill of attainder. Pp. 4-14.
(a) A bill of attainder is "a law that legislatively determines guilt
and inflicts punishment upon an identifiable individual without provision
of the protections of a judicial trial." Nixon V. Administrator of Gen-
eral Services, 133 U. S. 425. 468. Pp. 4-5.
I
II
SELECTIVE SERVICE v. MINN. PUBL. INT. RES. GP.
Syllabus
(b) Section 1113 does not single out nonregistrants and make them
ineligible for Title IV aid based on their past conduct, i.e., failure to reg-
ister. The section does not require registration within the time fixed by
the Presidential Proclamation and does not make late registrants ineligi-
ble for aid. The contrary view is inconsistent with § 1113's structure
and with the legislative history. Section 1113 clearly gives nonregis-
trants 30 days after receiving notice that they are ineligible for Title IV
aid to register for the draft and qualify for aid. The legislative history
shows that Congress' purpose in enacting § 1113 was to encourage reg-
istration by those who must register but have not yet done so. Section
1113's requirements are not irreversible but can be met readily by either
timely or late registration. Cummings V. Missouri, 4 Wall. 277, and Ex
parte Garland, 4 Wall. 333, distinguished. Pp. 5-9.
(c) Section 1113 does not inflict punishment within the meaning of
the Bill of Attainder Clause. It imposes none of the burdens historically
associated with punishment. It does not even deprive appellees of Title
IV benefits permanently, since it leaves open perpetually the possibility
of qualifying for aid. Pp. 10-11.
(d) The legislative history shows that § 1113 was intended to further
nonpunitive legislative goals. Conditioning receipt of Title IV aid on
draft registration is plainly a rational means to improve compliance with
the registration requirements. Section 1113 also promotes a fair alloca-
tion of scarce federal resources by limiting Title IV aid to those who are
willing to meet their responsibilities to the United States by registering
for the draft when required to do so. Pp. 11-14.
2. Section 1113 does not violate appellees' Fifth Amendment privilege
against compelled self-incrimination. Since a student who has not regis-
tered for the draft is bound to know that he would be denied Title IV aid.
he is no sense under any "compulsion" to seek that aid and has no reason
to make any statement to anyone as to whether or not he has registered.
As to a late registrant, since the law does not require him to disclose to
his educational institution whether or not he registered late, he is not
required to disclose any incriminating information in order to become eli-
gible for aid. The fact that appellees must register late in order to get
Title IV aid and thus reveal to the Selective Service their failure to com-
ply timely with the registration requirements does not violate appellees'
Fifth Amendment rights. They have not been denied the opportunity
to register and have not been disqualified for financial aid for asserting a
constitutional privilege. Lefkowitz V. Turiey, 414 U.S. 70, distin-
guished. Appellees, not having sought to register, have had no occasion
to assert their Fifth Amendment privilege when asked to state their
dates of birth. nor has the Government refused any request for immunity
for their answers or otherwise threatened them with penalties for invok-
SELECTIVE SERVICE v. MINN. PUBL. INT. RES. GP.
III
Syllabus
ing the privilege. Under these circumstances, appellees will not be
heard to complain that § 1113 violates their Fifth Amendment rights by
forcing them to acknowledge during the draft registration process they
have avoided that they have registered late. Pp. 14-16.
557 F. Supp. 937, reversed.
BURGER, C.J., delivered the opinion of the Court, in which WHITE,
REHNQUIST, STEVENS, and O'CONNOR, JJ., joined, and in Parts I, II-B,
III, and IV of which POWELL, J., joined. POWELL, J., filed an opinion
concurring in part and concurring in the judgment. BRENNAN and MAR-
SHALL, JJ., filed dissenting opinions. BLACKMUN, J., took no part in the
decision of the case.
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions. Supreme Court of the United States. Wash-
ington, D. C. 20543, of any typographical or other formal errors. in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
No. 83-276
SELECTIVE SERVICE SYSTEM ET AL. v. MINNESOTA
PUBLIC INTEREST RESEARCH GROUP ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MINNESOTA
[July 5, 1984]
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We noted probable jurisdiction to decide (a) whether § 1113
of the Department of Defense Authorization Act of 1983,
which denies federal financial assistance under Title IV of the
Higher Education Act of 1965 to male students who fail to
register for the draft under the Military Selective Service
Act, is a Bill of Attainder; and (b) whether § 1113 compels
those students who elect to request federal aid to incriminate
themselves in violation of the Fifth Amendment.
I
Section 3 of the Military Selective Service Act, 50 U. S. C.
App. § 453, empowers the President to require every male
citizen and male resident alien between the ages of 18 and 26
to register for the draft. Section 12 of that Act imposes
criminal penalties for failure to register. On July 2, 1980,
President Carter issued a Proclamation requiring young men
to register within 30 days of their 18th birthday. Presiden-
tial Proclamation No. 4771, 3 CFR 82 (1981).
Appellees are anonymous individuals who were required to
register before September 1, 1982. On September 8, Con-
gress enacted the Department of Defense Authorization Act
of 1983, Pub. L. 97-252, 96 Stat. 718. Section 1113(f)(1) pro-
vides that any person who is required to register and fails to
do SO "in accordance with any proclamation" issued under the
83-276-OPINION
2
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
Military Selective Service Act "shall be ineligible for any
form of assistance or benefit provided under title IV of the
Higher Education Act of 1965."¹ Section 1113(f)(2) requires
applicants for Title IV assistance to file with their institu-
tions of higher education a statement attesting to their com-
pliance with the draft registration law and regulations issued
under it. Sections 1113(f)(3) and (4) require the Secretary of
Education, in agreement with the Director of Selective Serv-
ice, to prescribe methods for verifying such statements of
compliance and to issue implementing regulations.
Regulations issued in final form on April 11, 1983, see 48
Fed. Reg. 15578, provide that no applicant may receive Title
IV aid unless he files a statement of compliance certifying
that he is registered with the Selective Service or that, for a
specified reason, he is not required to register. 34 CFR
§ 668.24(a) (1983). The regulations allow a student who has
not previously registered, although required to do so, to es-
tablish eligibility for Title IV aid by registering, filing a
statement of registration compliance, and, if required, verify-
ing that he is registered. § 668.27(b)(1). The statement of
compliance does not require the applicant to state the date
that he registered.2
1 Section 1113 added § 12(f) to the Military Selective Service Act, 50
U.S.C. . § 462(f).
Title IV of the Higher Education Act of 1965, 20 U. S. C. § 1070 et seq.,
provides financial assistance to qualified students in postsecondary educa-
tional programs. Title IV aid is available at both colleges and universities,
as well as at numerous kinds of business, trade and technical schools.
§§ 1085(b), (c), 1088.
The Regulations include a model statement of registration compliance
that the Secretary of Education has indicated satisfy the requirements of
34 CFR § 668.24(a) (1983):
"STATEMENT OF EDUCATIONAL PURPOSE/
REGISTRATION COMPLIANCE
"
I certify that I am not required to be registered with Selective
Service, because:
83-276-OPINION
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
3
In November 1982 the Minnesota Public Interest Research
Group filed a complaint in the United States District Court
for the District of Minnesota seeking to enjoin the operation
of § 1113. The District Court dismissed the Minnesota
Group for lack of standing but allowed three anonymous stu-
dents to intervene as plaintiffs. 557 F. Supp. 923 (1983); 557
F. Supp. 925 (1983). The intervenors alleged that they re-
side in Minnesota, that they need financial aid to pursue their
educations, that they intend to apply for Title IV assistance,
and that they are legally required to register with the Selec-
tive Service but have failed to do SO. This suit was infor-
mally consolidated with a separate action brought by three
other anonymous students making essentially the same alle-
gations as the intervenors.
In March 1983 the District Court granted a preliminary in-
junction restraining the Selective Service System from en-
forcing § 1113. After finding that appellees had demon-
strated a threat of irreparable injury, the court held that
appellees were likely to succeed on the merits. First, the
District Court thought it likely that § 1113 was a Bill of At-
tainder. The court interpreted the statutory bar to student
aid as applicable to students who registered late. Thus in-
terpreted, the statute "clearly singles out an ascertainable
group based on past conduct" and "legislatively determines
"
I
am female.
"
I am in the armed services on active duty (Note: Members of the
Reserves and National Guard are not considered on active duty.)
"
I have not reached my 18th birthday.
"
I
was born before 1960.
44
I am a permanent resident of the Trust Territory of the Pacific Is-
lands or the Northern Mariana Islands.
"
I certify that I am registered with Selective Service.
"Signature:
"Date:
"NOTICE: You will not receive title IV financial aid unless you com-
plete this statement and, if required, give proof to your school of your reg-
istration compliance. 34 CFR § 668.25 (1983).
83-276-OPINION
4
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
the guilt of this ascertainable group." Doe V. Selective Serv-
ice System, 557 F. Supp. 937, 942, 943 (1983). The court
viewed the denial of aid as punishment within the meaning of
the Bill of Attainder Clause because it "deprives students of
the practical means to achieve the education necessary to
pursue many vocations in our society." Id., at 944. Second,
the District Court found it likely that § 1113 violated appel-
lees' Fifth Amendment privilege against compelled self-in-
crimination. In the District Court's view, the statement of
compliance required by § 1113 compels students who have not
registered for the draft and need financial aid to confess to
the fact of nonregistration, which is a crime. 50 U. S. C.
§ 462.
On June 16, 1983, the District Court entered a permanent,
nationwide injunction against the enforcement of § 1113.
The court held that the regulations making late registrants
eligible for aid were inconsistent with the statute and con-
cluded that the statute was an unconstitutional attainder. It
also held the statute to violate appellees' constitutional privi-
lege against compelled self-incrimination.
On June 29, we stayed the District Court's June 16 order
pending the timely docketing and final disposition of this ap-
peal. Selective Service System V. Doe, 463 U.S. -
We
noted probable jurisdiction on December 5, 1983, 464 U.S.
I
, and we reverse.
II
The District Court held that § 1113 falls within the cate-
gory of congressional actions that Art. I, § 9, cl. 3 of the Con-
stitution bars by providing that "[n]o Bill of Attainder
shall be passed." A Bill of Attainder was most recently de-
scribed by this Court as "a law that legislatively determines
guilt and inflicts punishment upon an identifiable individual
without provision of the protections of a judicial trial."
Nixon V. Administrator of General Services, 433 U.S. 425,
468 (1977); see United States V. O'Brien, 391 U. S. 367, 383,
n. 30 (1968); United States V. Lovett, 328 U.S. 303, 315
83-276-OPINION
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
5
(1946). The Government argues that § 1113 does not satisfy
any of these three requirements, i. e., specification of the af-
fected persons, punishment, and lack of a judicial trial.³
A
In forbidding Bills of Attainder, the draftsmen of the Con-
stitution sought to prohibit the ancient practice of the Parlia-
ment in England of punishing without trial "specifically des-
ignated persons or groups." United States V. Brown, 381
U. S. 437, 447 (1965). Historically, Bills of Attainder gener-
ally named the persons to be punished. However, "[t]he sin-
gling out of an individual for legislatively prescribed punish-
ment constitutes an attainder whether the individual is called
by name or described in terms of conduct which, because it is
past conduct, operates only as a designation of particular per-
sons." Communist Party of the United States V. Subversive
Activities Control Board, 367 U. S. 1, 86 (1961). When past
activity serves as "a point of reference for the ascertainment
of particular persons ineluctably designated by the legisla-
ture" for punishment, id., at 87, the Act may be an attainder.
See Cummings V. Missouri, 4 Wall. 277, 324 (1867).
In Cummings the Court struck down a provision of the
Missouri post-Civil War Reconstruction Constitution that
barred persons from various professions unless they stated
under oath that they had not given aid or comfort to persons
engaged in armed hostility to the United States and had
never "been a member of, or connected with, any order, so-
ciety, or organization, inimical to the government of the
3 We agree with the Government that the statute does not single out an
identifiable group and that the denial of Title IV aid does not constitute
punishment. The Government also argues that § 1113 does not dispense
with a judicial trial, noting that a hearing is provided in the event of dis-
agreement between the applicant and the Secretary about whether the ap-
plicant has registered, 96 Stat. 748 (subsection (f)(4)), and that the decision
made at that hearing is subject to judicial review. The Government's ar-
gument is meritless. Congress has not provided a judicial trial to those
affected by the statute.
83-276-OPINION
6
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
United States." Id., at 279. The Court recognized that
the oath was required, not "as a means of ascertaining
whether parties were qualified" for their professions, id., at
320, but rather to effect a punishment for having associated
with the Confederacy. Although the State Constitution did
not mention the persons or groups required to take the oath
by name, the Court concluded that in creating a qualification
having no possible relation to their fitness for their chosen
professions, the constitution was intended "to reach the per-
son, not the calling." Ibid.
On the same day that it decided Cummings, the Court
struck down a similar oath that was required for admission to
practice law in the federal courts. Ex parte Garland, 4
Wall. 333 (1867). Like the oath considered in Cummings,
the oath "operate[d] as a legislative decree of perpetual ex-
clusion" from the practice of law, id., at 377, since past affili-
ation with the Confederacy prevented attorneys from taking
the oath without perjuring themselves. See Cummings V.
Missouri, supra, at 327. In both Cummings and Garland,
the persons in the group disqualified were defined entirely by
irreversible acts committed by them.
The District Court in this case viewed § 1113 as comparable
to the provisions of the Reconstruction laws declared uncon-
stitutional in Cummings and Garland, because it thought the
statute singled out nonregistrants and made them ineligible
for aid based on their past conduct, i. e., failure to register.
To understand the District Court's analysis, it is necessary to
turn to its construction of the statute. The court noted that
§ 1113 disqualifies applicants for financial assistance unless
they have registered "in accordance with any proclamation is-
sued under [section 3 of the Military Selective Service Act],"
and that Proclamation No. 4771 requires those born after
January 1, 1963, to register within 30 days of their 18th birth-
day. See 3 CFR 82 (1981). In the court's view, the lan-
guage of § 1113, coupled with the Proclamation's 30-day reg-
istration requirement, precluded late registrants from
83-276-OPINION
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
7
qualifying for Title IV aid. Having construed § 1113 as pre-
cluding late registration, the District Court read the statute
to be retrospective, in that it denies financial assistance to an
identifiable group-nonregistrants-based on their past con-
duct. The District Court acknowledged that implementing
regulations would allow students who had not previously reg-
istered to become eligible for Title IV benefits by register-
ing, see 34 CFR § 668.27(b)(1) (1983), but the court declared
those regulations to be void because they conflicted with
what the District Court viewed as § 1113's requirement of
registration within the time prescribed by Proclamation No.
4771.
We reject the District Court's view that § 1113 requires
registration within the time fixed by Proclamation No. 4771.
That view is plainly inconsistent with the structure of § 1113
and with the legislative history. Subsection (f)(4) of the
statute requires the Secretary of Education to issue regula-
tions providing that "any person" to whom the Secretary pro-
poses to deny Title IV assistance shall be given notice of the
proposed denial and "not less than thirty days" after such no-
tice to "establis[h] that he has complied with the registration
requirement." 50 U. S. C. § 462(f)(4). The statute clearly
gives nonregistrants 30 days after receiving notice that they
are ineligible for Title IV aid to register for the draft and
qualify for aid. See 34 CFR § 668.27(b)(1) (1983). To re-
quire registration within the time fixed by the Presidential
Proclamation would undermine this provision allowing "any
person" 30 days after notification to establish compliance
with the registration requirement. This was clearly a grace
period.
The District Court also ignored the relevant legislative his-
tory. Congress' purpose in enacting § 1113 was to encourage
registration by those who must register, but have not yet
done so.' Proponents of the legislation emphasized that
128 Cong. Rec. H4757 (July 28, 1982) (remarks of Rep. Whitehurst);
id., at H4758 (remarks of Rep. Solomon); id., at H4770 (remarks of Rep.
83-276-OPINION
8
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
those failing to register timely can qualify for aid by regis-
tering late.⁵ The District Court failed to take account of
this legislative purpose. See Heckler V. Edwards, 465 U. S.
(1984). Nor did its construction of § 1113 give adequate
deference to the views of the Secretary of Education, who
had helped to draft the statute. Miller V. Youakim, 440
U.S. 125, 144 (1979); see 128 Cong. Rec. H4764 (July 28,
1982) (remarks of Rep. Solomon).
The judicial function is "not to destroy the Act if we can,
but to construe it, if consistent with the will of Congress, so
as to comport with constitutional limitations," CSC V. Letter
Carriers, 413 U. S. 548, 571 (1973).6 Section 1113 does not
make late registrants ineligible for Title IV aid.
Because it allows late registration, § 1113 is clearly distin-
guishable from the provisions struck down in Cummings and
Garland. Cummings and Garland dealt with absolute bar-
Stratton): id., at S4943 (May 12, 1982) (remarks of Sen. Hayakawa); id., at
S4945 (remarks of Sen. Jepsen).
'Id., at H4757 (July 28, 1982) (remarks of Rep. Whitehurst); id., at
H4758 (remarks of Rep. Simon); id., at H4769 (remarks of Rep. Montgom-
ery); id., at H4770 (remarks of Rep. Stratton). As Senator Stennis stated:
"I thought of the proposition here where some youngster might have
overlooked signing up or might have misunderstood it or had not been cor-
rectly informed, but he is not going to be penalized for that because he still
has complete control of the situation. All he will have to do is just to com-
ply with the law, and that will automatically make him eligible so far as this
prohibition or restriction is concerned." Id., at S4945 (May 12, 1982).
'As the Solicitor General points out, one construction of the statute
that avoids a constitutional problem is to make aid contingent on registra-
tion in the manner, but not the time, required by any proclamation. See
Presidential Proclamation No. 4771. 3 CFR 84 (1981) ("Persons who are
required to be registered shall comply with the registration procedures
and other rules and regulations prescribed by the Director of Selective
Service").
All of the appellees in this case had failed to comply with the registra-
tion requirements when § 1113 was enacted. As to 18-year-olds who have
entered the class of nonregistrants after August 9, 1982-30 days before
the enactment of $ 1113-the statute is clearly prospective; ineligibility for
83-276-OPINION
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
9
riers to entry into certain professions for those who could not
file the required loyalty oaths; no one who had served the
Confederacy could possible comply, for his status was irre-
versible. By contrast, § 1113's requirements, far from irre-
versible, can be met readily by either timely or late filing.
"Far from attaching to
past and ineradicable actions,"
ineligibility for Title IV benefits "is made to turn upon
continuingly contemporaneous fact" which a student who
wants public assistance can correct. Communist Party of
the United States V. Subversive Activities Control Board, 367
U. S., at 87.
B
Even if the specificity element were deemed satisfied by
§ 1113, the statute would not necessarily implicate the Bill of
Attainder Clause. The proscription against Bills of Attain-
der reaches only statutes that inflict punishment on the speci-
fied individual or group. In determining whether a statute
inflicts punishment within the proscription against Bills of
Attainder, our holdings recognize that the severity of a sanc-
tion is not determinative of its character as punishment.
Flemming V. Nestor, 363 U.S. 603, 616, and n. 9 (1960).
That burdens are placed on citizens by federal authority does
not make those burdens punishment. Nixon V. Adminis-
trator of General Services, 433 U. S., at 470; United States V.
Lovett, 328 U.S., at 324 (Frankfurter, J., concurring).8
Conversely, legislative intent to encourage compliance with
the law does not establish that a statute is merely the legiti-
mate regulation of conduct. Punishment is not limited solely
to retribution for past events, but may involve deprivations
inflicted to deter future misconduct. United States V.
financial aid is merely a deprivation in addition to potential criminal liabil-
ity for the failure to register for the draft.
"The fact that harm is inflicted by governmental authority does not
make it punishment. Figuratively speaking all discomforting action may
be deemed punishment because it deprives of what otherwise would be en-
joyed. But there may be reasons other than punitive for such depriva-
tion." 328 U. S., at 324.
83-276-OPINION
10
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
Brown, 381 U.S., at 458-459. It is thus apparent that,
though the governing criteria for an attainder may be readily
indicated, "each case has turned on its own highly particu-
larized context." Flemming V. Nestor, supra, at 616.
In deciding whether a statute inflicts forbidden punish-
ment, we have recognized three necessary inquiries: (1)
whether the challenged statute falls within the historical
meaning of legislative punishment; (2) whether the statute,
"viewed in terms of the type and severity of burdens im-
posed, reasonably can be said to further nonpunitive legisla-
tive purposes"; and (3) whether the legislative record
"evinces a congressional intent to punish." Nixon, supra, at
473, 475-476, 478. We conclude that under these criteria
§ 1113 is not a punitive Bill of Attainder.
1
At common law, Bills of Attainder often imposed the death
penalty; lesser punishments were imposed by bills of pains
and penalties. The Constitution proscribes these lesser pen-
alties as well those imposing death. Cummings V. Missouri,
4 Wall., at 323. Historically used in England in times of re-
bellion or "violent political excitements," ibid., bills of pains
and penalties commonly imposed imprisonment, banishment,
and the punitive confiscation of property. Nixon, supra, at
474. In our own country, the list of punishments forbidden
by the Bill of Attainder Clause has expanded to include legis-
lative bars to participation by individuals or groups in specific
employments or professions.
Section 1113 imposes none of the burdens historically asso-
ciated with punishment. As this Court held in Flemming V.
'See, e. g., United States V. Brown, 381 U. S. 437 (1965), in which Com-
munist Party members were barred from offices in labor unions; United
States V. Lovett, 328 U. S. 303 (1946), in which the law in question cut off
salaries to three named government employees; Cummings V. Missouri, 4
Wall. 277 (1867). in which a priest was disqualified from practicing as a
clergyman: and Er parte Garlard. 4 Wall. 333 (1867), in which lawyers
were barred from the practice of law.
83-276-OPINION
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
11
Nestor, 363 U. S., at 617, "the sanction is the mere denial of a
noncontractual governmental benefit. No affirmative dis-
ability or restraint is imposed," and Congress has inflicted
"nothing approaching the 'infamous punishment' of imprison-
ment" or other disabilities historically associated with
punishment.10
Congress did not even deprive appellees of Title IV bene-
fits permanently; appellees can become eligible for Title IV
aid at any time simply by registering late and thus "carry the
keys of their prison in their own pockets." Shillitani V.
United States, 384 U. S. 364, 368 (1966). A statute that
leaves open perpetually the possibility of qualifying for aid
does not fall within the historical meaning of forbidden legis-
lative punishment.
2
Our inquiry does not end with a determination that § 1113
does not inflict punishment in its historical sense. To ensure
that the legislature has not created an impermissible penalty
not previously held to be within the proscription against Bills
of Attainder, we must determine whether the challenged
statute can be reasonably said to further nonpunitive goals.
Nixon, 433 U. S., at 475-476.
10 Appellees argue that the underpinnings of Flemming have been re-
moved by Goldberg V. Kelly, 397 U. S. 254, 262 (1970), and Mathews V.
Eldridge, 424 U. S. 319, 332 (1976). Goldberg held only that public assist-
ance "benefits are a matter of statutory entitlement for persons qualified to
receive them," 397 U.S., at 262, and that Due Process affords qualified
recipients a pre-termination evidentiary hearing to guard against errone-
ous termination. The Court stressed that "the crucial factor in this con-
text
is that termination of aid pending resolution of a controversy over
eligibility may deprive an eligible recipient of the very means by which to
live while he waits." Id., at 264 (emphasis in original). Mathews reached
the same conclusion with respect to disability benefits. Even Flemming
noted that the interest of a covered employee under the Social Security Act
"fall[s] within the protection from arbitrary governmental action afforded
by the Due Process Clause," 363 U. S., at 611, while holding that Con-
gress' disqualification of certain deportees from receipt of Social Security
benefits was not an attainder, id., at 617.
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SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
The legislative history reflects that § 1113 represents the
considered congressional decision to further nonpunitive leg-
islative goals. Congress was well aware that more than half
a million young men had failed to comply with the registra-
tion requirement." The legislators emphasized that one of
the primary purposes of § 1113 was to encourage those re-
quired to register to do so."
Conditioning receipt of Title IV aid on registration is
plainly a rational means to improve compliance with the reg-
istration requirement. Since the group of young men who
must register for the draft overlaps in large part with the
group of students who are eligible for Title IV aid, 13 Congress
reasonably concluded that § 1113 would be a strong tonic to
many nonregistrants.
Section 1113 also furthers a fair allocation of scarce federal
resources by limiting title IV aid to those who are willing to
meet their responsibilities to the United States by register-
ing with the Selective Service when required to do so. As
one Senator stated:
"This amendment seeks not only to increase compliance
with the registration requirement but also to insure the
most fair and just usage of Federal education benefits.
During these times of extreme budgetary constraints,
times when even the most worthwhile programs are cut
back drastically, this Government has every obligation
11 See, e. g., 128 Cong. Rec. H4758 (July 28, 1982) (remarks of Rep. Solo-
mon); id., at S4945 (May 12, 1982) (remarks of Sen. Jepsen).
12 See id., at H4758 (July 28, 1982) (remarks of Rep. Solomon); id., at
H4770 (remarks of Rep. Stratton); id., at S4943 (May 12, 1982) (remarks
of Sen. Hayakawa); id., at S4945 (remarks of Sen. Stennis); ibid. (remarks
of Sen. Jepsen).
The Military Selective Service Act, 50 U.S. C. § 453, requires certain
males between the ages of 18 and 26 to register. Those who fail to regis-
ter, though required to do so, are a significant part of the class to which
Title IV assistance is otherwise offered. Title IV aid is available for a
broad range of postsecondary educational programs at colleges, universi-
ties, and vocational schools. 20 U. S. C. $ 1085(a): see n. 1, supra.
83-276-OPINION
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
13
to see that Federal dollars are spent in the most fair and
prudent manner possible.
If students want to fur-
ther their education at the expense of their country, they
cannot expect these benefits to be provided without ac-
cepting their fair share of the responsiblities to that
Government."
Certain aspects of the legislation belie the view that § 1113
is a punitive measure. Section 1113 denies Title IV benefits
to innocent as well as willful nonregistrants. Yet punitive
legislation ordinarily does not reach those whose failure to
comply with the law is not willful. Thus, in stressing that
the legislation would reach unintentional violators, 128 Cong.
Rec. H4757 (July 28, 1982) (remarks of Rep. Solomon); id., at
H4759 (remarks of Rep. Simon); id., at S4945 (May 12, 1982)
(remarks of Sen. Stennis), proponents indicated that they in-
tended to regulate all nonregistrants, rather than to single
out intentional nonregistrants for punishment. In this same
nonpunitive spirit, Congress also allowed all nonregistrants
to qualify for Title IV aid simply by registering late, instead
of choosing to punish willful nonregistrants by denying them
benefits even if they registered belatedly.
We see therefore that the legislative history provides con-
vincing support for the view that, in enacting § 1113, Con-
gress sought, not to punish anyone,15 but to promote compli-
14 128 Cong. Rec. S4943-S4944 (May 12, 1982) (remarks of Sen. Haya-
kawa); see also id., at S4943 (remarks of Sen. Mattingly); id., at H4757
(July 28, 1982) (remarks of Rep. Montgomery).
LB Applying the third part of the Nixon test, the District Court concluded
that § 1113 is a punitive measure. But the District Court relied in part on
the statements of legislators who opposed the statute because they thought
the statute punished nonregistrants. 128 Cong. Rec. H4760 (July 28,
1982) (remarks of Rep. Edgar); id., at H4761 (remarks of Rep. Goldwater);
id., at S4945 (May 12, 1982) (remarks of Sen. Durenberger). These state-
ments are entitled to little, if any, weight, since they were made by oppo-
nents of the legislation. Schwegmann Bros. V. Calvert Distillers Corp.,
341 U. S. 384, 394-395 (1951).
83-276-OPINION
14
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
ance with the draft registration requirement and fairness in
the allocation of scarce federal resources. Section 1113
clearly furthers nonpunitive legislative goals.
C
Because § 1113 does not single out an identifiable group
that would be ineligible for Title IV aid or inflict punishment
within the meaning of Bill of Attainder Clause, we hold that
the District Court erred in striking down § 1113 as an imper-
missible attainder.
III
Appellees assert that § 1113 violates the Fifth Amendment
by compelling nonregistrants to acknowledge that they have
failed to register timely when confronted with certifying to
their schools that they have complied with the registration
law. Pointing to the fact that the willful failure to register
within the time fixed by Proclamation No. 4771 is a criminal
offense punishable under 50 U. S. C. § 462, they contend that
§ 1113 requires them-since in fact they have not regis-
tered—to confess to a criminal act and that this is "compul-
sion" in violation of their Fifth Amendment rights.
However, a person who has not registered clearly is under
no compulsion to seek financial aid; if he has not registered,
he is simply ineligible for aid. Since a nonregistrant is bound
to know that his application for federal aid would be denied,
he is in no sense under any "compulsion" to seek that aid.
He has no reason to make any statement to anyone as to
whether or not he has registered.
The District Court also relied on several isolated statements expressing
understandable indignation over the decision of some nonregistrants to
show their defiance of the law. See 128 Cong. Rec. H4757 (July 28, 1982)
(remarks of Rep. Montgomery); id., at S4944 (May 12, 1982) (remarks of
Sen. Hayakawa). But such statements do not constitute "the unmistak-
able evidence of punitive intent which
is required before a Congres-
sional enactment of this kind may be struck down." Flemming V. Nestor,
363 U. S. 603. 619 (1960).
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SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
15
If appellees decide to register late, they could, of course,
obtain Title IV aid without providing any information to their
school that would incriminate them, since the statement to
the school by the applicant is simply that he is in compliance
with the registration law; it does not require him to disclose
whether he was a timely or a late registrant. See n. 2,
supra. A late registrant is therefore not required to disclose
any incriminating information in order to become eligible for
aid.
Although an applicant who registers late need not disclose
that fact in his application for financial aid, the Government
concedes that a late registrant must disclose that his action is
untimely when he makes a late registration with the Selec-
tive Service; the draft registration card must be dated and
contain the registrant's date of birth. 32 CFR § 1615.4
(1983). This raises the question whether § 1113 violates ap-
pellees' Fifth Amendment rights because they must register
late in order to get aid and thus reveal to the Selective Serv-
ice the failure to comply timely with the registration law.
Appellees contend that, under our holding in Lefkowitz V.
Turley, 414 U.S. 70, 83-84 (1973), the very risk that they
will be ineligible for financial aid constitutes "compulsion"
within the meaning of the Fifth Amendment.
In Turley we held that "the plaintiffs' [architects'] disquali-
fication from public contracting for five years as a penalty for
asserting a constitutional privilege is violative of their Fifth
Amendment rights." Id., at 83. However, nonregistrants
such as appellees are not in the same position as potential
public contractors in Turley. An 18-year-old male who
refuses to register is, of course, subject to prosecution for
failure to register, but he is not compelled by law to acknowl-
edge his failure to comply. Only when he registers-includ-
ing a late registration-will he be asked to state his date of
birth and thus acknowledge that he did not timely register.
None of these appellees has registered and thus none of
them has been confronted with a need to assert a Fifth
83-276-OPINION
16
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
Amendment privilege when asked to disclose his date of
birth. Unlike the architects in Turley, these appellees have
not been denied the opportunity to register and in no sense
have they been disqualified for financial aid "for asserting a
constitutional privilege." Ibid.
It is well settled that, "in the ordinary case, if a witness
under compulsion to testify makes disclosures instead of
claiming the privilege, the government has not 'compelled'
him to incriminate himself," Minnesota V. Murphy, 465 U. S.
,
(1984); "[a]nswers may be compelled regardless of
the privilege if there is immunity from federal and state use
of the compelled testimony or its fruits in connection with a
criminal prosecution against the person testifying," Gardner
V. Broderick, 392 U. S. 273, 276 (1968). However, these ap-
pellees, not having sought to register, have had no occasion
to assert their Fifth Amendment privilege when asked to
state their dates of birth; the Government has not refused
any request for immunity for their answers or otherwise
threatened them with penalties for invoking the privilege as
in Turley. Under these circumstances, § 1113 does not vio-
late their Fifth Amendment rights by forcing them to ac-
knowledge during the registration process they have avoided
that they have registered late. 16
IV
We conclude that § 1113 does not violate the proscription
against Bills of Attainder. Nor have appellees raised a cog-
nizable claim under the Fifth Amendment.¹⁷
"The dissent reads Marchetti V. United States, 390 U. S. 39 (1968), and
Grosso V. United States, 390 U.S. 62 (1968), to create in this case an ex-
ception to the normal rule requiring assertion of the Fifth Amendment
privilege. In Marchetti and Grosso, however, anyone who asserted the
privilege on a wagering return did not merely call attention to himself; the
very filing necessarily admitted illegal gambling activity. Those cases are
therefore clearly distinguishable on their facts. See Grosso, at 73 (BREN-
NAN, J., concurring): United States V. Sullivan, 274 U. S. 259, 263 (1927).
17 Appellees also assert that $ 1113 violates equal protection because it
discriminates against less wealthy nonregistrants. That argument is
meritless. Section 1113 treats all nonregistrants alike. denying aid to both
83-276-OPINION
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
17
The judgment of the District Court is
Reversed.
JUSTICE BLACKMUN took no part in the decision of this
case.
the poor and the wealthy. But even if the statute discriminated against
poor nonregistrants because more wealthy nonregistrants could continue
to pay for their postsecondary educations, the statute must be sustained if
rationally related to a legitimate government interest. Harris V. McRae,
448 U.S. 297, 322-324 (1980). That standard is easily met here, because
§ 12 is rationally related to the legitimate government objectives of encour-
aging registration and fairly allocating scarce federal resources. See
supra, at
I
SUPREME COURT OF THE UNITED STATES
No. 83-276
SELECTIVE SERVICE SYSTEM ET AL. v. MINNESOTA
PUBLIC INTEREST RESEARCH GROUP ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MINNESOTA
[July 5, 1984]
JUSTICE POWELL, concurring in part and concurring in the
judgment.
I do not disagree with the holding or, indeed, with most of
the Court's opinion. As I view this case, however, the Bill of
Attainder issue can and should be disposed of solely on the
ground that § 1113 of the Defense Authorization Act of 1983
is not punitive legislation.
Unless § 1113 is punitive in its purpose and effect, there is
no Bill of Attainder. Nixon V. Administrator of General
Services, 433 U.S. 425, 472 (1977). The term "punitive"
connotes punishment as for a crime. Young men who know-
ingly have failed to comply with the registration require-
ments of the Selective Service Act have committed a crime
for which the Act itself provides the only punishment.¹ Sec-
tion 1113 is in no sense punitive; it authorizes no punishment
1 Section 12 of the Military Selective Service Act provides, in relevant
part:
"[A]ny person who
...
evades or refuses registration or service in the
armed forces or any of the requirements of this title
or who in any
manner shall knowingly fail or neglect or refuse to perform any duty re-
quired of him under or in the execution of this title,
or rules, regula-
tions, or directions made pursuant to this title
shall. upon conviction in
any district court of the United States of competent jurisdicton, be pun-
ished by imprisonment for not more than five years or a fine of not more
than $10.000, or by both such fine and imprisonment. 50 U.S.C.
App. § 462.
83-276-CONCUR
2
SELECTIVE SERVICE v. MINN. PUBL. INT. RES. GP.
in any normal or general acceptance of that familiar term.
Rather, it provides a benefit at the expense of taxpayers
generally for those who request and qualify for it. There
is no compulsion to request the benefit. No minority or
disfavored group is singled out by Congress for disparate
treatment.
Section 1113 applies broadly and equally to every male citi-
zen and resident alien who upon attaining 18 years of age is
required by Presidential order to register with the Selective
Service.2 As its legislative history makes clear, § 1113 was
enacted to encourage compliance with the Selective Service
Act, leaving punishment for failure to comply entirely to the
provisions of the Act itself and to the normal enforcement
provisions provided by law. The Court observes that Con-
gress by § 1113 has adopted a "rational means" to encourage
compliance with law. Ante, at 12. It is encouragement
only; not compulsion. Moreover, the interest of govern-
ment-indeed of the people of our country-in providing for
national security is compelling. It has been recognized as
such from the earliest days of the Republic.3 The Preamble
'Young men in the United States are required only to register for mili-
tary service when most of the other major countries of the world require
this service. In NATO, for example, the following countries have compul-
sory military service: Belgium, Denmark, France, Greece, Italy, Nether-
lands, Norway, Portugal, Spain, Turkey and West Germany. Switzerland
also has compulsory service as do-of course-all the communist countries.
See, The International Institute for Strategic Studies, The Military Bal-
ance 1983-1984 (1983).
"The Federalist Papers, the essays arguing in favor of adoption of the
Constitution, are replete with emphasis on the need for a national govern-
ment to provide for defense by raising and maintaining armed forces. In
John Jay's prescient Paper, No. 4, he observed that the "safety of the peo-
ple of America against dangers from foreign forces depends not only on
[our] forbearing to give just causes of war to other nations, but also on
their placing and continuing themselves in such a situation as not to invite
hostility
It is too true, however, disgraceful it may be to human na-
ture, that nations in general will make war whenever they have a prospect
of getting anything by it; [and] absolute monarchs will often make war
83-276-CONCUR
SELECTIVE SERVICE v. MINN. PUBL. INT. RES. GP.
3
of the Constitution declares that one of the Framers' pur-
poses was to "provide for the common defence."
As I find that § 1113 is punitive neither in its purpose nor in
its effect, it is unnecessary in my view to reach the other ar-
guments addressed by the Court on the Bill of Attainder
issue.⁵ I add, however, that I do not disagree with the
Court's reasoning, except to the extent it relies upon the Sec-
retary's regulation that "interprets" the 1983 Act. In view
of the compelling interest of government, the constitutional-
ity of § 1113 does not depend upon this interpretation.
In sum, I join sections I, II B, III and IV of the Court's
opinion, and its judgment.
when their nations are to get nothing by it. The Federalist No. 4, at
pp. 18-19 (J. Cooke ed. 1961) (emphasis in original).
Many of the opponents of the national union argued against "the raising
of armies in time of peace." Responding to this argument, Alexander
Hamilton answered that the "United States would then exhibit the most
extraordinary spectacle which the world has yet seen-that of a nation in-
capacitated by its constitution to prepare for defense before it was actually
invaded." The Federalist No. 25, p. 161 (J. Cooke ed. 1961). Hamilton
also spoke of the danger of "expos[ing] our property and liberty to the
mercy of foreign invaders and invit[ing] them by our weakness [to attack
our country]." Ibid: see also The Federalist No. 24 (A. Hamilton).
"Art. I, §8, of the Constitution expressly empowers Congress, in a sin-
gle clause, "to pay the Debts and provide for the Common Defense and
General Welfare of the United States."
'In support of their contention that § 1113 is a form of punishment, ap-
pellees cite Ex Parte Garland, 71 U. S. (4 Wall.) 333 (1867), Cummings v.
Missouri, 71 U.S. (4 Wall.) 277 (1867), and United States V. Lovett, 328
U. S. 303 (1946). In each of these cases, the Court held that "a legislative
decree of perpetual exclusion' from a chosen vocation" was "punishment"
for purposes of the Bill of Attainder Clause. Id., at 316. Those cases are
inapposite here. Section 1113 does not restrict in any way appellees'
choice of vocations or otherwise restrict the exercise of any constitutional
right. It merely provides that those men who wish to receive title IV aid
must first comply with the registration laws.
SUPREME COURT OF THE UNITED STATES
No. 83-276
SELECTIVE SERVICE SYSTEM ET AL. v. MINNESOTA
PUBLIC INTEREST RESEARCH GROUP ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
THE DISTRICT OF MINNESOTA
[July 5, 1984]
JUSTICE BRENNAN, dissenting.
For the reasons stated in Part II of JUSTICE MARSHALL'S
dissenting opinion, I too would affirm the judgment of the
District Court on the ground that § 1113 of the Department of
Defense Authorization Act of 1983 compels those students
seeking financial aid who have not registered with the Selec-
tive Service in timely fashion to incriminate themselves and
thereby violates the Fifth Amendment.
SUPREME COURT OF THE UNITED STATES
No. 83-276
SELECTIVE SERVICE SYSTEM ET AL. v. MINNESOTA
PUBLIC INTEREST RESEARCH GROUP ET AL.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA
[July 5, 1984]
JUSTICE MARSHALL, dissenting.
In 1980, after a 5-year suspension, the United States Gov-
ernment reinstituted registration for military service. By
Presidential Proclamation, all men born after January 1,
1960, were required to register with the Selective Service
System within 30 days of their 18th birthday.¹ The issue in
this case is not whether Congress has authority to implement
the law, but whether the method it has chosen to do so of-
fends constitutional guarantees of individual rights. I con-
clude that § 1113 fails to pass constitutional muster on two
grounds. First, it compels self-incrimination, in violation of
the Fifth Amendment. Second, it violates the right to equal
protection of the laws guaranteed under the Due Process
Clause of the Constitution.
I
At the time of the enactment of the statute before the
Court today, Congress understood that, of the draft-eligible
I Registration consists of completing SSS Form 1, available at any post
office. The form requires the registrant to provide date of birth. sex, so-
cial security number, name. current and permanent mailing address, cur-
rent telephone number, affirmation that the information provided is true,
and date of that affirmation. A postal clerk date-stamps and initials the
form. indicating whether the registrant produced identification. The reg-
istrant is under a continuing duty to notify Selective Service of changes in
this data.
83-276-DISSENT
2
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
population of 9,039,000 men, some 674,000 had failed to regis-
ter, and many more registrants had failed to provide current
mailing addresses.² Explanations for this widespread dere-
liction of legal duty have been as varied as the proposals to
obtain full compliance. Testifying at oversight hearings,
Government officials have told Congress that most nonreg-
istrants are "uninformed of the requirement or are unaware
of the importance of registration,"3 while only "a relatively
small number of nonregistrants have 'knowingly' neglected
their duty."1 Private organizations have testified that non-
compliance with the Selective Service law "is grounded in
registration's violation of individual conscience and its in-
fringement of religious freedom";" that they oppose draft
registration as a "massive government surveillance system"
in which the Government collects, stores and exchanges data
on individuals in violation of constitutional and statutory
rights;6 and that many cannot register as a matter of con-
2Oversight Hearing on Selective Service Prosecutions before the Sub-
committee on Courts, Civil Liberties, and the Administration of Justice of
the House Committee on the Judiciary, 97th Cong., 2d Sess., 10 (July 28,
1982) (hereinafter Oversight Hearing) (Statement of Director of Selective
Service, Maj. Gen. Thomas Turnage (Ret.)) (hereinafter Turnage); Attach-
ment 17, id., at 95-105 (Report of General Accounting Office). On the
floor of the House the same day, Rep. Solomon estimated 93% compliance
and 700,000 nonregistrants. 128 Cong. Rec. H4757.
³Oversight Hearing, at 11 (statement of Turnage); see also id., at 7
(statement of Kenneth J. Coffey, Assoc. Director, (Military) Federal Per-
sonnel and Compensation Division, U.S. General Accounting Office).
'Id., at 10 (statement of Turnage).
$Id., at 47 (statement of Delton Franz for the National Interreligious
Service Board for Conscientious Objectors). This group understands reg-
istration to be an integral part of conscription for war. Oversight Hear-
ing, at 47-48. Cf. Rostker V. Goldberg, 453 U. S. 57, 68 (1981) ("Congress
specifically linked its consideration of registration to induction, see, e. g.,
S. Rep. No. 96-826, pp. 156, 160 (1980). Congressional judgments con-
cerning registration and the draft are based on judgments concerning mili-
tary operations and [combat] needs
").
'Id., at 35 (statement of David Landau, Legislative Counsel, American
Civil Liberties Union, Washington, D. C.) (expressing concern that data
83-276-DISSENT
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
3
science because current regulations prohibit them from
adjudicating their conscientious objector status prior to
induction.⁷
Both the agency and Congress have crafted strategies to
increase compliance with the law, such as increasing publicity
programs, declaring a grace period when nonregistrants
could comply without fear of prosecution, and posting lists of
registrants in their local post offices.8 To identify and locate
nonregistrants, Selective Service has collected Social Secu-
rity numbers on draft registration forms, and located non-
registrants through computer data bank sharing with the De-
partment of Health and Human Services and through mail
forwarding by the Internal Revenue Service. Several per-
sons have been prosecuted for their failure to register, and
collected for, e. g., tax and social security purposes, upon a promise of con-
fidentiality, is being used for enforcement purposes, by exemptions from
the Privacy Act of 1974, which generally prohibits data-matching among
government agencies). See also n. 9, infra.
Oversight Hearing, at 34-35 (statement of Landau) (contrasting regu-
lations under prior draft, permitting application for conscientious objector
status immediately after registration, and current regulations, presump-
tively classifying all registrants as available for induction, and permitting
application for other status only within the 10 day period after receipt of a
notice of induction). See 32 CFR §§ 1624.5(a), 1633.2(h), 1633.3 (1983).
See also Oversight Hearing, at 42-43 (testimony of Rev. Barry Lynn,
President, Draft Action).
'Id., at 81-82 (statement of Turnage).
9 After a class action successfully challenged agency practice as a viola-
tion of the Privacy Act of 1974, § 2, note following 5 U.S. C. § 552a (statu-
tory authorization required to collect Social Security numbers), Congress
amended the Selective Service Act to require registrants to provide Social
Security numbers. Department of Defense Authorization Act of 1982,
Pub. L. 97-86, § 916, 95 Stat. 1129, 50 U.S. C. App. § 453. See Wolman
V. United States, 542 F. Supp. 84 (DC 1982). Pub. L. 97-86 also author-
ized the President to require the Secretary of Health and Human Services
to furnish the Director of Selective Service, for enforcement purposes, the
name, date of birth, social security number, and address of any person re-
quired to register for the draft. 50 U. S. C. App. § 462(e).
83-276-DISSENT
4
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
the names of others have been forwarded to the Department
of Justice for investigation and possible prosecution; the
attendant publicity is seen by the agency as an effective
method of communicating the duty to register and the seri-
ousness of the failure to do so.10
It is in this context that Congress considered and adopted
the statute before the Court, which was introduced on the
floor by Representative Solomon and Senator Hayakawa as a
rider to the Military Appropriations Act of 1982. Section
1113 added a new subsection to the "Offenses and Penalties"
section of the Military Selective Service Act. 50 U. S. C.
App. § 462(f). The statute creates ineligibility for any form
of assistance or benefit provided under Title IV of the Higher
Education Act of 1965 (20 U. S. C. § 1070 et seq.) for any per-
son required to register who fails to do so, 50 U. S. C. App.
§ 462(f)(1), and requires those persons to file with their post-
secondary institution a "statement of compliance" with the
draft registration requirement, 50 U. S. C. App. § 453.
§ 462(f)(2). As the Court holds today, the purpose of this
statute was not to penalize nonregistrants, but to encourage
compliance with the legal duty to provide information to the
Selective Service System.
It is tempting to succumb to the comfortable conclusions
the majority draws after its glancing review of this legisla-
tion. After all, the Government has an explicit constitu-
The agency also has considered cooperation with nonfederal data sys-
tems, such as state drivers' licenses, and private data systems on a fee
basis. Oversight Hearing, at 84.
101d., at 13-14 (statement of Lawrence Lippe, Criminal Division, De-
partment of Justice) (159 persons, self-identified nonregistrants or re-
ported by others, referred to U.S. Attorneys for possible prosecution; De-
partment "keeping in close touch" with Selective Service as it begins active
enforcement program through use of social security and other records).
The Court has granted certiorari in Wayte V. United States, No. 83-1292,
467 U.S. - (1984), to consider the First Amendment challenge to the
Government's program of investigating and prosecuting persons identified
through their vocal opposition to draft registration.
83-276-DISSENT
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
5
tional duty to provide for the common defense. "[I]n a free
society," as Congress has declared, "the obligations and priv-
ileges of serving in the armed forces and the reserve compo-
nents thereof should be shared generally, in accordance with
a system of selection which is fair and just
§ 451(c).
The statute at issue has something to do with promoting full
compliance with the registration law, which in turn promotes
fairness in allocating burdens in the event of reinstitution of
involuntary induction. Much of the legislative rhetoric pro-
moting § 1113 seems unexceptional: youth should accept the
obligations as well as the privileges of a democracy." Nev-
ertheless, mindful that "[i]t is the duty of courts to be watch-
ful for the constitutional rights of the citizen, and against any
stealthy encroachments thereon," Boyd V. United States,
116 U. S. 616, 634-635 (1886), I must dissent.
II
I do not have to disagree with the majority that § 1113 does
not violate the constitutional prohibition against bills of at-
tainder. That holding depends on construing the statute to
permit late registration, ante, at 8, which in turn depends on
construing Congress' intent as encouragement of compliance
with the Selective Service registration requirement. Ante,
at 12. The majority emphasizes the "nonpunitive spirit" of
the legislation implicit in the fact that Congress "allowed all
nonregistrants to qualify for Title IV aid simply by register-
ing late." Ante, at 13. Congress did not, however, grant
immunity from criminal prosecution for that act of late reg-
istration. Absent such a grant, § 1113 must be struck be-
cause it compels self-incrimination.
The Fifth Amendment privilege against coerced self-in-
crimination extends to every means of government informa-
tion gathering. Lefkowitz V. Turley, 414 U. S. 70, 77 (1973);
Murphy V. Waterfront Comm'n, 378 U.S. 52, 90 (1964)
(WHITE, J., concurring); Counselman V. Hitchcock, 142
11 See 128 Cong. Rec. S4944 (May 12, 1982) (remarks of Sen. Hayakawa).
83-276-DISSENT
6
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
U. S. 547, 562 (1892). In our regulatory state, the line be-
tween permissible conditioning of the Government's taxing
and spending power and impermissible Government coercion
of information that presents a real threat of self-incrimination
is not easy to identify. But I am confident the line has been
crossed here. 12
I do not take issue with the majority's conclusion, ante, at
14-15, that the Title IV application process itself does not re-
quire a student to divulge incriminating information to the
educational institution. 13 The neutrality of this compliance
verification system is central to the majority's acceptance of
the permissible, regulatory purpose of the statute. How-
ever, our inquiry cannot stop there. Although § 1113 does
not coerce an admission of nonregistration, it does coerce
registration with the Selective Service System, and hence in-
dividual reporting of self-incriminatory information directly
to the Federal Government.
If appellees were to register with Selective Service now so
that they could submit statements of compliance to obtain fi-
nancial aid for their schooling, they would still be in violation
of federal law, for, by registering late, they would not have
submitted to registration "in accordance with any proclama-
tion" issued under § 3 of the Military Selective Service Act,
50 U. S. C. App. § 453. § 462(f)(1). Failure to comply with
Selective Service registration requirements within 30 days of
one's eighteenth birthday is a felony, punishable by imprison-
12 Of course, there are other "rights of constitutional stature whose exer-
cise [Government] may not.condition by the exaction of a price," Garrity V.
New Jersey, 385 U. S. 493, 500 (1967), such as the exercise of rights guar-
anteed by the First Amendment, but the posture of this appeal presents
only a challenge to the burdens the legislation places on the exercise of
Fifth Amendment rights.
13 The compliance form does not require the student to state either the
date of his birth or the date of his registration. The verification of reg-
istration, SSS Form 3A. required of all students after July 1, 1985, con-
tains a "Date of Record," which would appear not to be the date of registra-
tion. 34 CFR § 668.26(b), (d)(1) (1983).
83-276-DISSENT
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
7
ment for up to five years and/or a fine of up to $10,000. 50
U. S. C. App. § 462(a).
A student who registers late provides the Government
with two crucial links in the chain of evidence necessary to
prosecute him criminally. Cf. Marchetti V. United States,
390 U. S. 39, 48, and n. 9 (1968). First, he supplies the Gov-
ernment with proof of two elements of a violation: his birth
date and date of registration. Second, and perhaps more im-
portantly, he calls attention to the fact that he is one of the
674,000 young men in technical violation of the Military Se-
lective Service Act. Armed with this data, the Government
need prove only that the student "knowingly" failed to regis-
ter at the time prescribed by law in order to obtain a convic-
tion. 50 U. S. C. App. § 462(a). When students, such as
appellees in this case, have acknowledged their awareness of
their legal duty to register, App. 11-12, 24-25, the Govern-
ment could prosecute the commission of a felony.
There can be little doubt that a late registration creates a
"real and appreciable" hazard of incrimination and prosecu-
tion, and that the risk is not "so improbable that no reason-
able man would suffer it to influence his conduct." Brown V.
Walker, 161 U.S. 591, 599-600 (1896). In its brief to this
Court, for example, the Government explicitly acknowledges
that, although "failure to register within [30 days of one's
18th birthday] does not disqualify the registrant for Title IV
aid, it is a criminal offense punishable under 50 U. S. C. App.
(& Supp. V) 462." Brief for Appellant 17, n. 7. The Gov-
ernment thus appears to reserve the right to use information
obtained by the leverage of withholding education aid as a
basis for criminal prosecution. Communications with reg-
istering men convey the same message. For example, both
the "Registration Form," SSS Form 1, and the "Acknowl-
edgement Letter," SSS Form 3A, which is mailed to men as
legal proof of compliance with Selective Service registration
requirements, advise registrants that the information they
have provided "may be furnished to the
Department of
83-276-DISSENT
8
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
Justice-for review and processing of suspected violations of
the Military Selective Service Act
[and to the] Federal
Bureau of Investigation-for location of an individual when
suspected of violation of the Military Selective Service Act."
Finally, recent Government actions have acknowledged the
realistic potential for prosecution. For example, President
Reagan declared a "grace period" in the first months of 1982,
in which men could register without penalty.14 The obvious
implication of this declaration is that once the grace period
expires, late registrants will be prosecuted. All of these
governmental actions confirm the serious risk of self-in-
crimination and prosecution inherent in the act of late
registration.¹⁵
Having established that late registration is an incriminat-
ing act, the question to be asked is whether the Government
14 Registration Under the Military Selective Service Act, 18 Weekly
Comp. of Pres. Doc. 8 (1982). The grace period extended from January 7
through February 28, 1982. N. Y. Times, Jan. 21, 1982, p. 14, col. 3. The
Director of Selective Service, General Turnage, noted the correlation
between extending immunity and encouraging registration compliance.
Oversight Hearing, at 80-81 ("we have run clear off the chart"). See also
id., at 5-6 (400,000 registered as a result of 2-month grace period).
"The Government's contention that the threat of incrimination is specu-
lative and that therefore the Fifth Amendment is not implicated rests en-
tirely on the assertion that under current (but concededly not "immutable")
policy, prosecution for late registration is unlikely. Reply Brief for Ap-
pellants 15-16; Tr. of Oral Arg. 14. Just this Term, we acknowledged that
"policy choices are made by one administration, and often reevaluated by
another administration." United States V. Mendoza, 464 U.S.
,
(1984). Considering that the statute of limitations for Selective Service reg-
istration violations is five years from the date of compliance with the law,
or, for nonregistrants, age 31, 50 U. S. C. App. § 462(d), as well as the un-
predictability and wide range of public and political responses to the act of
noncooperation with military service over the course of our history, a
nonregistrant reasonably expects immunity for his compelled disclosures,
not merely references to current policy. The hard fact is that the penalty
for late registration is precisely the same as the penalty for non-
registration: a possible prison term of five years and/or a possible fine of
$10,000.
83-276-DISSENT
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
9
has exercised its powers in a way that deprives appellees the
freedom to refrain from self-incrimination through late reg-
istration. Garrity V. New Jersey, 385 U. S. 493, 496 (1967);
Malloy V. Hogan, 378 U. S. 1, 8 (1964). When the Govern-
ment extracts incriminating information by the leverage of
the threat of penalties, including the "threat of substantial
economic sanction," Lefkowitz V. Turley, 414 U. S., at 82-83,
the information is not volunteered. Thus, our cases have
found coercion in statutes that extracted information through
the threat of termination of state employment, Garrity V.
New Jersey, supra; Uniformed Sanitation Men Assn., Inc.
V. Commissioner of Sanitation, 392 U. S. 280 (1968); Gard-
ner V. Broderick, 392 U. S. 273 (1968), through the threat of
exclusion of a person from a profession, Spevack V. Klein, 385
U.S. 511 (1967), or through the threat of exclusion from
participation in government contracts, Lefkowitz V. Turley,
supra.
The threat of the denial of student aid is substantial eco-
nomic coercion, and falls within the ambit of these cases.
For students who had received federal education aid before
enactment of § 1113, termination of aid is coercive because it
could force these students to curtail their studies, thereby
forfeiting their investment in prior education and abandoning
their hopes for obtaining a degree. Five of the six appellees
in these cases fall into this category. App. 11-12, 24-25.
Students who have not previously received federal aid may
also be coerced by § 1113. All students understand that en-
try into most professions and technical trades requires post-
secondary education. For students who cannot otherwise
afford this education, compliance with § 1113 is coerced by
the threat of foreclosing future employment opportunities.
All of the appellees have stated that their own career plans
require them to complete a college education. Ibid.; see also
id., at 16, 29.
By withholding federal aid and the opportunity to obtain
post-secondary education, § 1113 levies a substantial burden
83-276-DISSENT
10
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
on students who have failed to register with the Selective
Service System. This statutory provision coerces students
into incriminating themselves by filing late registration
forms. As the Court noted in Garrity V. New Jersey, supra,
at 497, the "option to lose their means of livelihood or to pay
the penalty of self-incrimination is the antithesis of free
choice to speak out or to remain silent." I therefore com-
pletely agree with appellees that this enforcement mecha-
nism violates the Fifth Amendment's proscription against
self-incrimination as interpreted in our previous cases, and
would strike the provision down on this ground alone. 16
Moreover, I do not understand the Court today to dispute
that § 1113 raises serious Fifth Amendment problems. The
Court concedes that it would be incriminating for appellees to
register with the Selective Service now. Ante, at 15. The
Court furthermore strongly suggests that appellees could ex-
ercise their Fifth Amendment rights if they did register, cf.
Garner V. United States, 424 U. S. 648 (1976), and that the
Government could not compel their answers at that point
without immunization. Ante, at 16.¹⁷ The majority in-
correctly assumes, however, that appellees must claim their
16 Of course, the general rule that a person must affirmatively assert the
Fifth Amendment privilege or be deemed to have waived it, see, e. g.,
United States V. Kordel, 397 U. S. 1, 7-10 (1970), is simply inapplicable in
"the classic penalty situation [which excuses] the failure to assert the privi-
lege." Minnesota V. Murphy, 465 U.S.
I
,
and n. 7 (1984); see
also id.,
(MARSHALL, J., dissenting).
17 Appellees would have two choices: complete the registration form, or
note the Fifth Amendment privilege on the incomplete form. In either
case, should appellees be prosecuted. they would argue that the card could
not be introduced in evidence, and that the Government has the burden of
proving that it made no use whatever of the incriminating disclosures.
Counselman V. Hitchcock, 142 U. S. 547 585-586 (1982). They might also
argue that, having claimed the Fifth Amendment on their registration
card, they can in good faith certify to the educational institution that they
have complied with the Selective Service requirement, and receive Title
IV aid. A statutory grant of immunity would far better promote Con-
gress' aims.
83-276-DISSENT
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
11
privilege against self-incrimination before they can raise a
Fifth Amendment claim in this lawsuit. What the majority
fails to recognize is that it would be just as incriminating for
appellees to exercise their privilege against self-incrimination
when they registered as it would be to fill out the form with-
out exercising the privilege. The barrier to prosecuting
Military Selective Service Act violators is not so much the
Government's inability to discover a birthdate or date of
registration as the difficulty in identifying the 674,000
nonregistrants. The late registrant who "takes the Fifth" on
SSS Form 1 calls attention to himself as much as, if not more
than, a late registrant who marks down his birthdate and
date of registration.
In Marchetti V. United States, 390 U. S. 39 (1968), and the
related case of Grosso V. United States, 390 U. S. 62 (1968),
the Court faced a similar situation, in which complying with a
federal registration requirement was the practical equivalent
of confessing to a crime. In those cases, federal law re-
quired persons engaged in the business of accepting wagers
to register and pay an occupational and excise tax. Compli-
ance did not exempt the gambler from any penalties for
conducting his business, which was widely prohibited under
federal and state law, and the information obtained if he did
comply was readily available to assist the authorities in
enforcing those penalties. Petitioners failed to file the re-
quired forms because they feared that they would be prose-
cuted for gambling if they revealed their activities to the
Federal Government; they were convicted of willful failure to
do so. The Court reversed the convictions, holding that a
18 Of course, the Government can always draw an incriminating inference
when a person claims a Fifth Amendment privilege. In the usual case,
however, the Government has, for example, subpoenaed a witness to
testify, and thus has already identified him. Whether he chooses not to
appear. or appears but invokes the privilege, the Government knows of his
refusal to cooperate. The appellees and other nonregistrants are not
known to the Government. Therefore, invocation of the Fifth Amend-
ment by appellees gives the Government a different quality of information.
83-276-DISSENT
12
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
"statutory system
utilized to pierce the anonymity of citi-
zens engaged in criminal activity, is invalid." Grosso V.
United States, supra, at 76 (JUSTICE BRENNAN, concurring).
The Court recognized that by filing an incomplete form, or
explicitly invoking their Fifth Amendment privilege on the
form itself, petitioners would incriminate themselves by in-
forming the Government that they were involved in illegal
gambling activities. The Court therefore ruled that peti-
tioners could exercise their Fifth Amendment rights by mak-
ing "a 'claim' by silence," Garner V. United States, supra, at
659, n. 11, and refraining from filing the required forms.
The Marchetti-Grosso Court based its holding in part on
the fact that the information-gathering scheme was directed
at those "inherently suspect of criminal activities." Mar-
chetti V. United States, supra, at 47. Here, it is fair to say
that the Government does not expect that most registrants
will be in violation of the Selective Service laws. At first
blush, the required information might therefore seem less
like the Marchetti-Grosso inquiries and more like income tax
returns, "neutral on their face and directed at the public at
large." Albertson V. Subversive Activities Control Board,
383 U. S. 70, 79 (1965). In Garner V. United States, supra,
at 661, the Court noted that the great majority of persons
who file income tax returns do not incriminate themselves by
disclosing the information required by the Government. Be-
cause the Government has no reason to anticipate incrim-
inating responses when requiring citizens' self-reporting of
answers to neutral regulatory inquiries, our cases put the
burden of asserting a Fifth Amendment privilege on the
speaker, and the right to make a claim by silence is not
available.
To adopt this analogy, however, is to ignore the actual case
or controversy before the Court. When Congress passed
§ 1113, its focus was assuredly not prospective. As the ma-
jority explains, Congress forged the link between education
aid and Selective Service registration in order to bring into
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SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
13
compliance with the law the 674,000 existing nonregistrants,
including the six appellees in these cases. Ante, at 7-8, and
n. 4. Although as a general matter it is correct to say that
registration is like income tax (neutral on its face and di-
rected to the (male) population at large), § 1113-compelled
late registration is directed to a group inherently suspect of
criminal activity, squarely presenting a Marchetti issue.
In my view, therefore, young men who have failed to regis-
ter with Selective Service, and at whom § 1113 was substan-
tially aimed, are entitled to the same "claim by silence" as
Marchetti and Grosso. But these students are compelled to
forgo that right under this statutory scheme. The defect in
§ 1113 is that it denies students seeking federal aid the free-
dom to withhold their identities from the Federal Govern-
ment. If appellees assert their Fifth Amendment privilege
by their silence, they are penalized for exercising a constitu-
tional right by the withholding of education aid. If they suc-
cumb to the economic coercion either by registering, or by
registering but claiming the privilege as to particular disclo-
sures, they have incriminated themselves.
Thus, I cannot accept the majority's view that appellee's
Fifth Amendment claims are not ripe for review. If the
Court is suggesting that appellees must wait until they are
prosecuted for late registration before adjudication of their
claim, that "is, in effect, to contend that they should be
denied the protection of the Fifth Amendment privilege in-
tended to relieve claimants of the necessity of making a
choice between incriminating themselves and risking serious
punishments for refusing to do so." Albertson V. Subversive
Activities Control Board, supra, at 76. As in Albertson,
where a federal statute required members of the Communist
party to register, appellees are put to the choice of register-
ing without a decision on the merits of their constitutional
privilege claim, or not registering and suffering a penalty.
A nonregistrant's most efficacious opportunity to exercise his
privilege against self-incrimination without simultaneously
83-276-DISSENT
14
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
compromising that privilege is to challenge § 1113 anony-
mously, as appellees have done in these cases.
In sum, appellees correctly state that this law coerces
them into self-incrimination in the face of a substantial risk of
prosecution. That risk should be cured by a statutory grant
of immunity. See Minnesota V. Murphy, 465 U.S.
,
-, , and n. 7 (1984) (opinion of the Court); id., at (MAR-
SHALL, J., dissenting). The grant would confirm that Con-
gress' intent in passing § 1113 was not to punish non-
registrants, but to promote compliance with the registration
requirement. The Government "may validly insist on an-
swers to even incriminating questions as long as it recog-
nizes that the required answers may not be used in a criminal
proceeding and thus eliminates the threat of incrimination."
Minnesota V. Murphy, supra, at - , n. 7, and cases cited
therein. See also Counselman V. Hitchcock, 142 U.S., at
564-565, 585-586. The Government has a substantial inter-
est in obtaining information to assure complete and accurate
Selective Service registration, but obtaining it under the
compulsion of § 1113, which is "capable of forcing the self-in-
crimination which the Amendment forbids," Lefkowitz V.
Cunningham, 431 U. S. 801, 806 (1977), is unconstitutional in
the absence of immunity for the compelled disclosures. If
Congress enacted § 1113 to encourage compliance with reg-
istration requirements, and not to identify and punish late
registrants, the constitutional legislative purpose would be
fulfilled without implicating students' Fifth Amendment priv-
ilege against self-incrimination.
III
The aspect of the law that compels self-incrimination is
doubly troubling because a discrete subgroup of nonregis-
trants bears the brunt of the statute. The Federal Govern-
ment has a duty under the Due Process Clause of the Fifth
Amendment to guarantee to all its citizens the equal protec-
tion of the laws. Rostker V. Goldberg, 453 U. S. 57 (1981);
83-276-DISSENT
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
15
Bolling V. Sharpe, 347 U. S. 497 (1954). Section 1113, in my
view, violates that constitutional duty.
The majority's superficial, indeed cavalier, rejection of re-
spondents' equal protection argument, ante, at 16, n. 16,
demonstrates once again a "callous indifference to the reali-
ties of life for the poor," Flagg Bros., Inc. V. Brooks, 436
U. S. 149, 166 (1978) (MARSHALL, J., dissenting), and the in-
adequacy of the Court's analytical structure in this area of
law. We should look to "the character of the classification in
question, the relative importance to individuals in the class
discriminated against of the governmental benefits that they
do not receive, and the asserted state [or federal] interests in
support of the classification." Dandridge V. Williams, 397
U. S. 471, 521 (1970) (MARSHALL, J., dissenting). See also
San Antonio Independent School District V. Rodriguez, 411
U. S. 1, 98-99 (1973) (MARSHALL, J., dissenting). As a ma-
jority of the Court has noted, "the courts are called upon to
decide whether Congress, acting under an explicit constitu-
tional grant of authority, has by that action transgressed an
explicit guarantee of individual rights which limits the au-
thority so conferred," and labels "may all too readily become
facile abstractions used to justify a result." Rostker V. Gold-
berg, supra, at 70.
The majority is factually incorrect when it states that the
statute at issue in this case treats all nonregistrants alike.
"Only low-income and middle-income students will be caught
in this trap," as was pointed out in floor debate on § 1113.
128 Cong. Rec. H4758 (July 28, 1982) (remarks of Rep. Mof-
fett). Title IV education aid is awarded on the basis of need.
See 20 U. S. C. § 1089 (need analysis) and accompanying
regulations. Although federal education aid is significant for
a large segment of post-secondary students, more than three
out of four post-secondary students dependent on family in-
comes under $6000 are receiving Title IV aid. U.S. Dept.
of Education, Office of Student Financial Assistance, OSFA
Program Book 18 (July 1981) (hereinafter OSFA Program
83-276-DISSENT
16
SELECTIVE SERVICE V. MINN. PUB. INT. RES. GP.
Book). 19 In contrast, only 8% of students dependent on fam-
ilies with incomes over $30,000 receive any Department of
Education-funded financial aid. Ibid. In the Basic Edu-
cational Opportunity Grant Program (now known as Pell
Grants), 83.1% of the recipients are dependent on families
with incomes of less than $12,000. Id., at 27. In the State
Student Incentive Program, 69.4% of the recipients are in
this category. Id., at 78 (figures for fiscal year 1977). It is
therefore absurd to state that § 1113 "treats all nonregis-
trants alike, denying aid to both the poor and the wealthy."
Ante, at 16, n. 16. The wealthy do not require, are not ap-
plying for, and do not receive federal education assistance,
and therefore are not subject to the requirement that they
file statements that they have complied with the Selective
Service registration requirement, nor to the economic com-
pulsion to provide incriminating facts to the Government in
the act of late registration. Yet the obligation to comply
19 Although the OSFA Program Book is published annually, we cite to
the 1981 edition because it contains the most recent statistics for distribu-
tion of federal education aid by income and ethnic group. Unless other-
wise noted, the figures reported in the 1981 OSFA Program Book are for
the 1978-1979 academic year.
20 Students who are members of ethnic minority groups are especially
reliant on federal assistance to obtain training beyond high school. 56.7%
of Basic Educational Opportunity Grant recipients, 52.1% of Student Edu-
cational Opportunity Grant recipients, and 46.4% of Work Study grants re-
cipients, are ethnic minorities, OSFA Program Book 27, 65, 74, although
these students are still a small percentage of the post-secondary student
body. For example, only 14.3% of the college students in 1982 were mi-
norities. U.S. Dept. of Commerce, Statistical Abstract of the United
States 161, Table 258 (1984). Section 1113 also penalizes only male stu-
dents. In Rostker V. Goldberg, 453 U.S. 57 (1981), the Court held that
gender differences influence combat roles and military needs and therefore
justify male-only draft registration. While I disagreed with that conclu-
sion, noting that the statute "thereby categorically excludes women from a
fundamental civic obligation," id., at 86, even had I joined the Court I
would protest the extension of this gender classification into the area of
federal education assistance, an area in which gender is irrelevant and any
classification based on gender is constitutionally objectionable. Men and
83-276-DISSENT
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
17
with the law, and the failure to do so, knows no economic
distinction.
As appellees argued in the District Court and in their
briefs to this Court, by linking draft compliance with educa-
tion aid, Congress has created a de facto classification based
on wealth," and has laid an unequal hand on those who have
committed precisely the same offense of failing to register
with the Selective Service within 30 days of their eighteenth
birthday. Cf. Yick Wo V. Hopkins, 118 U. S. 356, 373-374
(1886). Further, § 1113 clearly burdens these individuals' in-
terest in access to education, which "provides the basic tools
by which individuals might lead economically productive lives
to the benefit of us all." Plyler V. Doe, 457 U.S. 202, 221
(1982). Many of our cases have stressed the extraordinary
nature of the individual's interest in education. See, e. g.,
Plyler V. Doe, supra, at 234, 236 (BLACKMUN, J., concur-
ring); Vlandis V. Kline, 412 U. S. 441, 459 (1973) (WHITE, J.,
concurring in judgment). I continue to believe that interest
to be fundamental because of the relationship education bears
to our most basic constitutional values. See, e. g., Martinez
V. Bynum, 461 U.S.
,
(1983) (dissenting opinion);
Plyler V. Doe, supra, at 230-231 (concurring opinion). I
have written at length to explain my position, San Antonio
women are similarly situated for purposes of the allocation of education
funds. That principle should not be undermined by coopting education law
to enforce criminal laws.
21 The defects of the wealth classification are heightened because the
classification is also based on youth. We would ignore our responsibility if
we failed to give the statute before us most careful scrutiny. The young
persons affected by this statute are in the very process of forging a means
to establish their independence. Although enfranchised, they are less able
to exercise their vote because of their transience and, frequently, state
laws burdening student voter registration. See, e. g., N. Y. Elec. Law
§ 5-104 (McKinney 1978). To my mind, they are "relegated to such a posi-
tion of political powerlessness as to command extraordinary protection
from the majoritarian political process." San Antonio Independent School
District V. Rodriguez, 411 U. S. 1, 28 (1973) (opinion for the Court); United
States V. Carolene Products Co., 304 U. S. 144, 152, n. 4 (1938).
83-276-DISSENT
18
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
Independent School District V. Rodriguez, 411 U.S., at
110-117, and need not repeat the analysis here."
Declining to look at how § 1113 actually works, the major-
ity is satisfied not only that the statute does not disfavor any
classification, but also that it "is rationally related to the le-
gitimate government objectives of encouraging registration
and fairly allocating scarce federal resources." Ante, at 16,
n. 16. But can Congress' admittedly important interest in
enforcing the Selective Service Act justify unleashing a dual
system for its enforcement? While all nonregistrants are
subject to imprisonment and fine, only those nonregistrants
who qualify for education aid based on need are subjected
both to that criminal process and to the economic compulsion
imposed by the loss of financial aid. Federal courts can not
overlook the fact that Congress' "understandable indigna-
tion" at nonregistrants, ante, at 14, n. 15, focused on a dis-
crete subgroup.
If we accept that the purpose of § 1113 is to promote com-
pliance with Selective Service registration, then we must also
consider the fit between the law and its object. The uni-
verse of nonregistrants at the time of this legislation was
understood to be more than half a million men. The Govern-
ment does not offer any support for its statement that
"[t]hose who fail to register
are a significant part of the
class to which Title IV assistance is otherwise offered."
Ante, at —, n. 13. See Tr. of Oral Arg. 11 (Government
has no information on number of nonregistrants who are re-
ceiving financial aid).
22 Where our prior cases have focused particularly on the extraordinary
importance to the individual of elementary and secondary education, our
concern that burdening access to education creates permanent class dis-
tinctions and political disadvantage is equally relevant here. Post-second-
ary education is the necessary prerequisite to pursuit of countless voca-
tions, both professional and technical. Deprivation of a livelihood is too
great a price to pay for the assertion of the Fifth Amendment privilege.
Spevack V. Klein, 385 U. S. 511 (1967).
83-276-DISSENT
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
19
We should reject the suggestion that the putative age-
group overlap between the group required to register with
Selective Service and the group pursuing post-secondary
education is sufficient justification for this law. While it is
true that the Equal Protection Clause does not require that
legislatures resolve either all or none of a problem, Railway
Express Agency, Inc. V. New York, 336 U.S. 106, 110
(1949), it is also true that "nothing opens the door to arbi-
trary action so effectively as to allow
officials to pick and
choose only a few to whom they will apply legislation and
thus to escape the political retribution that might be visited
upon them if larger numbers were affected." Id., at 112-113
(Jackson, J., concurring). When the law lays an unequal
hand on those who have committed precisely the same of-
fense, the discrimination is invidious. Cf. Skinner V. Okla-
homa ex rel. Williamson, 316 U. S. 535, 541 (1942). Fur-
ther, the adverse consequences of § 1113 on an identifiable
group are inevitable, creating a strong inference that the ad-
verse consequences were desired. Cf. Personnel Adminis-
trator of Massachusetts V. Feeney, 442 U. S. 256, 279, n. 25
(1979).
The floor debate provides support for that inference. The
House sponsor of § 1113, Representative Solomon, acknowl-
edged criticism that the amendment singled out the disad-
vantaged. "Now, maybe we are discriminating against the
poor. And if we are, I guarantee I am going to come back
with legislation on this floor tomorrow and the next day and
the next day and every day of this session with amendments
that will prohibit any funds from being used for the Job
Training Act if they are not registered, for any unemploy-
ment compensation insurance if they are not registered, and
for any kind of taxpayers' money if they are not registered."
128 Cong. Rec. H4767 (July 28, 1982). 23 "They" are the
3 See also Job Training Partnership Act, Pub. L. 97-300, § 504, 96 Stat.
1399. at 29 U. S. C. § 1504. The Act is a "new job training program for
the drop-out youth who are not prepared for employment. for welfare re-
83-276-DISSENT
20
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
poor-a discrete subgroup of persons who receive financial
benefits from their Government. This animus cannot be
rationalized away by the argument that Congress has an im-
portant interest in the fair allocation of scarce resources.
Entitlement programs of far greater scope than education
aid-for example farm price supports-confer benefits to a
broader spectrum of economic interests, while much of our
tax law-oil depletion allowances, accelerated depreciation,
capital gains, property-owners' deductions-favors the more
advantaged. We can well imagine the effective political re-
sistance that would follow Congress' conditioning rich per-
sons' government benefits and entitlements. I can think of
no constitutionally valid purpose that would justify singling
out the less advantaged for special law enforcement
attention.
Congress has enacted other, constitutional means to en-
force the Selective Service registration laws, means that do
not involve invidious discrimination among subclasses of law-
breakers. The right to an education is too basic, and the
governmental need to discriminate among nonregistrants is
too tenuous for this Court to hide behind the screen of a ra-
tional relationship test to permit the misuse of nondiscrimina-
tory education policy to meet the unrelated goals of military
service.
IV
As the District Court noted, the issue before us "turns not
on whether the registration law should be enforced, but in
cipients who need training to escape from dependency, [and] for the eco-
nomically disadvantaged who cannot compete in the labor market without
help." as well as for dislocated workers. S. Rep. No. 97-469, p. 1 (1982).
29 U. S. C. $ 1504 requires the Secretary of Labor to "insure that each in-
dividual participating in any program established under this Act
has
not violated section 3 of the Military Selective Service Act" by not register-
ing. See also Oversight Hearing. at 85 (remarks of Turnage) (positing
linking compliance requirement with federal employment. unemployment
compensation. Veteran's Administration dependency benefits, Social Secu-
rity survivor's benefits. and CETA programs).
83-276-DISSENT
SELECTIVE SERVICE v. MINN. PUB. INT. RES. GP.
21
what manner." Doe V. Selective Service System, 557 F.
Supp. 937, 950 (1983). For the reasons stated above, I find
§ 1113 of the Military Appropriations Act of 1982 violative of
the Fifth Amendment, both because it compels self-incrimi-
nation, and because it violates due process by denying per-
sons the equal protection of the laws. I respectfully dissent.