Breen v. Selective Service Local Board No. 16/Concurrence Harlan

Mr. Justice HARLAN, concurring.

While I fully agree with today's holding that pre-induction review is available to the petitioner here, and subscribe to much of the Court's opinion, I would rest the holding on a different footing.

The Court's opinion here, as in Oestereich v. Selective Service Bd., 393 U.S. 233, 89 S.Ct. 414, 21 L.Ed.2d 402 (1968), appears to make the availability of preinduction review turn on the lawfulness of the draft board's action or, to put it another way, on the certainty with which the reviewing court can determine that the registrant would prevail on the merits if there were such judicial review of his classification. On the other hand, under the test put forward in my separate opinion in Oestereich, 393 U.S. 239-245, 89 S.Ct. 417, 420-421, the availability of pre-induction review turns, not on what amounts to an advance decision on the merits, but rather on the nature of the challenge being made.

In Oestereich, the registrant sought pre-induction review of claims that the delinquency procedure employed by the board was 'not authorized by any statute,' was 'inconsistent with his statutory exemption,' and was 'facially unconstitutional,' 393 U.S., at 239, 89 S.Ct., at 417. I pointed out that judicial scrutiny of such legal contentions, unlike the review of 'factual and discretionary decisions' pertaining to a board's classification of a particular registrant, presented no 'opportunity for protracted delay' in the operations of the Selective Service System-the primary congressional concern in enacting § 10(b)(3), 393 U.S., at 241, 89 S.Ct., at 418. To avoid the 'serious constitutional problems' implicit in depriving a registrant of 'his liberty without the prior opportunity to present to any competent forum' his claims that the delinquency procedure was invalid, 393 U.S., at 243, 89 S.Ct., at 419, I therefore interpreted § 10(b)(3) not to preclude pre-induction judicial review. Viewed from the perspective of my opinion in Oestereich, this case is industinguishable, for the petitioner here, as in Oestereich, makes legal challenges to the delinquency procedure that do not require review of a factual and discretionary decision of a board.

As to the merits of petitioner's challenges, I agree, for the reasons stated by the majority, that it makes no difference that through the operation of the delinquency regulations Breen lost a II-S student deferment whereas Oestereich lost a IV-D exemption as a divinity student preparing for the ministry. More generally, the delinquency regulations used here have now been held to be unauthorized by statute, Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970).

On this basis, I concur in the reversal of the judgment below.