McGee v. United States

RESPONDENT: United States
LOCATION: Edward Coolidge's Home

DECIDED BY: Burger Court (1970-1971)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 402 US 479 (1971)
ARGUED: Feb 23, 1971
DECIDED: May 17, 1971

Facts of the case


Media for McGee v. United States

Audio Transcription for Oral Argument - February 23, 1971 in McGee v. United States

Warren E. Burger:

We'll hear arguments next in Number 544, Commissioner of Internal Revenue against Lincoln Savings and Loan.

Excuse me, I'm one case off.

We'll hear arguments in Number 362, McGee against the United States.

Mr. Levine.

Alan H. Levine:

Mr. Chief Justice and may it please the Court.

This case is before you on writ of certiorari to the Second Circuit.

The petitioner seeks to review of convictions on four counts under the Military Selective Service Act of 1967.

The chief question presented by this petition is the question left open in McKart versus United States.

It presents the pure question of whether where a registrant presents a claim for conscious objection and that claim is denied without a basis in fact as the Second Circuit concedes here it was so denied, and where therefore, the classification -- I-A classification and the induction order were illegal, is he barred from challenging that classification and induction order in judicial review.

In answering that question, no, we will assert two basic propositions.

One that the exhaustion of administrative remedies doctrine is inappropriately applied, whereas McKart suggested, its effect is not merely to delay judicial review, but is to deny it completely and we will defend, secondly, the proposition that if the exhaustion of administrative remedies is to be applied so harshly.

It must be applied with congressional mandate in that the Military Selective Service Act of 1967 to the contrary, does not limit judicial review in defense to a criminal prosecution, but in fact guarantees judicial review in defense to a criminal prosecution.

Petitioner, at the time of induction was a full time student at Union Theological Seminary.

He had registered for the draft in August of 1961 in New York City.

He had advised his local board at that time that he was preparing for the ministry.

In August of 1964, he enrolled in the University of Rochester the next month was a given a II-S deferment for all practical purposes kept that deferment until September of 1967.

In February 1966 while still at the University of Rochester and still possessing at II-S classification, he applied for conscientious objector status.

Pursuant to regulations, the local board deferred consideration of that application until he was no longer entitled to a lower classification.

In March of 1966, he got a letter from the local board to that effect that they would defer consideration of CO application.

In April of 1967, still at Rochester, still possessing a II-S, the petitioner wrote the President of the United States.

He enclosed in that letter remnants of a torn and burnt draft card.

Warren E. Burger:

Was he convicted of some criminal act in connection with that draft card?

Alan H. Levine:

It was not nor was he indicted in indictments under review here.

Subsequent to the trial in this case, he was indicted on two counts of destroying a draft card.

Those cases have not come to trial, Your Honor.

Warren E. Burger:

And that question isn't before us at all?

Alan H. Levine:

It is not Your Honor.

He wrote to President in April 1967.

He advised the President that he would probably be entitled to a theological deferment.

Nevertheless, he said, “I must sever every link with violence and war.”