Breen v. Selective Service Local Board No. 16

RESPONDENT:Selective Service Local Board No. 16
LOCATION:Holmes County Board of Education

DECIDED BY: Burger Court (1969-1970)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 396 US 460 (1970)
ARGUED: Nov 19, 1969
DECIDED: Jan 26, 1970

Facts of the case


Audio Transcription for Oral Argument – November 19, 1969 in Breen v. Selective Service Local Board No. 16

Warren E. Burger:

Number 65, Breen against the Selective Service Board.

Emanuel Margolis:

Mr. Chief Justice and may it please it the Court.

Warren E. Burger:

Mr. Margolis.

Emanuel Margolis:

The question presented in this case, I think, can be fairly reduced to the following whether in the light of this Court’s decisions in Oestereich and Gabriel.

Section 10 (b) (3) of the Military Selective Service Act of 1967 precludes pre-induction judicial review of delinquency, reclassification processes by local draft board against a full time undergraduate student who is statutorily entitled to a II-S classification simply because he surrendered his draft card to a clergymen to register his dissent against the war in Vietnam.

Put another way, the question is, does Oestereich control this case or does Gabriel control it?

The facts in the case are admitted for purposes of this appeal and are further agreed to and the agreed statement on appeal which is part of the appendix.

The petitioner at the time in question was a 19-year old undergraduate student at the Berklee School of Music in 1967, a school located in Boston, Massachusetts.

At that time, he was satisfactorily pursuing a full time course of instruction at the college and was properly classified by his local board, board number 16 in Bridgeport, Connecticut as a II-S for the academic year in 1967 to 1968.

At all relevant times, the petitioner maintained the necessary status for his II-S in full compliance with all of the statutory requirements.

On November 16th 1967, the petitioner along with numerous others took part in a meeting at the Arlington Street Church in Boston protesting the war in Vietnam and in the course of this meeting delivered his registration certificate along with a number of other registrants to a clergymen for the sole purpose of registering his dissent against the war in Vietnam.

The action by the petitioner was peaceful.

It was nonviolent and it was expressed as a form of speech under the First Amendment.

A few weeks prior to this occasion, a memorandum and letter was issued from the director of Selective Service General Hershey which was addressed to all members and officials of the Selective Service System.

This memorandum and letter which we will herein after refer to as the Hershey directive and instructed and advised the members of the system to strip deferments and exemptions from all registrants who in anyway violate the Selective Service regulations or its related processes or who take part in any so-called illegal demonstrations.

The directive further recommended that the delinquency reclassification induction procedure be pursued for any registrant who abandons his draft card or his classification card.

Subsequent to the action by the petitioner on January 9th, 1968, he received a simultaneous declaration of delinquency and reclassification in the mail, reclassification from II-S to I-A.

This was a clear implementation of the directive of General Hershey and as the court below aptly put it, it was certainly in line with this directive.

The ground set forth in the delinquency notice were “failure to have registrations certificate in your possession”.

Two days later, the petitioner was ordered for a physical examination and in early February of 1968, he appealed his reclassification.

The litigation below was commenced on February 20th, 1968 in the District Court for Connecticut wherein a declaratory judgment and injunction and other relief was asked by way of a remedy on behalf of the petitioner together with other forms of relief including damages.

The initial hearing before that Court took place on March 1st 1968 where a temporary restraining order was obtained.

However, on March 8, 1968, all of the petitioner’s claims for relief were denied, the temporary restraining order was dissolved and the respondent’s motion to dismiss was granted primarily on the grounds that 10 (b) (3) deprived the District Court of jurisdiction.

On April 30, 1968, subsequent to the litigation, the Appeal Board for Connecticut confirmed the classification of the petitioner’s I-A.

Prior to that time had passed his physical examination and was ordered to report for induction.

He has not reported for induction based on stays obtained by the District Court subsequently by the Court of Appeals and eventually by this Court.

The rationale by the Court of Appeals in upholding the action of the District Court was geared clearly to differentiation which it drew between this Court’s decisions and Oestereich and in Gabriel.

The Court held that Oestereich was distinguishable based on a demarcation between exemption and deferment under the statute with extremely heavy reliance upon Gabriel.

Petitioner contends that the essential error below is in the failure of the majority in its opinion to identify the case as it should have with Oestereich rather than with Gabriel.

We submit that the Oestereich case clearly and unmistakably controls the case at bar and we submit this initially for factual reasons because the salient facts in both Oestereich and in a case at bar are absolutely identical in at least seven respects.

Emanuel Margolis:

In the first place, both cases involved full time undergraduate students.

Second, both involved the surrender of draft cards as a conscientious dissent by personal commitment against the war in Vietnam.

Third, both involved explicit and unqualified statutory rights at stake in both cases.

Fourth, there is in neither case any discretion or exercise of judgment or weighing of evidence by the local board.

Fifth, both involve the application of the delinquency regulations directly pursuant to the Hershey directive.

Sixth, the registrants in both cases were punitively reclassified I-A pursuant to that directive.

And seventh, there was a simultaneous declaration in both cases of delinquency and a I-A reclassification.

Petitioner submits that the facts in Gabriel are not reconcilable with any single one of those seven factual elements in Oestereich and Breen, and for that reason, Gabriel is irrelevant to consideration of the case at bar.

We submit by way of legal argument that the exemption, deferment, distinction which was drawn by the court below and on which heavy emphasis is placed by the respondents is totally unsupported in at least four aspects.

The first place, unsupported by the legislative history of the statute which reflects the congressional intent in passing the Military Selective Service Act of 1967.

Secondly, it is unsupported by the wording of the statute itself.

Thirdly, it’s unsupported by the wording of the Selective Service Regulations.

And fourthly, it is unsupported by the pertinent and relevant case law by Court of Appeal’s decisions below.

The legislative history of this statute is extensively described in both the House and Senate reports leading up to the passage of this Act and in particular in House Report number 267 which stresses the importance in the passage of the new Act of immunizing full time undergraduate students from any disruption of their education by way of untimely induction and stressing further the fact that this was in the public interest or this clear and unmistakable immunity to apply.

There was a very distinct effort on the part of both the House and the Senate to remove local board discretion based on class standing in favor of what is described in the legislative history as a uniform deferment policy with a statutory and clear cut criteria for all undergraduate student deferments and also significant and I intend to go back to this later on.

The new statute in 1967 removes the discretionary term authorize, where the President has authorized to grant student deferments and replaces it with the mandatory word ‘shall’ and further goes on to remove the further discretionary language in the old Act which talked about authorizing deferments only when necessary to the maintenance of the national health safety or interest, that was removed and what we now have in the statute are five clear cut statutory criteria leaving no discretion to the local boards whatsoever if these criteria are met.

Namely, that a II-S will be granted in the following instances.

First, if the student is pursuing a full time course of instruction; second, if he is attending a college, a university or a similar institution of higher learning; third, that he is pursuing a course of instruction satisfactorily; fourth, if he has not yet attained a baccalaureate degree; and fifth, if he has not attained his 24th birthday.

These are the clear statutory criteria set forth by the Congress deliberately and intentionally, so that there should be no mistaking about when a student was or was not entitled to his deferment.

And as far as the case at bar is concerned, there is no question.

It’s not contested that Mr. Breen met every single one of these criteria.

The national policy and the statutory criteria are further reflected in the specific restriction upon the President which was also introduced in the 1967 statute was non-existent prior to that time, that such deferments shall not be restricted or terminated without a specific finding by the President — that the needs of the Armed Forces require such action and of course, there has been no such finding by the President of United States.

So that taking all of these elements together, it is not surprising that if the dissenting opinion below pointed out that this is about as clear a statement of congressional intent as you can get made all and more specific, all the more emphatic rather by its appearance in the Selective Service Act for the first time in the 1967 Amendments.

The statute insofar as congressional intent is concerned, is further buttressed in the following way by a very brief except that I’d like to read from the conference report of the Senate and House prior to the passage of the Act and talking about these changes.

This is what the report says at 1359 of the House Report number 267.

The language incorporates the original House recommendation in respect to undergraduate student deferments and would provide them uniformly to all registrants who requested and qualified for such a deferment.

These undergraduate deferments would continue only until a registrant had received the baccalaureate degree, failed to continue to pursue a full time course of instruction satisfactorily or reached the age of 24 whichever occurred first.

I submit there’s no question about the legislative intent here.

Now, the other main problem of respondent’s argument has to do with the proposition that an exempt registrant as in Oestereich is somehow outside the system, outside the Selective Service System entirely and it quotes, a Court of Appeal’s decision Anderson against Hershey in support of this rationale.

Petitioner contends that an exempt student is no more outside the system than a deferred system — than a deferred student.

Emanuel Margolis:

And Section 6 (k) of the statute leaves absolutely no doubt on this point as does Section 5 of the statute leave there a continuing references to deferred and exempt students.

There are no distinctions drawn between exemptions and deferments with these purposes under the statute.

The regulations, Section 1625.1 state unconditionally that no classification is permanent.

Now, to take the Oestereich situation and compare it with the Breen situation, we can see this in operation very clearly.

If Oestereich, a divinity student had finished his divinity school at the seminary and having completed his school then decided that he was going to enter a law school or he then decided that he was going to drive a bus or become a carpenter, can there be any question at all that he would not be outside the system simply because he had a IV-D originally?

And let’s reverse the situation.

Let’s take the case of the petitioner who was attending the Berklee School of Music and let’s assume that having concluded the Berklee School of Music or even while he was there, he transferred to a divinity school.

Would he be outside the system at that point simply because he had transferred to a divinity school?

It’s obvious under the statute as well as under the regulations that any change in the circumstances of a registrant can produce a change in his classification.

That’s what the classification, regulations are all about and that there is clearly no person who is within the system, no registrant who is within the system who simply because he has an exemption is outside the system.

That was never intended and it’s nowhere to be found.

Indeed, it may be said, now there has been said by several courts below that both exempt and deferred registrants are outside the pool of manpower and that’s true, they are outside the pool of manpower but that hardly places them outside the system.

This is further — I think buttressed by the fact that the exemption deferment, demarcation line which the Government tries so desperately to draw particularly after Oestereich is almost impossible to define when examining the various kinds of classifications which exist both under the statute and the regulation.

When one moves from such classification is IV-F which is an exemption and I-Y which is an exemption and then moves on I-D which is a deferment, there is no logical order of priority, there is no systematic attempt to say that we have a series of exemptions which are going to be treated in one fashion exclusively a series of deferments which are going to be treated in another fashion exclusively and at one is in a higher order of priority, one is in the lower order of priority.

Indeed, the regulations themselves show a mixture and that mixture of exemptions and deferments in terms of persons who are in the highest order of priority at I-A down to the lowest order of priority which is I-C.

Another, I think, prime example to illustrate this point would be in the case of federal judges who under the statute and under the regulations have deferments.

The federal judge is obviously appointed for life but he only has a deferment.

Now, is it going to be suggested by the Government that a federal judge is somehow rather inside the system but a divinity student at the end of a theological seminary is somehow rather outside the system, it makes no sense.

There is no rational distinction recognized by either the statute or by the regulations and I think that the three justices of this Court who filed their dissenting opinion in Oestereich has much as said so particularly as indicated in footnote nine of their opinion.

This was also practically conceded by counsel for Selective Service System in the brief for the Solicitor General filed in the Oestereich case calling the Court’s attention particularly to the footnote on page 68 where again, there was practically a concession that you couldn’t draw these fine distinctions.

Potter Stewart:

In your brief, I think you state that the Vice President of the United States has given an explicit —

Emanuel Margolis:


Potter Stewart:

Is that the deferment or —

Emanuel Margolis:

That’s a deferment (Voice Overlap).

Potter Stewart:

It is simply deferred.

Emanuel Margolis:

Yes, Mr. Justice Stewart that is a deferment.

That’s correct.

Potter Stewart:

That’s while he is Vice President?

Emanuel Margolis:

As long as he is Vice President, he only has a deferment.

That would be under classification IV-B.

Emanuel Margolis:

That’s only he has.

He has no exemption.

Potter Stewart:

And that is also true to the members of this Court?

Emanuel Margolis:

That’s true of members of this Court.

All the members of the court have our deferments.

The gentlemen are not exempted, at least not specifically under IV-B, that’s the classification.

Now, the distinction I think which needs to be drawn in obviously some line in this case as in so many other cases before this Court that needs to be drawn is not between exemptions on the one hand and deferments on the other but rather between those exemptions and deferments which are unequivocally and unconditionally granted by statute on the one side such as veterans, such as sole surviving sons, such as full time students, elected officials and the like where you have exemptions and deferments there and those exemptions and deferments which are granted by statute but which are subject to findings of fact, which are subject to exercise of judgment by local boards and weighing of evidence where again you got exemptions and deferments such as in the case of IV-F’s, in the case of conscientious objectors, in the case of dependency and hardship deferments.

As a matter of fact, we would submit that the Gabriel case itself is a prime example to illustrate this point where you are dealing with a conscientious objector which involves an exemption, if he is entitled to conscientious objective status that would be an exemption and yet you’ve got so clearly a case where there’s got to be discretion exercised by the board that has got to be weighing of the evidence.

Would you care to make — I didn’t get it.

Would you care to state your views to the scope of the discretion, (Inaudible)

Emanuel Margolis:

I think that the scope of his discretion would be limited only to the statutory criteria.

If the director finds and that by way of the local board that a student is not pursuing a full time course of instruction that might be a factual determination or if he finds that he is not pursuing that course of instruction satisfactorily which are the statutory criteria then I would certainly say, there would be a basis for a weighing, for a judgment, for discretionary act by the local board which may indeed be barred by 10 (b) (3) but certainly where there are criteria totally irrelevant to the statutory criteria such as in the case at bar where the only basis for doing what the board did and this is conceded as the turning over of a registration certificate to a clergymen by way of an expression of dissent that has nothing to do with the statute and at that point the Selective Service director cannot do anything about taking away a II-S classification, I would submit.

The only final point that I would like to make, so I can reserve a little time later on if the Court please is that the case is cited by the Government that three Court of Appeals cases cited by Government, give it small comfort in attempting to arrange for what is obviously a divorce of convenience as between the exemption on the one side and deferment on the other.

The Kolden case which it cites by dictum is in full accord with the position of the petitioner in this case.

There is clear and rather it’s a repeated dictum indicating that the 10 (b) (3) would not be a bar in Kolden where a II-S undergraduate student, full time undergraduate student was involved.

The Kraus case involving a III-A deferment is governed by statutory language authorizing not mandating but authorizing the President to grant a deferment subject to certain specific conditions in 6 (h) (2), again not applicable.

And as far as Anderson against Hershey is concerned, which they cite in their brief that is again the rationale that an exemption is outside the Selective Service System which we have already dealt with.

The cases that we have cited I think are terribly important particularly the Carey case which was decided in the Second Circuit.

It is important because it was a per curiam decision in which two of the three judges, and that case ironically and perhaps incongruously held that 10 (b) (3) would not be a bar to a review of a denial of a I-S classification and set forth that where there is no basis for withdrawing it and where there is a statutory grant, it cannot be taken away by the Selective Service System.

And if there is a legal relationship involved as there was in Carey and whether there was a statutory interpretation to be applied as there was in that case, this is not a matter for the local board nor is this a matter to await a criminal prosecution but that it is a matter which is entitled to early judicial review.

Is that subsequent to this decision?

Emanuel Margolis:

I’m sorry, Mr. Justice Harlan —

Was that, that per curiam subsequent to this decision?

Emanuel Margolis:

That was subsequent to the Oestereich decision, yes.

Oh, it is subsequent to the Breen decision.

Emanuel Margolis:

Yes, subsequent to the Breen decision.

That’s correct, Mr. Justice Harlan.

Different panel?

Emanuel Margolis:

A different panel but interestingly enough of the three judges on that panel, two of them are Judges Moore and Friendly were in the majority in Breen.

I think I’d like to reserve the remainder of my time.

Warren E. Burger:

Very well, Mr. Margolis.

Have you cited in your brief that case?

Emanuel Margolis:

I’m sorry, Your Honor.

It is cited in your brief?

Emanuel Margolis:

Yes, it is.

We did not have the citation at that time because it had not yet been published.

Well, what is it?

Emanuel Margolis:

I can give it to you, Your Honor.

You do that later then.

Emanuel Margolis:

I can do it later, Your Honor, I cannot locate it right now.

Warren E. Burger:

Mr. Ruckelshaus.

William D. Ruckelshaus:

Mr. Chief Justice and may it please the Court.

At the outset, I think in light of the statement of facts by the counsel for petitioner, it might be well to state in the Government’s opinion what this case is not about.

In our opinion, this case is not about the advisability of the war in Vietnam, it’s not about the advisability of the present Selective Service law.

Quite obviously, these are questions of policy or the legislative and executive branches of Government.

Thirdly, I think that this case is not about free speech or the challenge to free speech under the Hershey directive.

There was a specific finding by the court below in this case to which petitioner did not object and which is set out on page four of our appendix, it’s finding of fact number five, which states that the board’s actions were entirely by virtue of the draft regulations.

On page three in the statement of facts agreed to by the petitioner and the Government, in this case, there is a statement in the bottom of paragraph 14, that the attest memorandum of decisions containing the following findings of fact which are not in dispute in the following conclusions of law.

There is no dispute about that finding in this case.

In the same question and that arises in the Gutknecht case which will follow this one and there is also a specific finding in the Gutknecht case that there is no evidence that the acceleration was based on the expressions of oppositions of the war in Vietnam.

Now I think that the claims of the denial of First Amendment freedoms, in this case cannot be based on pure speculation or on what might have been done.

They must be based on the fact situation as we find it in this case which I think leads to a complete denial that there was any abridgment of First Amendment freedoms in this case.

Here, as the counsel for the petitioner stated in his opening argument, there was not an effort on the part of the local draft boards to implement the Hershey directive, in this case applying the delinquency regulations and accelerating Mr. Breen, accelerating his induction.

I think that it should be pointed out that while the Hershey directive was issued in October under the statement of facts in this case, it is clear that at the petitioner was declared delinquent on January 8.

And in our appendix, appendix B to the brief of the Government on page 41 is a joint statement of Attorney General Ramsey Clark and the director of the Selective Service in which it was stated that lawful protest activities whether directive to the draft or other national issues do not subject registrants to acceleration or any other special administrative action by the Selective Service System.

Now, this statement is fully supported by the present justice department and we would not be here if the department were the opinion that in this instance that Mr. Breen was denied his First Amendment rights or that the board below acted interrogation of those rights, that he was accelerated for his views.

If I —

Thurgood Marshall:

Is there anything direct to show why he was brought in?

William D. Ruckelshaus:

He was brought in the — Mr. Justice Marshall, because he violated one of the regulations, the delinquency regulations were applied to him and because he violated a regulation which provides that you must have your registration certificate —

Thurgood Marshall:

How did they know he didn’t have his certificate?

William D. Ruckelshaus:

Because it was reported to them apparently by the marshal or by the — and when he returned his registration certification into the clergyman on November 16, 1967.

Thurgood Marshall:

How did they find that out?

William D. Ruckelshaus:

I really can’t recall exactly how did they find that out?

Thurgood Marshall:

Well, isn’t it interesting that all of the people they picked him?

William D. Ruckelshaus:

Well, I think that anyone that violates a regulation of this nature where it comes to the attention of the local board would be accelerated.

Thurgood Marshall:

And you consider that the handing in of its registration certificate was not the form of expression.

William D. Ruckelshaus:

Well, I think it’s a form of mixed expression and conduct and under the cases in this Court where there is a mixture and where there is a valid governmental purpose to be had in the regulation which is violated.

In this case, the possession of his draft cards that he cannot violate a law or regulation and call it speech and thereby, exonerate himself from any sanctions other than law or regulation.

Thurgood Marshall:

Did you mean sanctions or punishment?

William D. Ruckelshaus:

Well, I will get to that, Mr. Justice Marshall, I’ll address myself that now, if you care to the question of punishment as far as it’s concerned in this case involves the — and it also involves the case as follows.

As to whether the delinquency regulations are punishment and the question that we directly face is whether — if they are a punishment and say, he should have been provided its Fifth and Sixth Amendment rights under that.

I think there is threshold question in this case of Section 10 (b) (3) but if the —

Potter Stewart:

That is the question of this case, is it Mr. Ruckelshaus?

William D. Ruckelshaus:

Yes, it think it is, Mr. Justice Stewart.

Potter Stewart:

And the sole question asked is the —

William D. Ruckelshaus:

I think it is the —

Potter Stewart:

We get to the other question or at least a part of it in the next case, is that right?

William D. Ruckelshaus:

I think that’s right, Mr. Justice Stewart.

Ah the — the threshold question is the one to which the petitioner’s attorney directed most of his attention.

I believe, Mr. Justice Marshall that the question of punishment will be covered in great detail in the next case and I think that if you take the straight question of punishment itself that probably there are elements of punishment in what happened here to the petitioner and there are arguments that can be made that it was not a punishment.

I think this tends to obscure the underlying issue and that is whether ultimately the petitioner in this case is able to be afforded his full Fifth and Sixth Amendment rights and it is our position both in this case in Oestereich that what has happened with 10 (b) (3) is that the raising of those rights is simply been delayed.

He has not been denied the right to raise all of this or have all the right to counsel and right to confrontation of witnesses.

This is done when he has refused to submit to induction and has a criminal trial or submits to induction and brings the habeas corpus to contest his induction.

So that the question of whether or not it’s a punishment, I think is only relevant in terms of whether he eventually receives his rights that he claims he should have.

That the threshold question, of course, is the question of 10 (b) (3), the District Court and the Court of Appeals thought that this case should be dismissed under Section 10 (b) (3).

It is our contention that, that decision by the Court of Appeals and the District Court below was proper.

The Section 10 (b) (3) clearly prohibits judicial review of classification and processing by local appeal board and that these — the questions of classification and processing can only be brought up as a defense to a criminal trial or by habeas corpus.

Now, I don’t believe that Oestereich is dispositive of this case.

I think there are some distinctions that can be drawn between the deferment and exemption which are irrelevant to Section 10 (b) (3) and these are contentions that the Section does apply here.

In the first place, I think that the purpose of Section 10 (b) (3) is twofold.

William D. Ruckelshaus:

Its first purpose is to avoid a litigious interruption with the Selective Service process and that I think the congressional purpose here was not to deny review but to postpone it.

And I think that the Selective Service process if it should go on smoothly, Section 10 (b) (3) and the purpose behind it must be at least applied at the situation as it exist in deferments and I think that the petitioner can raise all the defenses that he had to his treatment at the end of the process.

Now, there is historical validity to the finality provisions — or finality decision of an appeal board and that we have the decision cited in our brief, Falbo and Estep which have modified the decision in Falbo which said that all of these, the defenses of the board exceeding its jurisdiction by not having any basis in fact for its decision could be brought up at the criminal trial.

So that I believe that what has happened in Section 10 (b) (3) is not a denial of review but a postponement and that there is historical validity for that postponement.

I think we can — the second purpose of the Section 10 (b) (3) has is to avoid having the courts becoming super draft boards and certainly that if Section 10 (b) (3) were not to apply the deferments to anybody who is deferred, the courts would be flooded with cases involving interpretation of draft board decisions and not only as far as they might be considered blatantly lawless because they were completely outside of the manpower pool as the Judge Coffman suggested with the rationale that could be applied to Oestereich but also with all kinds of rationale that might have been applied to the draft board’s refusal or the draft board decision to accelerate.

And now, if it is the Government’s contention that this is a — that Section 10 (b) (3) is a proper exercise of congressional power and that Article III Section 1 of the Constitution that gives the Congress the power to define and limit jurisdiction of the inferior courts of this country and Article I Section 8 that gives the Congress the power to raise and support the Armed Forces and that’s precisely what Congress is attempting to do in Section 10 (b) (3).

There is a constitutional question raised by a petitioner as the constitutionality of Section 10 (b) (3).

It is our position at the outset that this question has been decided by this Court in Clark against Gabriel that it has been decided against the petitioner and the Court there specifically found that there was no constitutional objection to Section 10 (b) (3).

In Oestereich, the Court stated its construction 10 (b) (3), left it unimpaired in the normal operations of the Act.

Still I don’t believe that the question of constitutionality can be considered to be a serious one here.

The question of the distinction between with this case and Oestereich, the question of whether there is any distinction that can be made between exemptions and deferments and if there is no distinction that therefore Oestereich applies, I think is very much for this Court today.

I would state that the outset, that all circuit courts which have faced this question since Oestereich and have decided the question in the Government’s favor, the Second, Fourth, Sixth and Eight Circuits cited all, the cases cited on page 18 of our brief, have all decided that there is a distinction between a deferment and an exemption.

In the first place, that there is a statutory distinction between a deferment and an exemption.

In Section 6 (g) of the Selective Service Act, this Section involving the ministerial exemption.

That exemption is unconditional, it is in given subject to the power of the President to adapt rules and regulations and providing for that exemption but in a II-S deferment in Section 6 (h) (1), there is a statutory condition placed on it.

The deferment has provided” under such rules and regulations as the President may provide”.

Now, that conditional grant is not in Section 6 (g) involving the exemption, the Section 6 (h) (1) specifically recognizes the delinquency regulations in the last sentence of the same Section.

For the first time, the delinquency regulations are recognized as being in existence by the Congress and as Judge Friendly stated on Page 26 of his opinion that this was a clear evidence that in the court below, clear evidence that the Congress did not suppose that reclassification pursuant to the delinquency regulation would violate provisions of 6 (h) (1).

It said that Congress has not authorized that delinquency regulations, it seems to me is to ignore almost 30 years of their existence.

In the 30 years of the existence of the delinquency regulations which have essentially remained the same since 1948, the Congress has amended the Act four times.

Either amended the Act by changing it very greatly or by readapting basically the provisions that were already there and I just can’t believe that if a Congress has known of the existence of regulations of this matter, this kind has gone into their — into the whole Act involving the delinquency regulations of four times over the last 28 years that we can say in 1969, that Congress did not intend that the delinquency regulations be in effect if there was no statutory authorization for those regulations.

I just can’t believe that Congress is so blind.

I would suggest for this Court’s analysis that Judge Coffman’s analysis in Anderson against Hershey of the Sixth Circuit case which is cited on page 18 of our brief.

On page 19 of our brief, Judge Coffman, I think expresses very well the analysis which we recommended to this Court.

He said that in the case of an exemption, the Congress has made the decision that qualifying persons shall be beyond the pool of manpower available for military purposes.

In the case of deferment, the Congress has tried to set priorities to provide predictability and to guarantee equality of treatment but not immunity for those within the available pool of manpower.

An exempt person is predetermined to be outside of the system, a deferred person is within.

We deem this is a significant line of demarcation.

Now, I do not agree with statement made by counsel for petitioner that the deferred individual is outside the pool of manpower.

I think he is inside the pool of manpower.

William D. Ruckelshaus:

He is simply postponed when he shall have to either be in the pool that is immediately indictable under the order of call or if he should for some reason, no longer qualify to be in that classification and I think that in the place of the exemption, the case of Oestereich, since he was outside — outside the pool, the system simply didn’t operate on him.

There was no reason for him to comply with the regulation.

Thurgood Marshall:

But if Oestereich did left the divinity school, what would happen?

William D. Ruckelshaus:

If he would — The question of permanency does not I think put them inside or outside the pool of manpower.

I think the question is one of statutory construction and in Section 6 (g), it’s an unconditional grant of an exemption to —

Thurgood Marshall:

Well, then just one more question would help me.

The petitioner did emphasize that the change of the word to shall for the student.

He shall be put into us.

They put great emphasis on that, do you?

William D. Ruckelshaus:

I think that, Mr. Justice Marshall, they are referring to the question of whether there was any discretion given to the President to defer students and in the 1967 Act, there was no discretion given.

It was made mandatory.

The deferment was made mandatory but the deferment was not made unconditional and the conditions were subject to such rules and regulations as the President may provide.

And in Section 6 (g), there is no such condition that was given and I think this makes a significant distinction between a deferment and an exemption.

I would also submit that there is a logical nexus here between the whole gamut of the regulations and the deferred status of the petitioner.

Now, the registration, there are good reasons why all of these regulations exist.

The registration itself, the filling — th filing in — the filling of a classification questionnaire, the carrying of draft cards.

All of these things were found to be significant in United States against O’Brien when this Court found that the criminal statute against the burning of a draft card.

The statute itself stated a legitimate Government purpose and I think there is a logical nexus between anybody within the pool of manpower and all of these regulations and I think that it maybe admitted that single regulations may not be indispensable but if the courts are going to get into the business of trying to say which regulations are indispensable and which are not.

Now, then we are going to have again the Section 10 (b) (3) frustrated because all of these questions are going to come before the district courts below as to whether the draft boards properly saw a particular regulation as having a logical nexus with the status of the individual who was accelerated and I think that this piecemeal determination by the courts of what is and what is not indispensable or logically connected and would frustrate purposes of Section 10 (b) (3) and serve no better purpose.

In the Oestereich decision, great emphasis was placed on the action of a draft board being blatantly lawless and I think that the — what the Court meant there and what Mr. Justice Douglas meant in his decision was that there was no congressional authorization for the delinquency regulations to apply to a man once he was exempted.

And that since there was no congressional authorization, any effort to apply them to the individual who was exempt was blatantly lawless.

And again in Gabriel where the Court said that the action would have to flout in Mr. Justice Douglas’ concurring opinion where the action would have to flout the law and by that draft board shows the reluctance of the Court to broaden the rule announced in Oestereich so that 10 (b) (3) would apply at the cases of deferments.

I think there are strong policy reasons for eliminating Oestereich as we have stated in our brief.

And the policy reason underlying Section 10 (b) (3) itself against litigious interruptions of the Selective Service System.

In the exempt category are a very few people.

There are ministers, there are people under 19, there are veterans, reservist, sole surviving sons and as was mentioned in the Section involving the governmental official including Federal Judges and legislative officers but in the deferred status, there are much greater number of people.

In 6 (h) (1) and (2) involving not only students but also of those deferred for dependency or hardship or occupational problems.

All of these — if all these people were not subject to the jurisdictional bar of 10 (b) (3), it’ll bring you a pre-induction injunction.

Again, I believe the 10 (b) (3) itself, would be so emasculated.

The purpose of the statute would be so frustrated.

William D. Ruckelshaus:

So that we would virtually rule that out of a — out of any effectiveness, whatsoever and I think that this Court would be better to just declare it unconstitutional rather than to effectively frustrate the will of Congress by saying that the 10 (b) (3) would not apply not only to those who were exempt but also to those who were deferred.

I think that based on these arguments that Section — the purpose of Congress and then in enacting Section 10 (b) (3) is so clear to allow the process to continue, to allow the Selective Service process with a minimum of interference, to raise an army to go all the way up to the point where the man is about to be inducted, where he can raise all the objections that he has.

At that point, the process is essentially over.

And he can raise the objections to his induction at that point by submitting to criminal prosecution or by Breen into the army and submitting it on habeas corpus.

Now, this is a sound congressional purpose and that it should not be in any way further emasculated or diminished by extending its non-application to the case of those who are deferred.

Hugo L. Black:

Under your argument, would this man have in ane relief at all?

William D. Ruckelshaus:

Mr. Justice Black he would have completes relief.

He would have relief by refusing to submit for induction and subjecting himself as Mr. Gutknecht did in the case that follows to a criminal prosecution where he could raise the questions of the constitutionality of the delinquency regulations as he seeks to do here or he could submit to induction and raise the question, of all the questions that he is trying raise here in his habeas corpus case.

There is no fact question involved here.

The boards had nothing but to determine as far as the board was concerned, he clearly violated a regulation.

Having violated one, it was within there discretion to apply the delinquency regulations and he did so.

Hugo L. Black:

Would it be too late now for him to raise a question about habeas corpus?

William D. Ruckelshaus:

Well, it would not be too late, Mr. Justice Black.

I think you have to wait until he went until he went in and he submitted himself for induction.

This has not happened yet.

He is not even been given an induction notice as here.

It’s been stayed.

Warren E. Burger:

Thank you, Mr. Ruckelshaus.

You have five minutes so I think we’ll continue until we complete.

Emanuel Margolis:

Thank you, Mr. Chief Justice.

Just very briefly answerable to the points that were stated by Mr. Ruckelshaus, I am interested to learn that he concedes that there elements of punishment in what happened to the petitioner in this, so I think that as an important concession and I would hope that the court would take that in a consideration of dovetails with the argument that — part of the argument that we have made in our brief as well as the argument on the delinquency regulations which we have incorporated from the brief in Gutknecht case.

I would like to point out that as far as the Gutknecht case is concerned; it’s very different from this and one major respect.

Gutknecht was not reclassified punitively which was the case here and therefore, it’s a totally different factual situation but I don’t want to get in to that because the honorable members of this Court would be given all the facts in that case tomorrow.

As far as the statement by the Government that there has been no effort to implement the Hershey directive that there’s no evidence of that, this comes as a complete shock to petitioner in light of the fact that the agreed statement on appeal concedes that the plaintiff’s complaint in this — all the allegations to that complaint of course are admitted.

In terms of the posture of the case alleges that this action was taken pursuant to the terms of said directive, the Court of Appeals below had no difficulty at all with that issue and stated in the course of its opinion and I quote from it, the majority stated that these actions of the board were in line with the memorandum and letter dated respectively October 24 and October 26, 1967.

So I don’t know how that really can be placed in issue at this time.

Furthermore, as far as the pursuit of these kinds of processes and procedures of punitive reclassification pursuant to the Hershey directive, I recall a Court to an as yet unpublished, series of hearings before the Senate sub-committee on administrative practice and procedure of the committee on the judiciary which were held before or rather on November 3rd, 1969, they are not yet as published that I have received copies of the transcript and I would call the Court’s attention to the testimony before that committee of former Attorney General Ramsey Clark who concedes that in fact this kind of process and procedure pursuant to the Hershey memorandum and letter did in fact take place.

The policy argument of litigious interruption, I think, is one that really needs to be met and I had intended to meet it except we’re running out of time but I think this maybe the time.

This is something which of course is a policy argument that the Government has made throughout not just in this case but in prior cases and I think it was amply answered not only by Mr. Justice Harlan in his concurring opinion in Oestereich with a specific reference to it.

But it’s also have been answered particularly well by Judge Bazelon in the case of National Students Association versus Hershey in footnote 17 where he points out that in order to really preclude a litigious interruption, Congress would in fact have to bar a post induction review as well as pre-induction review by way of defense to a criminal prosecution since an invalidation made in a post induction suit would have precisely the same effect as if it were made prior to induction.

Warren E. Burger:

Well, it wouldn’t interrupt this service though, would it?

Emanuel Margolis:

Your Honor?

Warren E. Burger:

It wouldn’t interrupt his military service.

Emanuel Margolis:

No, but I think when the reference is made to litigious interruption, then the policy is not with reference to interruption of service, it’s with reference to the interruption of calling men to service and it has to do with the calling men into the Armed Forces.

Now, in many of these situations, I would submit in most of these situations where arguments geared to the law, geared to the procedures, geared to the statute only are involved and no factual determinations are involved would not make more sense as a matter of policy to allow these matters to be heard preliminarily by a Federal Court whether on a claim for injunction or a declaratory judgment or both, let the matter be heard on the basis of oral arguments and briefs at that time and at that point, the registrant will know what his legal rights are, the respondents will know what the legal duties are of the draft board and certainly there will be no risk to be run by the registrant later on, and risking an indictment, and a prosecution and if he’s wrong, of course he is facing not only the (Inaudible) of that but possibly five years in jail and a $10,000 fine.

This litigious interruption argument I think bears no real weight when examined carefully as was suggested by Mr. Justice Harlan, as was suggested in the opinion by Judge Bazelon.

And I trust that the Court would give this the weight that it deserves which is very little.

Thank you very much.