NEW ORLEANS (CN) – An attorney for a men’s rights group argued Tuesday before the Fifth Circuit that the military’s all-male draft registration system, which the Supreme Court upheld in 1981, should now be struck down as unconstitutional.
Marc Angelucci, representing the National Coalition for Men and two men challenging the male-only draft, said a 2015 decision by the military to send women into combat roles should encourage the three-judge appeals court panel to rule that the draft should apply to women too.
Angelucci argued that the 1981 Supreme Court decision came at a time when women were not that involved in combat and now that they are, it should be changed. He further said that it’s the role of lower courts to change old laws as circumstances evolve.
“That doesn’t free us to engage in anticipatory overruling does it?” U.S. Circuit Judge Don Willett, an appointee of President Donald Trump, asked Angelucci during the hearing, which was held Tuesday before an audience of a few dozen students, faculty members and others at Tulane University in New Orleans.
Justice Department attorney Claire Murray told the judges that lower courts don’t have the power to overturn Supreme Court decisions. Furthermore, she said, courts should look to Congress when ruling on military-specific matters.
Regarding the issue of the military draft, Murray said, Congress has not decided that women should be required to register.
Murray said that among the factors that would keep Congress from deciding in favor of including women in the draft is anticipating how many women would die in combat and the need for facilities and equipment specific to women, in the case that women were drafted in equal numbers with men.
But U.S. Circuit Judge Jacques Wiener, a George W. Bush appointee, said the arguments are beside the point if the court decides that the 1981 Supreme Court ruling cannot be challenged.
Tuesday’s arguments were heard on appeal from a decision last year by U.S. District Judge Gray Miller in Houston that said a draft forcing only men to register is unconstitutional.
U.S. Circuit Judge Carl Stewart, an appointee of Bill Clinton, also sat on the Fifth Circuit panel. The judges did not indicate how or when they will rule.
This hearing came in advance of a report expected later this month on the draft. On March 25, a federal commission is expected to release its final report and recommendations, addressing issues such as whether a draft is still necessary and if women should be required to register for it.
Former Republican Congressman Joe Heck of Nevada, who heads the commission, has publicly said he is in favor of requiring women to register for the draft.
In a statement to the Associated Press, Heck said the commission “has been following this case as it progresses, making our work all the more relevant and important.”
Angelucci told the court Tuesday that he will continue to fight for women being required to register no matter what the commission recommends.