Oestereich v. Selective Service System Local Board No. 11/Dissent Stewart

Mr. Justice STEWART, with whom Mr. BRENNAN and Mr. Justice WHITE join, dissenting.

It is clear that in enacting § 10(b)(3) of the Military Selective Service Act of 1967, Congress intended to specify the exclusive methods by which the determinations of Selective Service Boards may be judicially reviewed. Since under the terms of that provision the present suit is plainly premature, I would affirm the judgment of the Court of Appeals.

Section 10(b)(3) provides in pertinent part as follows:

'No judicial review shall be made of the classification or     processing of any registrant by local boards, appeal boards,      or the President, except as a defense to a criminal      prosecution instituted under section 12 of this title, after      the registrant has responded either affirmatively or      negatively to an order to report for induction *  *  * .' It is      unquestioned that the overriding purpose of this provision      was 'to prevent litigious interruptions of procedures to      provide necessary military manpower.' To be sure, the      provision is somewhat inartistically drawn, but its      background and legislative history clearly resolve whatever      difficulties might otherwise be presented by the imprecision      of the draftsman's language.

In interpreting the less explicit terms of predecessor statutes, this Court had established the general rule that draft classifications could not be judicially reviewed prior to the time a registrant was to be inducted. Review was held to be proper only when challenges to such determinations were raised either (1) in defense to a criminal prosecution following a refusal to be inducted, or (2) in habeas corpus proceedings initiated after induction. See Witmer v. United States, 348 U.S. 375, 377, 75 S.Ct. 392, 393, 99 L.Ed. 428; Estep v. United States, 327 U.S. 114, 66 S.Ct. 423, 90 L.Ed. 567; Billings v. Truesdell, 321 U.S. 542, 64 S.Ct. 737, 88 L.Ed. 917; Falbo v. United States, 320 U.S. 549, 64 S.Ct. 346, 88 L.Ed. 305.

Occasionally, however, other federal courts had allowed exceptions to this rule. Section 10(b)(3) was proposed and enacted shortly after the Court of Appeals for the Second Circuit had, in the well-publicized case of Wolff v. Selective Service Local Bd. No. 16, 372 F.2d 817, permitted just such an exception. In adopting the section Congress specifically disapproved those decisions that had deviated from the rule against pre-induction review, and made explicit its absolute commitment against premature judicial interference with the orderly processing of registrants. The Senate Armed Services Committee put the matter this way:

'Until recently, there was no problem in the observance of     the finality provision. In several recent cases, however,     district courts have been brought into selective service      processing prematurely. The committee attaches much     importance to the finality provisions and reemphasizes the      original intent that judicial review of classifications      should not occur until after the registrant's administrative      remedies have been exhausted and the registrant presents      himself for induction.'

A similar statement of intent was included in the report of the House Armed Services Committee:

'The committee was disturbed by the apparent inclination of     some courts to review the classification action of local or appeal boards before the registrant had      exhausted his administrative remedies. Existing law quite     clearly precludes such a judicial review until after a      registrant has been ordered to report for induction and has      responded either affirmatively or negatively to such an      order. In view of this inclination of the courts to     prematurely inquire into the classification action of local      boards, the committee has rewritten this provision of the law      so as to more clearly enunciate this principle. The committee     was prompted to take this action since continued disregard of      this principle of the law by various courts could seriously      affect the administration of the Selective Service System.'

Although the language of § 10(b)(3) contains no explicit reference to habeas corpus as a remedy for inductees seeking to challenge their classifications, that remedy was plainly recognized and approved by Congress. The section provides for review 'after the registrant has responded either affirmatively or negatively to an order to report for induction * *  * .' (Emphasis added.) The remedy for one who responds affirmatively cannot, of course, be by way of 'defense to a criminal prosecution' for refusing to be inducted; the only remedy in such a case is habeas corpus, and the Senate Committee Report made quite clear Congress' understanding in this regard:

'A registrant who presents himself for induction may     challenge his classification by seeking a writ of habeas      corpus after this induction. If the registrant does not     submit to induction, he may raise as a defense to a criminal      prosecution the issue of the legality of the      classification.'

Thus there can be no doubt that § 10(b)(3) was designed to permit judicial review of draft classifications only in connection with criminal prosecutions or habeas corpus proceedings. Today, however the Court holds that § 10(b)(3) does not mean what it says in a case like this, where it is 'plain on the record and on the face of the Act that an exemption ha(s) been granted.' In such a case, it is said, there is a 'clash' between the exemption and the provisions of § 10(b)(3). With all respect, I am simply unable to perceive any 'clash' whatsoever. Exemptions from service are substantive, while § 10(b)(3) is purely procedural, specifying when substantive rights may be asserted. How the Court can conclude that the provisions of § 10(b)(3) somehow do 'violence to' the divinity student exemption is a mystery to me.

The only other reason the Court offers for its casual disregard of § 10(b)(3) is the suggestion that obedience to the statute would lead to 'unnecessary harshness.' But if the statute is constitutional, we have no power to disregard it simply because we think it is harsh. That is a judgment for Congress, not for us. And the Court does not question the law's constitutionality. To the contrary, the constitutionality of § 10(b)(3) is upheld this very day in Clark v. Gabriel, 393 U.S. 256, 89 S.Ct. 424, 21 L.Ed.2d 418, in reaffirmation of several previous decisions in which this Court has enunciated and applied the rule against pre-induction review of Selective Service determinations.

The Court states that its 'construction leaves § 10(b)(3) unimpaired in the normal operations of the Act.' The implication seems to be that the present case is somehow exceptional. But the Court has carved out an 'exception' to § 10(b)(3) in exactly the kind of case where, in terms of the interests at stake, an exception seems least justified. The registrant with a clear statutory exemption is precisely the one least jeopardized by the procedural limitations of § 10(b)(3). For, as the Government has acknowledged, 'the Department of Justice would not prosecute (such a registrant) if he refuses to be inducted, and would promptly confess error if he submits to induction and brings a habeas corpus action.'

It is upon those registrants, rather, whose rights are not so clear that the burden of § 10(b)(3) most harshly falls. For it is they who must choose whether to run the serious risk of a criminal prosecution or submit to induction with the uncertain hope of prevailing in a habeas corpus proceeding. Yet the Court has made plain today in Clark v. Gabriel, supra, that a registrant whose exemption from service is not clear will under § 10(b)(3) be put to just such a fateful choice. In light of Gabriel, the allowance of pre-induction review in the present case thus stands as all the more irrational and unjustified.

I respectfully dissent.