Section 12(f) of 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 12(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 Presidential 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
eligibility for Title IV assistance. Appellee students (hereafter
appellees), who have not registered for the draft, brought suits in
Federal District Court seeking to enjoin the enforcement of §
12(f). The District Court granted the requested relief, holding
that the regulations making late registrants eligible for Title IV
aid were inconsistent with the statute, and that § 12(f) is an
unconstitutional bill of attainder because it singles out an
identifiable group that would be ineligible for Title IV aid based
on their failure to register. Alternatively, the District Court
held that § 12(f) also violated appellees' Fifth Amendment
privilege against compelled self-incrimination .
Held:
1. Section 12(f) is not a bill of attainder. Pp.
468 U. S.
846-856.
(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 General Services,
433 U. S. 425,
433 U. S. 468.
Pp. 846-847.
(b) Section 12(f) does not single out nonregistrants and make
them ineligible for Title IV aid based on their past conduct,
i.e., failure to register. The section does not require
registration within the time fixed by the Presidential
Proclamation, and does not make late registrants ineligible for
aid. The contrary view is inconsistent with 12(f)'s structure and
with the legislative history. Section 12(f) 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. The legislative history shows that Congress' purpose in
enacting § 12(f) was to encourage registration
Page 468 U. S. 842
by those who must register, but have not yet done so. Section
12(f)'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.
468 U. S.
847-851.
(c) Section 12(f) 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.
468 U. S.
852-853.
(d) The legislative history shows that § 12(f) 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
12(f) also promotes 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 registering for the draft
when required to do so. Pp.
468 U. S.
853-856.
2. Section 12(f) does not violate appellees' Fifth Amendment
privilege against compelled self-incrimination. Since a student who
has not registered 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
eligible 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 comply 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. Turley, 414 U. S.
70, distinguished. 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 invoking the
privilege. Under these circumstances, appellees will not be heard
to complain that § 12(f) violates their Fifth Amendment rights by
forcing them to acknowledge during the draft registration process
they have avoided that they have registered late. Pp.
468 U. S.
856-858.
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,
post, p.
468 U. S. 859.
BRENNAN,
Page 468 U. S. 843
J.,
post, p.
468 U. S. 862,
and MARSHALL, J.,
post, p.
468 U. S. 862,
filed dissenting opinions. BLACKMUN, J., took no part in the
decision of the case.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
We noted probable jurisdiction to decide (a) whether § 12(f) of
the Military Selective Service Act, 96 Stat. 748, 50 U.S.C.App. §
462(f), 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 Act, is a bill of attainder; and
(b) whether § 12(f) 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, 62 Stat. 605,
as amended, 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. Sections 12(b) and (c) of that
Act impose 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. Presidential
Proclamation No. 4771, 3 CFR 82 (1981).
Page 468 U. S. 844
Appellee students (hereafter appellees) are anonymous
individuals who were required to register before September 1, 1982.
On September 8, Congress enacted the Department of Defense
Authorization Act of 1983, Pub.L. 97-252, 96 Stat. 718. Section
1113(a) of that Act added § 12(f) to the Military Selective Service
Act. Section 12(f)(1) provides that any person who is required to
register and fails to do so "in accordance with any proclamation"
issued under the 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." [
Footnote 1] Section 12(f)(2) requires applicants
for Title IV assistance to file with their institutions of higher
education a statement attesting to their compliance with the draft
registration law and regulations issued under it. Sections 12(f)(3)
and (4) require the Secretary of Education, in agreement with the
Director of Selective Service, 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 establish eligibility for Title IV
aid by registering, filing a statement of registration compliance,
and, if required, verifying that he is registered. § 668.27(b)(1).
The statement of compliance does not require the applicant to state
the date that he registered. [
Footnote 2]
Page 468 U. S. 845
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 § 12(f).
The District Court dismissed the Minnesota Group for lack of
standing, but allowed three anonymous students to intervene as
plaintiffs.
557 F.
Supp. 923 (1983);
557 F.
Supp. 925 (1983). The intervenors alleged that they reside 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 Selective Service, but
have failed to do so. This suit was informally consolidated with a
separate action brought by three other anonymous students making
essentially the same allegations as the intervenors.
In March, 1983 the District Court granted a preliminary
injunction restraining the Selective Service System from enforcing
§ 12(f). After finding that appellees had demonstrated 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 § 12(f) was a bill of attainder.
Page 468 U. S. 846
The court interpreted the statutory bar to student aid as
applicable to students who registered late. Thus interpreted, the
statute "clearly singles out an ascertainable group based on past
conduct," and "legislatively determines the guilt of this
ascertainable group."
Doe v. Selective Service
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 § 12(f) violated appellees' Fifth Amendment privilege against
compelled self-incrimination. In the District Court's view, the
statement of compliance required by § 12(f)(2) 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.App. §
462(a).
On June 16, 1983, the District Court entered a permanent,
nationwide injunction against the enforcement of § 12(f). The court
held that the regulations making late registrants eligible for aid
were inconsistent with the statute, and concluded that the statute
was an unconstitutional attainder. It also held the statute to
violate appellees' constitutional privilege 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 appeal.
Selective Service System v. Doe, 463 U.S. 1215. We noted
probable jurisdiction on December 5, 1983, 464 U.S. 1006, and we
reverse.
II
The District Court held that § 12(f) falls within the category
of congressional actions that Art. I, § 9, cl. 3, of the
Constitution bars by providing that "[n]o Bill of Attainder . . .
shall be passed." A bill of attainder was most recently described
by this Court as
"a law that legislatively determines guilt and inflicts
punishment upon an identifiable individual
Page 468 U. S. 847
without provision of the protections of a judicial trial."
Nixon v. Administrator of General Services,
433 U. S. 425,
433 U. S. 468
(1977);
see United States v. O'Brien, 391 U.
S. 367,
391 U. S. 383,
n. 30 (1968);
United States v. Lovett, 328 U.
S. 303,
328 U. S. 315
(1946). Appellants argue that § 12(f) does not satisfy any of these
three requirements,
i.e., specification of the affected
persons, punishment, and lack of a judicial trial. [
Footnote 3]
A
In forbidding bills of attainder, the draftsmen of the
Constitution sought to prohibit the ancient practice of the
Parliament in England of punishing without trial "specifically
designated persons or groups."
United States v. Brown,
381 U. S. 437,
381 U. S. 447
(1965). Historically, bills of attainder generally named the
persons to be punished. However,
"[t]he singling out of an individual for legislatively
prescribed punishment 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 persons."
Communist Party of United States v. Subversive Activities
Control Board, 367 U. S. 1,
367 U. S. 86
(1961). When past activity serves as "a point of reference for the
ascertainment of particular persons ineluctably designated by the
legislature" for punishment,
id. at
367 U. S. 87, the
Act may be an attainder.
See Cummings v.
Missouri, 4 Wall. 277,
71 U. S. 324
(1867).
In
Cummings, the Court struck down a provision of the
Missouri post-Civil War Reconstruction Constitution that
Page 468 U. S. 848
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, society, or organization,
inimical to the government of the United States.'" Id. at
71 U. S. 279.
The Court recognized that the oath was required not "as a means of
ascertaining whether parties were qualified" for their professions,
id. at 71 U. S. 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 person, 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 exclusion" from the practice of
law,
id. at
71 U. S. 377,
since past affiliation with the Confederacy prevented attorneys
from taking the oath without perjuring themselves.
See Cummings
v. Missouri, supra, at
71 U. S. 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 § 12(f) as comparable to
the provisions of the Reconstruction laws declared unconstitutional
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 § 12(f)
disqualifies applicants for financial assistance unless they have
registered "in accordance with any proclamation issued under [§ 3
of the Military Selective Service Act]," and
Page 468 U. S. 849
that Proclamation No. 4771 requires those born after January 1,
1963, to register within 30 days of their 18th birthday.
See 3 CFR 82 (1981). In the court's view, the language of
§ 12(f), coupled with the Proclamation's 30-day registration
requirement, precluded late registrants from qualifying for Title
IV aid. Having construed § 12(f) as precluding 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 conduct. The District Court
acknowledged that implementing regulations would allow students who
had not previously registered to become eligible for Title IV
benefits by registering,
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 § 12(f)'s
requirement of registration within the time prescribed by
Proclamation No. 4771.
We reject the District Court's view that § 12(f) requires
registration within the time fixed by Proclamation No. 4771. That
view is plainly inconsistent with the structure of § 12(f) and with
the legislative history. Subsection (f)(4) of the statute requires
the Secretary of Education to issue regulations providing that "any
person" to whom the Secretary proposes to deny Title IV assistance
shall be given notice of the proposed denial and "not less than
thirty days" after such notice to "establis[h] that he has complied
with the registration requirement." 50 U.S.C.App. § 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
require 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
history. Congress' purpose in enacting § 12(f) was to encourage
Page 468 U. S. 850
registration by those who must register, but have not yet done
so. [
Footnote 4] Proponents of
the legislation emphasized that those failing to register timely
can qualify for aid by registering late. [
Footnote 5] The District Court failed to take account
of this legislative purpose.
See Heckler v. Edwards,
465 U. S. 870
(1984). Nor did its construction of § 12(f) 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,
440 U. S. 144
(1979);
see 128 Cong.Rec. 18363 (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,
413 U. S. 571
(1973). [
Footnote 6] Section
12(f) does not make late registrants ineligible for Title IV
aid.
Because it allows late registration, § 12(f) is clearly
distinguishable from the provisions struck down in
Cummings and
Garland. [
Footnote 7]
Cummings and
Garland
dealt with absolute barriers
Page 468 U. S. 851
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 irreversible. By
contrast, § 12(f)'s requirements, far from irreversible, 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 United States v. Subversive Activities
Control Board, 367 U.S. at 87.
B
Even if the specificity element were deemed satisfied by §
12(f), the statute would not necessarily implicate the Bill of
Attainder Clause. The proscription against bills of attainder
reaches only statutes that inflict punishment on the specified
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 sanction is not
determinative of its character as punishment.
Flemming v.
Nestor, 363 U. S. 603,
363 U. S. 616,
and n. 9 (1960). That burdens are placed on citizens by federal
authority does not make those burdens punishment.
Nixon v.
Administrator of General Services, 433 U.S. at
433 U. S. 470;
United States v. Lovett, 328 U.S. at
328 U. S. 324
(Frankfurter, J., concurring). [
Footnote 8] Conversely, legislative intent to encourage
compliance with the law does not establish that a statute is merely
the legitimate regulation of conduct. Punishment is not limited
solely
Page 468 U. S. 852
to retribution for past events, but may involve deprivations
inflicted to deter future misconduct.
United States v.
Brown, 381 U.S. at
381 U. S.
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 particularized context."
Flemming v.
Nestor, supra, at
363 U. S.
616.
In deciding whether a statute inflicts forbidden punishment, 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 imposed, reasonably can be said
to further nonpunitive legislative purposes"; and (3) whether the
legislative record "evinces a congressional intent to punish."
Nixon, supra, at
425 U. S. 473,
425 U. S.
475-476,
425 U. S. 478.
We conclude that, under these criteria, § 12(f) 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 penalties as
well as those imposing death.
Cummings v.
Missouri, 4 Wall. at 323. Historically used in
England in times of rebellion or "violent political excitements,"
ibid., bills of pains and penalties commonly imposed
imprisonment, banishment, and the punitive confiscation of
property.
Nixon, supra, at
433 U. S. 474.
In our own country, the list of punishments forbidden by the Bill
of Attainder Clause has expanded to include legislative bars to
participation by individuals or groups in specific employments or
professions. [
Footnote 9]
Page 468 U. S. 853
Section 12(f) imposes none of the burdens historically
associated with punishment. As this Court held in
Flemming v.
Nestor, supra, at
363 U. S.
617,
"the sanction is the mere denial of a noncontractual
governmental benefit. No affirmative disability or restraint is
imposed,"
and Congress has inflicted "nothing approaching the
infamous
punishment' of imprisonment" or other disabilities historically
associated with punishment. [Footnote 10]
Congress did not even deprive appellees of Title IV benefits
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,
384 U. S. 368
(1966). A statute that leaves open perpetually the possibility of
qualifying for aid does not fall within the historical meaning of
forbidden legislative punishment.
2
Our inquiry does not end with a determination that § 12(f) 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
Page 468 U. S. 854
statute can be reasonably said to further nonpunitive goals.
Nixon, 433 U.S. at
433 U. S.
475-476.
The legislative history reflects that § 12(f) represents the
considered congressional decision to further nonpunitive
legislative goals. Congress was well aware that more than half a
million young men had failed to comply with the registration
requirement. [
Footnote 11]
The legislators emphasized that one of the primary purposes of §
12(f) was to encourage those required to register to do so.
[
Footnote 12]
Conditioning receipt of Title IV aid on registration is plainly
a rational means to improve compliance with the registration
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, [
Footnote 13] Congress reasonably concluded that § 12(f)
would be a strong tonic to many nonregistrants.
Section 12(f) 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 registering 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.
Page 468 U. S. 855
During these times of extreme budgetary constraints, times when
even the most worthwhile programs are cut back drastically, this
Government has every obligation to see that Federal dollars are
spent in the most fair and prudent manner possible. . . . If
students want to further their education at the expense of their
country, they cannot expect these benefits to be provided without
accepting their fair share of the responsibilities to that
Government. [
Footnote
14]"
Certain aspects of the legislation belie the view that § 12(f)
is a punitive measure. Section 12(f) 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.
18355-18356 (1982) (remarks of Rep. Solomon);
id. at 18357
(remarks of Rep. Simon);
id. at 9666 (remarks of Sen.
Stennis), proponents indicated that they intended 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
convincing support for the view that, in enacting § 12(f), Congress
sought, not to punish anyone, [
Footnote 15] but to promote compliance
Page 468 U. S. 856
with the draft registration requirement and fairness in the
allocation of scarce federal resources. Section 12(f) clearly
furthers nonpunitive legislative goals.
Because § 12(f) 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 § 12(f) as an impermissible
attainder.
III
Appellees assert that § 12(f) 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 §§
12(a) and (b), they contend that § 12(f) requires them -- since in
fact they have not registered -- to confess to a criminal act, and
that this is "compulsion" 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
Page 468 U. S. 857
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.
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, appellants concede that
a late registrant must disclose that his action is untimely when he
makes a late registration with the Selective 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
§ 12(f) violates appellees' Fifth Amendment rights because they
must register late in order to get aid, and thus reveal to the
Selective Service the failure to comply timely with the
registration law. Appellees contend that, under our holding in
Lefkowitz v. Turley, 414 U. S. 70,
414 U. S. 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'] disqualification from public
contracting for five years as a penalty for asserting a
constitutional privilege is violative of their Fifth Amendment
rights."
Id. at
414 U. S. 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 acknowledge his failure to comply. Only when he registers --
including
Page 468 U. S. 858
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 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. 420,
465 U. S. 427
(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,
392 U. S. 276
(1968). However, these appellees, 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, § 12(f) does not
violate their Fifth Amendment rights by forcing them to acknowledge
during the registration process they have avoided that they have
registered late. [
Footnote
16]
Page 468 U. S. 859
IV
We conclude that § 12(f) does not violate the proscription
against bills of attainder. Nor have appellees raised a cognizable
claim under the Fifth Amendment. [
Footnote 17]
The judgment of the District Court is
Reversed.
JUSTICE BLACKMUN took no part in the decision of this case.
[
Footnote 1]
Title IV of the Higher Education Act of 1965, 20 U.S.C. § 1070
et seq., provides financial assistance to qualified
students in post-secondary educational 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.
[
Footnote 2]
The regulations include a model statement of registration
compliance that the Secretary of Education has indicated satisfies
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:"
"___ 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."
"___ I am a permanent resident of the Trust Territory of the
Pacific Islands 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
complete this statement and, if required, give proof to your school
of your registration compliance. . . ."
34 CFR § 668.25 (1983).
[
Footnote 3]
We agree with appellants that the statute does not single out an
identifiable group, and that the denial of Title IV aid does not
constitute punishment. Appellants also argue that § 12(f) does not
dispense with a judicial trial, noting that a hearing is provided
in the event of disagreement between the applicant and the
Secretary about whether the applicant has registered, § 12(f)(4),
and that the decision made at that hearing is subject to judicial
review. Appellants' argument is meritless. Congress has not
provided a judicial trial to those affected by the statute.
[
Footnote 4]
128 Cong.Rec. 18356 (1982) (remarks of Rep. Whitehurst);
ibid. (remarks of Rep. Solomon);
id. at 18369
(remarks of Rep. Stratton);
id. at 9664 (remarks of Sen.
Hayakawa);
id. at 9666 (remarks of Sen. Jepsen).
[
Footnote 5]
Ibid. at 18356 (remarks of Rep. Whitehurst);
id. at 18357 (remarks of Rep. Simon);
id. at
18368 (remarks of Rep. Montgomery);
id. at 18369 (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 correctly 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 comply with the law, and that
will automatically make him eligible so far as this prohibition or
restriction is concerned."
Id. at 9666.
[
Footnote 6]
As the Solicitor General points out, one construction of the
statute that avoids a constitutional problem is to make aid
contingent on registration 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") .
[
Footnote 7]
All of the appellees in this case had failed to comply with the
registration requirements when § 12(f) was enacted. As to
18-year-olds who have entered the class of nonregistrants after
August 9, 1982 -- 30 days before the enactment of § 12(f) -- the
statute is clearly prospective; ineligibility for financial aid is
merely a deprivation in addition to potential criminal liability
for the failure to register for the draft.
[
Footnote 8]
"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 enjoyed. But there may be reasons other than
punitive for such deprivation."
328 U.S. at
328 U. S.
324.
[
Footnote 9]
See, e.g., United States v. Brown, 381 U.
S. 437 (1965), in which Communist 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
Ex parte
Garland, 4 Wall. 333 (1867), in which lawyers were
barred from the practice of law.
[
Footnote 10]
Appellees argue that the underpinnings of
Flemming have
been removed by
Goldberg v. Kelly, 397 U.
S. 254,
397 U. S. 262
(1970), and
Mathews v. Eldridge, 424 U.
S. 319,
424 U. S. 332
(1976).
Goldberg held only that public assistance
"benefits are a matter of statutory entitlement for persons
qualified to receive them," 397 U.S. at
397 U. S. 262,
and that due process affords qualified recipients a pretermination
evidentiary hearing to guard against erroneous termination. The
Court stressed that
"the crucial factor in this context . . . 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
397 U. S. 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
363 U. S. 611,
while holding that Congress' disqualification of certain deportees
from receipt of Social Security benefits was not an attainder,
id. at
363 U. S.
617.
[
Footnote 11]
See, e.g., 128 Cong.Rec. 18356 (1982) (remarks of Rep.
Solomon);
id. at 9666 (remarks of Sen. Jepsen).
[
Footnote 12]
See id. at 18356 (remarks of Rep. Solomon);
id. at 18369 (remarks of Rep. Stratton);
id. at
9664 (remarks of Sen. Hayakawa);
id. at 9666 (remarks of
Sen. Stennis);
ibid. (remarks of Sen. Jepsen).
[
Footnote 13]
The Military Selective Service Act, 50 U.S.C.App. § 453,
requires certain males between the ages of 18 and 26 to register.
Those who fail to register, 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
post-secondary educational programs at colleges, universities, and
vocational schools. 20 U.S.C. § 1085(a);
see n 1,
supra.
[
Footnote 14]
128 Cong.Rec. 9664-9665 (1982) (remarks of Sen. Hayakawa);
see also id. at 9664 (remarks of Sen. Mattingly);
id. at 18356 (remarks of Rep. Montgomery).
[
Footnote 15]
Applying the third part of the
Nixon test, the District
Court concluded that § 12(f) 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. 18358-18359 (1982) (remarks of Rep.
Edgar);
id. at 18359-18360 (remarks of Rep. Goldwater);
id. at 9666 (remarks of Sen. Durenberger). These
statements are entitled to little, if any, weight, since they were
made by opponents of the legislation.
Schwegmann Bros. v.
Calvert Distillers Corp., 341 U. S. 384,
341 U. S.
394-395 (1951).
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. 18356 (1982) (remarks of Rep. Montgomery);
id.
at 9665 (remarks of Sen. Hayakawa). But such statements do not
constitute
"the unmistakable evidence of punitive intent which . . . is
required before a Congressional enactment of this kind may be
struck down."
Flemming v. Nestor, 363 U. S. 603,
363 U. S. 619
(1960).
[
Footnote 16]
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 exception 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
390 U. S. 73
(BRENNAN, J., concurring);
United States v. Sullivan,
274 U. S. 259,
274 U. S. 263
(1927).
[
Footnote 17]
Appellees also assert that § 12(f) violates equal protection
because it discriminates against less wealthy nonregistrants. That
argument is meritless. Section 12(f) treats all nonregistrants
alike, denying aid to both the poor and the wealthy. But even if
the statute discriminated against poor nonregistrants because more
wealthy nonregistrants could continue to pay for their
post-secondary educations, the statute must be sustained if
rationally related to a legitimate Government interest.
Harris
v. McRae, 448 U. S. 297,
448 U. S.
322-324 (1980). That standard is easily met here,
because § 12(f) is rationally related to the legitimate Government
objectives of encouraging registration and fairly allocating scarce
federal resources.
See supra at
468 U. S.
854.
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 § 12(f) of the Military Selective Service Act, as added by §
1113(a) of the Department of Defense Authorization Act of 1983, is
not punitive legislation.
Unless § 12(f) is punitive in its purpose and effect, there is
no bill of attainder.
Nixon v. Administrator of General
Services, 433 U. S. 425,
433 U. S. 472
(1977). The term "punitive" connotes punishment as for a crime.
Young men who knowingly have failed to comply with the registration
requirements of the Selective Service Act have committed a
crime
Page 468 U. S. 860
for which the Act itself provides the only punishment. [
Footnote 2/1] Section 12(f) is in no sense
punitive; it authorizes no punishment 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 12(f) applies broadly and equally to every male citizen
and resident alien who upon attaining 18 years of age is required
by Presidential order to register with the Selective Service.
[
Footnote 2/2] As its legislative
history makes clear, § 12(f) was enacted to encourage compliance
with the Military 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 Congress, by § 12(f), has adopted a "rational means"
to encourage compliance with law.
Ante at
468 U. S. 854.
It is encouragement only; not compulsion. Moreover, the interest of
Government -- indeed of the people of our country --
Page 468 U. S. 861
in providing for national security is
compelling. It
has been recognized as such from the earliest days of the Republic.
[
Footnote 2/3] The Preamble of the
Constitution declares that one of the Framers' purposes was to
"provide for the common defence." [
Footnote 2/4]
As I find that § 12(f) is punitive neither in its purpose nor in
its effect, it is unnecessary, in my view, to reach the other
arguments addressed by the Court on the bill of attainder issue.
[
Footnote 2/5] I add, however, that
I do not disagree with the
Page 468 U. S. 862
Court's reasoning, except to the extent it relies upon the
Secretary's regulation that "interprets" the 1983 Act. In view of
the compelling interest of Government, the constitutionality of §
12(f) does not depend upon this interpretation.
In sum, I join Parts I, II-B, III, and IV of the Court's
opinion, and its judgment.
[
Footnote 2/1]
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 required of him under or in the
execution of this title, or rules, regulations, or directions made
pursuant to this title . . . shall, upon conviction in any district
court of the United States of competent jurisdiction, be punished
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(a).
[
Footnote 2/2]
Young men in the United States are required only to register for
military service, when most of the other major countries of the
world require this service. In the North Atlantic Treaty
Organization, for example, the following countries have compulsory
military service: Belgium, Denmark, France, Greece, Italy,
Netherlands, 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 Balance 1983-1984 (1983).
[
Footnote 2/3]
The Federalist Papers, the essays arguing in favor of adoption
of the Constitution, are replete with emphasis on the need for a
national government to provide for defense by raising and
maintaining armed forces. In John Jay's prescient Paper, No. 4, he
observed: The
"safety of the people 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 nature, that nations in general will make war whenever they
have a prospect of getting anything by it; [and] absolute monarchs
will often make war when their nations are to get nothing by it. .
. ."
The Federalist No. 4, 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 incapacitated by its constitution to
prepare for defence 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).
[
Footnote 2/4]
Article I, § 8, of the Constitution expressly empowers Congress,
in a single clause, "to pay the Debts and provide for the common
Defense and general Welfare of the United States."
[
Footnote 2/5]
In support of their contention that § 12(f) is a form of
punishment, appellees cite
Ex parte
Garland, 4 Wall. 333 (1867),
Cummings
v. Missouri, 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 328 U. S. 316.
Those cases are inapposite here. Section 12(f) 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.
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 § 12(f) of the Military Selective Service
Act, as added by § 1113(a) of the Department of Defense
Authorization Act of 1983, compels those students seeking financial
aid who have not registered with the Selective Service in timely
fashion to incriminate themselves, and thereby violates the Fifth
Amendment.
JUSTICE MARSHALL, dissenting.
In 1980, after a 5-year suspension, the United States Government
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. [
Footnote 3/1] 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
offends constitutional guarantees of individual rights. I conclude
that § 12(f) fails to pass constitutional muster on two grounds.
First, it compels self-incrimination, in violation of
Page 468 U. S. 863
the Fifth Amendment. Second, it violates the right to equal
protection of the laws guaranteed under the Due Process Clause of
that Amendment.
I
At the time of the enactment of the statute before the Court
today, Congress understood that, of the draft-eligible population
of 9,039,000 men, some 674,000 had failed to register, and many
more registrants had failed to provide current mailing addresses.
[
Footnote 3/2] Explanations for
this widespread dereliction 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
nonregistrants are "uninformed of the requirement or are unaware of
the importance of registration," [
Footnote 3/3] while only "a relatively small number of
nonregistrants have
knowingly' neglected their duty." [Footnote 3/4] Private organizations have
testified that noncompliance with the Selective Service law "is
grounded in registration's violation of individual conscience and
its infringement of religious freedom"; [Footnote 3/5] that they oppose
Page 468 U. S.
864
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; [Footnote 3/6] and that
many cannot register as a matter of conscience because current
regulations prohibit them from adjudicating their conscientious
objector status prior to induction. [Footnote 3/7]
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. [
Footnote
3/8] To identify and locate nonregistrants, Selective Service
has collected Social Security numbers on draft registration forms,
and located nonregistrants through computer data bank sharing with
the Department of Health and Human Services and through mail
forwarding by the Internal Revenue Service. [
Footnote 3/9] Several persons
Page 468 U. S. 865
have been prosecuted for their failure to register, and 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 seriousness of the failure to do so.
[
Footnote 3/10]
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
Department of Defense Authorization Act of 1983. Section 1113(a)
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 person 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.
Page 468 U. S. 866
It is tempting to succumb to the comfortable conclusions the
majority draws after its glancing review of this legislation. After
all, the Government has an explicit constitutional duty to provide
for the common defense. "[I]n a free society," as Congress has
declared,
"the obligations and privileges of serving in the armed forces
and the reserve components 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 promoting § 12(f) seems unexceptional: youth should accept
the obligations as well as the privileges of a democracy. [
Footnote 3/11] Nevertheless, mindful that
"[i]t is the duty of courts to be watchful for the constitutional
rights of the citizen, and against any stealthy encroachments
thereon,"
Boyd v. United States, 116 U.
S. 616,
116 U. S.
634-635 (1886), I must dissent.
II
I do not have to disagree with the majority that § 12(f) does
not violate the constitutional prohibition against bills of
attainder. That holding depends on construing the statute to permit
late registration,
ante at
468 U. S.
849-851, which in turn depends on construing Congress'
intent as encouragement of compliance with the Selective Service
registration requirement.
Ante at
468 U. S. 854.
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 registering late."
Ante
at
468 U. S. 855.
Congress did not, however, grant immunity from criminal prosecution
for that act of late registration. Absent such a grant, § 12(f)
must be struck because it compels self-incrimination.
The Fifth Amendment privilege against coerced self-incrimination
extends to every means of government information
Page 468 U. S. 867
gathering.
Lefkowitz v. Turley, 414 U. S.
70,
414 U. S. 77
(1973);
Murphy v. Waterfront Comm'n, 378 U. S.
52,
378 U. S. 90
(1964) (WHITE, J., concurring);
Counselman v. Hitchcock,
142 U. S. 547,
142 U. S. 562
(1892). In our regulatory state, the line between 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. [
Footnote 3/12]
I do not take issue with the majority's conclusion,
ante at
468 U. S.
856-857, that the Title IV application process itself
does not require a student to divulge incriminating information to
the educational institution. [
Footnote 3/13] The neutrality of this compliance
verification system is central to the majority's acceptance of the
permissible, regulatory purpose of the statute. However, our
inquiry cannot stop there. Although § 12(f) does not coerce an
admission of nonregistration, it does coerce registration with the
Selective Service System, and hence individual 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 financial 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 proclamation" issued under § 3
of the Military Selective Service Act,
Page 468 U. S. 868
50 U.S.C.App. § 453. § 462(f)(1). Failure to comply with
Selective Service registration requirements within 30 days of one's
18th birthday is a felony, punishable by imprisonment 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,
390 U. S. 48,
and n. 9 (1968). First, he supplies the Government with proof of
two elements of a violation: his birth date and date of
registration. Second, and perhaps more importantly, he calls
attention to the fact that he is one of the 674,000 young men in
technical violation of the Military Selective Service Act. Armed
with these data, the Government need prove only that the student
"knowingly" failed to register at the time prescribed by law in
order to obtain a conviction. 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
Government 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 prosecution, and
that the risk is not "so improbable that no reasonable man would
suffer it to influence his conduct."
Brown v. Walker,
161 U. S. 591,
161 U. S.
599-600 (1896). In their brief to this Court, for
example, the appellants explicitly acknowledge 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 Appellants 17, n. 7. The Government 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 registering men convey the same message. For
example, both the "Registration Form," SSS Form 1, and the
"Acknowledgement Letter," SSS Form 3A, which is mailed to men as
legal proof of compliance with Selective Service
Page 468 U. S. 869
registration requirements, advise registrants that the
information they have provided
"may be furnished to the . . . Department of 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. [
Footnote 3/14] 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-incrimination and prosecution
inherent in the act of late registration. [
Footnote 3/15]
Page 468 U. S. 870
Having established that late registration is an incriminating
act, the question to be asked is whether the Government has
exercised its powers in a way that deprives appellees of the
freedom to refrain from self-incrimination through late
registration.
Garrity v. New Jersey, 385 U.
S. 493,
385 U. S. 496
(1967);
Malloy v. Hogan, 378 U. S. 1,
378 U. S. 8
(1964). When the Government 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
414 U. S. 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);
Gardner 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 economic
coercion, and falls within the ambit of these cases. For students
who had received federal education aid before enactment of § 12(f),
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 § 12(f). All
students understand that entry into most professions and technical
trades requires post-secondary education. For students who cannot
otherwise afford this education, compliance with § 12(f) 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.
Page 468 U. S. 871
By withholding federal aid and the opportunity to obtain
post-secondary education, § 12(f) levies a substantial burden 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
385 U. S. 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 completely agree with appellees that this
enforcement mechanism 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. [
Footnote 3/16]
Moreover, I do not understand the Court today to dispute that §
12(f) raises serious Fifth Amendment problems. The Court concedes
that it would be incriminating for appellees to register with the
Selective Service now.
Ante at
468 U. S. 857.
The Court furthermore strongly suggests that appellees could
exercise 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
468 U. S. 858.
[
Footnote 3/17] The majority
incorrectly
Page 468 U. S. 872
assumes, however, that appellees must claim their 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 without exercising the privilege.
[
Footnote 3/18] The barrier to
prosecuting Military Selective Service Act violators is not so much
the Government's inability to discover a birth date 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 birth date 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
required persons engaged in the business of accepting wagers to
register and pay an occupational and excise tax. Compliance 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 required
Page 468 U. S. 873
forms because they feared that they would be prosecuted 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 invalid a "statutory system
. . . utilized to pierce the anonymity of citizens engaged in
criminal activity."
Grosso v. United States, supra, at
390 U. S. 76
(BRENNAN, J., 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 informing the Government that they were involved in
illegal gambling activities. The Court therefore ruled that
petitioners could exercise their Fifth Amendment rights by making
"a
claim' by silence," Garner v. United States, supra,
at 424 U. S. 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."
Marchetti v.
United States, supra, at
390 U. S. 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, 382 U. S. 70,
382 U. S. 79
(1965). In
Garner v. United States, supra, at
424 U. S. 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. Because the Government has
no reason to anticipate incriminating 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.
Page 468 U. S. 874
To adopt this analogy, however, is to ignore the actual case or
controversy before the Court. When Congress passed § 12(f), its
focus was assuredly not prospective. As the majority explains,
Congress forged the link between education aid and Selective
Service registration in order to bring into compliance with the law
the 674,000 existing nonregistrants, including the six appellees in
these cases.
Ante at
468 U. S.
849-850, and n. 4. Although, as a general matter, it is
correct to say that registration is like an income tax return
(neutral on its face and directed to the (male) population at
large), § 12(f)-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 register
with Selective Service, and at whom § 12(f) was substantially
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 § 12(f) is that it denies students seeking federal aid
the freedom to withhold their identities from the Federal
Government. If appellees assert their Fifth Amendment privilege by
their silence, they are penalized for exercising a constitutional
right by the withholding of education aid. If they succumb to the
economic coercion either by registering, or by registering but
claiming the privilege as to particular disclosures, they have
incriminated themselves.
Thus, I cannot accept the majority's view that appellees' 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 intended 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
Page 468 U. S. 875
Activities Control Board, supra, at
367 U. S. 76. As
in
Albertson, where a federal statute required members of
the Communist Party to register, appellees are put to the choice of
registering, 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
compromising that privilege is to challenge § 12(f) anonymously, as
appellees have done in this case.
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. 420,
465 U. S. 429,
and
465 U. S.
435-436, n. 7 (1984) (opinion of the Court);
id. at
465 U. S. 442
(MARSHALL, J., dissenting). The grant would confirm that Congress'
intent in passing § 12(f) was not to punish nonregistrants, but to
promote compliance with the registration requirement. The
Government
"may validly insist on answers to even incriminating questions .
. . as long as it recognizes that the required answers may not be
used in a criminal proceeding, and thus eliminates the threat of
incrimination."
Minnesota v. Murphy, supra, at
465 U. S. 436,
n. 7, and cases cited therein.
See also Counselman v.
Hitchcock, 142 U.S. at
142 U. S.
564-565, 585-586. The Government has a substantial
interest in obtaining information to assure complete and accurate
Selective Service registration, but obtaining it under the
compulsion of § 12(f), which is "capable of forcing the
self-incrimination which the Amendment forbids,"
Lefkowitz v.
Cunningham, 431 U. S. 801,
431 U. S. 806
(1977), is unconstitutional in the absence of immunity for the
compelled disclosures. If Congress enacted § 12(f) to encourage
compliance with registration requirements, and not to identify and
punish late registrants, the constitutional legislative purpose
would be fulfilled without implicating students' Fifth Amendment
privilege against self-incrimination.
Page 468 U. S. 876
III
The aspect of the law that compels self-incrimination is doubly
troubling because a discrete subgroup of nonregistrants bears the
brunt of the statute. The Federal Government has a duty under the
Due Process Clause of the Fifth Amendment to guarantee to all its
citizens the equal protection of the laws.
Rostker v.
Goldberg, 453 U. S. 57
(1981);
Bolling v. Sharpe, 347 U.
S. 497 (1954). Section 12(f), in my view, violates that
constitutional duty.
The majority's superficial, indeed cavalier, rejection of
appellees' equal protection argument,
ante at
468 U. S. 858,
n. 16, demonstrates once again a "callous indifference to the
realities of life for the poor,"
Flagg Bros., Inc. v.
Brooks, 436 U. S. 149,
436 U. S. 166
(1978) (MARSHALL, J., dissenting), and the inadequacy 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,
397 U. S. 521
(1970) (MARSHALL, J., dissenting).
See also San Antonio
Independent School District v. Rodriguez, 411 U. S.
1,
411 U. S. 98-99
(1973) (MARSHALL, J., dissenting). As a majority of the Court has
noted,
"the courts are called upon to decide whether Congress, acting
under an explicit constitutional grant of authority, has by that
action transgressed an explicit guarantee of individual rights
which limits the authority so conferred,"
and labels "may all too readily become facile abstractions used
to justify a result."
Rostker v. Goldberg, supra, at
453 U. S.
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 § 12(f). 128 Cong.Rec.
18356 (1982) (remarks of Rep. Moffett).
Page 468 U. S. 877
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 incomes under
$6,000 are receiving Title IV aid. U.S. Dept. of Education, Office
of Student Financial Assistance, OSFA Program Book 18 (July 1981)
(hereinafter OSFA Program Book). [
Footnote 3/19] In contrast, only 8% of students
dependent on families with incomes over $30,000 receive any
Department of Education-funded financial aid.
Ibid. In the
Basic Educational 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 § 12(f) "treats all nonregistrants
alike, denying aid to both the poor and the wealthy."
Ante
at
468 U. S. 859,
n. 17. The wealthy do not require, are not applying 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 compulsion to provide incriminating facts to the
Government in the act of late registration. [
Footnote 3/20] Yet the obligation
Page 468 U. S. 878
to comply with the law, and the failure to do so, know no
economic distinction.
As appellees argued in the District Court and in their brief to
this Court, by linking draft compliance with education aid,
Congress has created a
de facto classification based on
wealth, [
Footnote 3/21] 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 18th birthday.
Cf. Yick Wo v. Hopkins,
118 U. S. 356,
118 U. S.
373-374 (1886). Further, § 12(f) clearly burdens these
individuals' interest 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,
457 U. S. 221
(1982). Many of our cases have stressed the extraordinary nature
of
Page 468 U. S. 879
the individual's interest in education.
See, e.g., Plyler v.
Doe, supra, at
457 U. S. 234,
457 U. S. 236
(BLACKMUN, J., concurring);
Vlandis v. Kline, 412 U.
S. 441,
412 U. S. 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. 321,
461 U. S. 346
(1983) (dissenting opinion);
Plyler v. Doe, supra, at
457 U. S.
230-231 (concurring opinion). I have written at length
to explain my position,
San Antonio Independent School District
v. Rodriguez, 411 U.S. at
411 U. S.
110-117, and need not repeat the analysis here.
[
Footnote 3/22]
Declining to look at how § 12(f) actually works, the majority is
satisfied not only that the statute does not disfavor any
classification, but also that it
"is rationally related to the legitimate Government objectives
of encouraging registration and fairly allocating scarce federal
resources."
Ante at
468 U. S. 859,
n. 17. But can Congress' admittedly important interest in enforcing
the Military 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 cannot overlook the fact that
Congress' "understandable indignation" at nonregistrants,
ante at
468 U. S. 856,
n. 15, focused on a discrete subgroup.
If we accept that the purpose of § 12(f) is to promote
compliance with Selective Service registration, then we must also
consider the fit between the law and its object. The
Page 468 U. S. 880
universe of nonregistrants at the time of this legislation was
understood to be more than half a million men. The majority 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
468 U. S. 854,
n. 13.
See Tr. of Oral Arg. 11 (Government has no
information on number of nonregistrants who are receiving financial
aid).
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,
336 U. S. 110
(1949), it is also true that
"nothing opens the door to arbitrary 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
336 U. S.
112-113 (Jackson, J., concurring). When the law lays an
unequal hand on those who have committed precisely the same
offense, the discrimination is invidious.
Cf. Skinner v.
Oklahoma ex rel. Williamson, 316 U. S. 535,
316 U. S. 541
(1942). Further, the adverse consequences of § 12(f) on an
identifiable group are inevitable, creating a strong inference that
the adverse consequences were desired.
Cf. Personnel
Administrator of Massachusetts v. Feeney, 442 U.
S. 256,
442 U. S. 279,
n. 25 (1979).
The floor debate provides support for that inference. The House
sponsor of § 12(f), Representative Solomon, acknowledged criticism
that the amendment singled out the disadvantaged.
"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
Page 468 U. S. 881
Training Act if they are not registered, for any unemployment
compensation insurance if they are not registered, and for any kind
of taxpayers' money if they are not registered."
128 Cong.Rec. 18366 (1982). [
Footnote 3/23] "They" are the 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 important 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 resistance
that would follow Congress' conditioning rich persons' 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 enforce the
Selective Service registration laws, means that do not involve
invidious discrimination among subclasses of lawbreakers. The right
to an education is too basic, and
Page 468 U. S. 882
the governmental need to discriminate among nonregistrants is
too tenuous for this Court to hide behind the screen of a rational
relationship test to permit the misuse of nondiscriminatory
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 what
manner."
Doe v. Selective Service System, 557 F.
Supp. 937, 950 (1983). For the reasons stated above, I find §
12(f) of the Military Selective Service Act violative of the Fifth
Amendment, both because it compels self-incrimination and because
it violates due process by denying persons the equal protection of
the laws. I respectfully dissent.
[
Footnote 3/1]
Registration consists of completing SSS Form 1, available at any
post office. The form requires the registrant to provide date of
birth, sex, Social Security number, name, current and permanent
mailing address, current 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 registrant is under a
continuing duty to notify Selective Service of changes in these
data.
[
Footnote 3/2]
Oversight Hearing on Selective Service Prosecutions before the
Subcommittee on Courts, Civil Liberties, and the Administration of
Justice of the House Committee on the Judiciary, 97th Cong., 2d
Sess., 10 (1982) (hereinafter Oversight Hearing) (statement of
Director of Selective Service, Maj. Gen. Thomas Turnage (Ret.))
(hereinafter Turnage); Attachment 17,
id. at 95-105
(Report of General Accounting Office). On the floor of the House
the same day, Representative Solomon estimated 93% compliance and
700,000 nonregistrants. 128 Cong.Rec. 18355-18356 (1982).
[
Footnote 3/3]
Oversight Hearing, at 11 (statement of Turnage);
see also
id. at 7 (statement of Kenneth J. Coffey, Associate Director,
(Military) Federal Personnel and Compensation Division, U.S.
General Accounting Office).
[
Footnote 3/4]
Id. at 10 (statement of Turnage).
[
Footnote 3/5]
Id. at 47 (statement of Delton Franz for the National
Interreligious Service Board for Conscientious Objectors). This
group understands registration to be an integral part of
conscription for war. Oversight Hearing, at 47-48.
Cf. Rostker
v. Goldberg, 453 U. S. 57,
453 U. S. 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 concerning
registration and the draft are based on judgments concerning
military operations and [combat] needs . . .").
[
Footnote 3/6]
Oversight Hearing, at 35 (statement of David Landau, Legislative
Counsel, American Civil Liberties Union, Washington, D.C.)
(expressing concern that data collected for,
e.g., tax and
Social Security purposes, upon a promise of confidentiality, are
being used for enforcement purposes, by exemptions from the Privacy
Act of 1974, which generally prohibits data-matching among
Government agencies).
See also 468
U.S. 841fn3/9|>n. 9,
infra.
[
Footnote 3/7]
Oversight Hearing, at 34-35 (statement of Landau) (contrasting
regulations under prior draft, permitting application for
conscientious objector status immediately after registration, and
current regulations, presumptively 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).
[
Footnote 3/8]
Id. at 81-82 (statement of Turnage).
[
Footnote 3/9]
After a class action successfully challenged agency practice as
a violation of the Privacy Act of 1974, § 2, note following 5
U.S.C. § 552a (statutory authorization required to collect Social
Security numbers), Congress amended the Military 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 authorized 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
required to register for the draft. 50 U.S.C.App. § 462(e).
The agency also has considered cooperation with nonfederal data
systems, such as state drivers' licenses, and private data systems
on a fee basis. Oversight Hearing, at 84.
[
Footnote 3/10]
Id. at 13-14 (statement of Lawrence Lippe, Criminal
Division, Department of Justice) (159 persons, self-identified
nonregistrants or reported by others, referred to United States
Attorneys for possible prosecution; Department "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,
467 U.S. 1214 (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.
[
Footnote 3/11]
See 128 Cong.Rec. 9665 (1982) (remarks of Sen.
Hayakawa).
[
Footnote 3/12]
Of course, there are other "rights of constitutional stature
whose exercise [government] may not condition by the exaction of a
price,"
Garrity v. New Jersey, 385 U.
S. 493,
385 U. S. 500
(1967), such as the exercise of rights guaranteed 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.
[
Footnote 3/13]
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 registration, SSS Form 3A, required of all students
after July 1, 1985, contains a "Date of Record," which would appear
not to be the date of registration. 34 CFR §§ 668.26(b), (d)(1)
(1983).
[
Footnote 3/14]
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).
[
Footnote 3/15]
Appellants' contention that the threat of incrimination is
speculative, and that therefore the Fifth Amendment is not
implicated, rests entirely on the assertion that, under current
(but concededly not "immutable") policy, prosecution for late
registration is unlikely. Reply Brief for Appellants 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. 154,
464 U. S. 161
(1984). Considering that the statute of limitations for Selective
Service registration 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 unpredictability 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 nonregistration: a possible prison term of five years and/or a
possible fine of $10,000.
[
Footnote 3/16]
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,
397 U. S. 7-10
(1970), is simply inapplicable in "the classic penalty situation
[which excuses] the failure to assert the privilege."
Minnesota
v. Murphy, 465 U. S. 420,
465 U. S. 435,
and n. 7 (1984);
see also id. at
465 U. S.
443-446 (MARSHALL, J., dissenting).
[
Footnote 3/17]
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,
142 U. S.
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
Congress' aims.
[
Footnote 3/18]
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 Amendment by appellees gives the Government
a different quality of information.
[
Footnote 3/19]
Although the OSFA Program Book is published annually, we cite to
the 1981 edition because it contains the most recent statistics for
distribution of federal education aid by income and ethnic group.
Unless otherwise noted, the figures reported in the 1981 OSFA
Program Book are for the 1978-1979 academic year.
[
Footnote 3/20]
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 Educational Opportunity Grant
recipients, and 46.4% of Work Study grants recipients 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
minorities. U.S. Dept. of Commerce, Statistical Abstract of the
United States 161, Table 258 (1984). Section 12(f) also penalizes
only male students. 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
conclusion, noting that the statute "thereby categorically excludes
women from a fundamental civic obligation,"
id. at
453 U. S. 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 women are similarly situated for purposes of the allocation
of education funds. That principle should not be undermined by
co-opting education law to enforce criminal laws.
[
Footnote 3/21]
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 position of political powerlessness as to command
extraordinary protection from the majoritarian political process."
San Antonio Independent School District v. Rodriguez,
411 U. S. 1,
411 U. S. 28
(1973) (opinion of the Court);
United States v. Carolene
Products Co., 304 U. S. 144,
304 U. S. 152,
n. 4 (1938).
[
Footnote 3/22]
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 distinctions and political disadvantage is
equally relevant here. Post-secondary education is the necessary
prerequisite to pursuit of countless vocations, 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).
[
Footnote 3/23]
See also Job Training Partnership Act, Pub.L. 97-300, §
504, 96 Stat. 1399, 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 recipients who need training
to escape from dependency, [and] for the economically disadvantaged
who cannot compete in the labor market without help,"
as well as for dislocated workers. S.Rep. No. 97-469, p. 1
(1982). Title 29 U.S.C. 1504 requires the Secretary of Labor to
"insure that each individual participating in any program
established under this Act . . . has not violated section 3 of the
Military Selective Service Act"
by not registering.
See also Oversight Hearing, at 85
(remarks of Turnage) (positing linking compliance requirement with
federal employment, unemployment compensation, Veterans'
Administration dependency benefits, Social Security survivor's
benefits, and Comprehensive Employment and Training Act
programs).