Trump Just Automated Draft Entry. It’s Time for the Supreme Court to Step In. |
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Even as the war in Iran has seemed to de-escalate since a ceasefire began last week, we’ve recently witnessed just how out of hand things could possibly still get. One particular development last week has been largely overlooked but demonstrates the depth of the dangers ahead. It also, though, showed a simple possible way to rein in the president’s ability to overreach in his war-making power.
The key, underexplored issue is this: At the same time as Donald Trump has threatened the death of “a whole civilization” and publicly mused about the U.S. military’s “next conquest,” the Office of Information and Regulatory Affairs quietly worked to streamline the selective service registration process. Under a proposed rule implementing a provision of December’s National Defense Authorization Act, all men between 18 and 26 would automatically be registered for the draft. While there is currently no indication that Trump will seek to implement a draft, he has announced a blockade of the Strait of Hormuz while also not ruling out a boots-on-the-ground invasion of Iran and has threatened or implied other large-scale operations in Greenland, Cuba, Venezuela, Colombia, Mexico, and Canada. All this means that the threat of a military draft is now more of a serious one than it has been perhaps at any point in most Americans’ lifetimes.
The concerns around the draft raise a deeper constitutional question that has been too long neglected, along with a possible answer for those concerned about Trump’s authority here. The question is simple: Is the draft itself constitutional? Under Supreme Court precedent, the answer is yes. At the same time, the Roberts court has given significantly less weight to precedent than previous courts. Critically, in overturning Roe v. Wade, the court introduced “history and tradition” analysis as an important consideration when evaluating unenumerated rights—and presumably unenumerated governmental powers. Whether evaluating gun regulations, freedom of religion, or unenumerated rights like that to reproductive autonomy, the justices have repeatedly asked whether a contested practice is consistent with the nation’s historical understanding at the time of the founding. Approached genuinely, that framework poses a serious problem for conscription.
Under this formulation, when a previous decision does not conform with history and tradition, stare decisis—the court’s deference to judicial precedent—is especially weak. Justice Samuel Alito wrote in Dobbs v. Jackson Women’s Health Organization, “Precedents should be respected, but sometimes the Court errs, and occasionally the Court issues an important decision that is egregiously wrong. When that happens, stare decisis is not a straitjacket.” While this decision regarded individual rights rather than governmental powers, one would expect that in a document intensely focused on restraining governmental power, the government would have an even higher bar to clear than a citizen.
That’s where the history is crucial. There was no national draft at the founding. The generation that wrote and ratified the Constitution had direct experience with compulsory service, but it looked nothing like modern conscription. Colonial and early American governments required participation in local militias, which were designed primarily for community defense rather than sustained military campaigns. They were part-time, locally controlled forces, composed of citizens who could be called up in emergencies and then returned to civilian life.
This distinction mattered enormously to the founders, who were deeply suspicious of standing armies and associated them with tyranny and imperial overreach. The Constitution reflects that anxiety. Congress is given the power to “raise and support Armies,” but that power is hedged with limits, including the requirement that appropriations for the army be renewed every two years. By contrast, the militia clauses provide for federal oversight of the organizing, arming, and disciplining of the militias and how they can be federalized, but appointment of officers and training are explicitly reserved for the states.
Early debates confirm that this was no accident. When Secretary of War James Monroe proposed a system of national conscription during the War of 1812, the backlash was immediate and fierce. Critics argued that the federal government lacked the authority to compel individuals into national military service. Among the most prominent opponents was Rep. Daniel Webster, who warned that such a power would fundamentally alter the relationship between the citizen and the state. He argued that a federal draft was “not warranted by any provision of the constitution” and was not “consistent with the character of a free government.”
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For decades, that understanding held. Not until the Civil War did Congress enact a national draft, and even then it was met with significant resistance through both legal and political action and riots in the streets. Chief Justice Roger Taney even drafted an opinion concluding that conscription exceeded Congress’ powers, but no case ever made its way to the U.S. Supreme Court. His reasoning focused on the text of Article I: The authority to “raise” an army, he argued, did not include the power to compel service in it. While the author of Dred Scott v. Sandford is a particularly odious source of constitutional wisdom, his argument echoed a broader antebellum consensus. The Constitution, many believed, allowed the federal government to build an army but not to force citizens into it.
After the Civil War, a new constitutional objection emerged. The 13th Amendment abolished involuntary servitude except as punishment for a crime. Critics of conscription argued that forcing individuals into military service under threat of imprisonment was a clear example of involuntary servitude. However, it would be half a century before the Supreme Court squarely addressed the issue during World War I. In the Selective Draft Law Cases, the court upheld the draft in a sweeping and, frankly, unpersuasive opinion. Rather than engaging deeply with the founding-era record, the justices leaned heavily on functional arguments about national survival and the inherent powers of sovereignty, including significant analysis of laws from other countries that compel military service rather than one grounded in the text of the Constitution. Essentially, the opinion treated conscription as a natural incident of nationhood.
That reasoning sits uneasily with the court’s modern insistence on historical analogy. If history and tradition are the touchstones of constitutional meaning, then the absence of a founding-era draft—and the sustained early resistance to the idea—should carry significant weight. The court has invalidated far less novel exercises of government power on precisely those grounds.
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As President Donald Trump starts and promises more military engagements around the world, this is not simply an academic exercise. The reemergence of draft infrastructure, combined with increasingly expansive claims about executive authority over the military, raises the stakes considerably. Just as during the War of 1812, when hawks pushed the country into another unpopular invasion and then struggled to recruit soldiers to carry on the fight (also as their adversary strangled their trade routes at sea), under a draft, the people of the United States would be called upon to fight and die for a cause most do not believe in that would benefit only the few. Daniel Webster’s words are just as relevant today: “Who will show me any constitutional injunction which makes it the duty of the American people to surrender everything valuable in life, and even life itself, not when the safety of their country and its liberties may demand the sacrifice, but whenever the purposes of an ambitious and mischievous government may require it?”
The Roberts court has said that it is willing—indeed eager—to revisit long-standing precedents that it views as inconsistent with the Constitution’s original meaning. When it comes to denying Donald Trump what he wants, it is generally a losing bet to count on a Supreme Court that more often than not bends over backward to give him a pass. But if its commitment to history and tradition is even remotely genuine, conscription should be on the table. The historical record simply does not support current precedent. Rather, it points to the same conclusion that held for almost the first hundred years of the nation—that the federal government may raise an army, but it may not force anyone to serve in it. And while there is no active draft now, perhaps the transition to automatic registration will inspire some young person to bring the legal challenge that this moment begs.
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