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.
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).
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.
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.
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.
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
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, 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, 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 87, the Act may be an attainder. See Cummings v. Missouri, 4 Wall. 277, 324 (1867).
In Cummings the Court struck down a provision of the Missouri post-Civil War Reconstruction Constitution that
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 377, since past affiliation with the Confederacy prevented attorneys from taking the oath without perjuring themselves. See Cummings v. Missouri, supra, at 327. In both Cummings and Garland, the persons in the group disqualified were defined entirely by irreversible acts committed by them.
The District Court in this case viewed § 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
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
The judicial function is "not to destroy the Act if we can, but to construe it, if consistent with the will of Congress, so as to comport with constitutional limitations," CSC v. Letter Carriers, 413 U.S. 548, 571 (1973).
Because it allows late registration, § 12(f) is clearly distinguishable from the provisions struck down in Cummings and Garland.
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, 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 470; United States v. Lovett, 328 U. S., at 324 (Frankfurter, J., concurring).
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 473, 475-476, 478. We conclude that under these criteria § 12(f) is not a punitive bill of attainder.
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 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.
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, 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.
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
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.
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,
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:
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,
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.
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
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, 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 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
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, 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, 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.
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.
The judgment of the District Court is
JUSTICE BLACKMUN took no part in the decision of this case.
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, 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
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.
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.
In sum, I join Parts I, II-B, III, and IV of the Court's opinion, and its judgment.
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.
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.
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.
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 postsecondary 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.
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 849-851, which in turn depends on construing Congress' intent as encouragement of compliance with the Selective Service registration requirement. Ante, at 854. The majority emphasizes the "non-punitive 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 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
I do not take issue with the majority's conclusion, ante, at 856-857, that the Title IV application process itself does not require a student to divulge incriminating information to the educational institution.
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,
A student who registers late provides the Government with two crucial links in the chain of evidence necessary to prosecute him criminally. Cf. Marchetti v. United States, 390 U.S. 39, 48, and n. 9 (1968). First, he supplies the 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, 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
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 postsecondary 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.
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 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 858.
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
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 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, 79 (1965). In Garner v. United States, supra, at 661, the Court noted that the great majority of persons who file income tax returns do not incriminate themselves by disclosing the information required by the Government. 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.
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
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, 429, and 435-436, n. 7 (1984) (opinion of the Court); id., at 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 436, n. 7, and cases cited therein. See also Counselman v. Hitchcock, 142 U. S., at 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, 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.
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 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, 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, 521 (1970) (MARSHALL, J., dissenting). See also San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 98-99 (1973) (MARSHALL, J., dissenting). As a 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 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).
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,
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 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 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
We should reject the suggestion that the putative age-group overlap between the group required to register with Selective Service and the group pursuing postsecondary education is sufficient justification for this law. While it is true that the Equal Protection Clause does not require that legislatures resolve either all or none of a problem, Railway Express Agency, Inc. v. New York, 336 U.S. 106, 110 (1949), it is also true that "nothing opens the door to 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 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, 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, 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
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
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.
"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.
"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).
"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.
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, 619 (1960).
"[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).
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).
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.