SELECTIVE SERVICE SYSTEM v. MINN. PUB. INT.
Part of the Department of Defense Authorization Act of 1983 denied federal financial aid to males between the ages of 18 and 26 who had failed to register for selective service. Applicants for financial aid were required to inform their universities that they had (or had not) registered for the draft.
Did compelling individuals to state whether or not they had registered violate the Fifth Amendment?
Legal provision: Self-Incrimination
The Court upheld the law. Since no student is compelled to seek financial aid, requiring an applicant to state whether or not he had registered for the draft would not be equivalent to forcing an individual to incriminate himself.
ORAL ARGUMENT OF REX E. LEE, ESQ., ON BEHALF OF THE APPELLANTS
Chief Justice Warren E. Burger: We will hear arguments first this morning in Selective Service System against Minnesota Public Interest Research.
Mr. Solicitor General.
Rex E. Lee: Mr. Chief Justice, and may it please the Court, on July 2nd, 1980, President Carter, pursuant to statutory authority, reactivated a draft registration requirement for men between the ages of 18 and 26.
After about two years, almost 7 percent of those eligible still had not complied with the registration requirement, in some cases deliberately, and in some through inadvertence.
In 1982, sponsors in both Houses of Congress introduced as a floor amendment to the 1983 Defense Authorization Act Section 1113, which would condition eligibility for Title 4 college student aid on compliance with the applicant's draft registration obligation.
Much of the language of the amendment, which is sometimes called the Solomon Amendment, was supplied by Secretary Bell, who worked closely with the sponsors in both Houses.
After vigorous debate, it passed both Houses by overwhelming bipartisan majorities.
This case is an appeal from a District Court holding that that 1982 Solomon Amendment violated two constitutional guarantees, the prohibition against bills of attainder contained in Article 1, Section 8, Section 9, and the privilege against compelled self-incrimination.
There are two separate and independently sufficient reasons why the District Court's bill of attainder holding must be reversed.
The first is... this is spelled out more completely in our reply brief... that each of the appellants' contentions rests squarely on their premise that the law does not permit aid to late registrants.
That is, those who register more than 30 days after their 18th birthday.
And the second reason is that even if the Appellees were correct on the late registration issue, this statute still is not a bill of attainder.
I will deal first with the late registration issue.
It is beyond dispute that the Secretary of Education's regulations do provide that those who register late are eligible for aid regardless of when they register.
There is accordingly no question that if the individual appellees in this case comply with their obligation to register, the government will give them the aid that they say they must have.
That is what the regulations provide, and that has been the consistent practice.
In providing that those who register late are eligible, the regulatory scheme in this as is in other respects is faithful to the statutory purpose.
Congress's objective in passing this statute was not to catch wrongdoers and punish them.
It was rather to increase the number of people who are on the draft registration roles by providing both a reminder, because in many cases the reason for non-registration was simple inadvertence, and also an economic incentive.
We turn then to the language of the statute, and there is nothing in that language that prohibits this result which the regulations provide.
The statute requires registration in accordance with any proclamation, rule, or regulation, and the President's proclamation does require registration within 30 days of the registrant's 18th birthday.
The apparent reason for the statutory reference in the Solomon Amendment to rules, regulations, and proclamations is that Section 3 of the Civil Service Act which requires registration is not self-executing and does not come into play until there is some proclamation, rule, or regulation.
But in any event it is far from clear that in accordance with means within the time fixed by.
And another part of the statute, Subsection F(4), which is really the fourth subdivision of the Solomon Amendment, supports the view that in accordance with means in the manner required by rather than within the time fixed by.
In any event, either explanation is plausible.
Certainly neither is implausible, and under those circumstances it is appropriate to consult the statutory purpose, the statutory history in determining the validity of these regulations.
Unidentified Justice: May I ask, Mr. Solicitor General, what is the dimensions of this problem?
How many have not registered who are eligible to?
Rex E. Lee: To date?
Unidentified Justice: Yes.
Rex E. Lee: To date.
As of the date of the Solomon Amendment, the legislative history sometimes says 500,000, sometimes says seven, and sometimes says eight.
As of last week, it was approximately half that, about 350,000.
There is little doubt--
Unidentified Justice: What is the total number who have registered?
Rex E. Lee: --I will give you some figures and you can extrapolate and I can extrapolate.
I think I can tell you approximately what the number is.
That number of somewhere between 350 and 380 represents about 3.1 percent of those who should register, whereas the earlier figure was about 7 percent.
There is little doubt that the Members of the House and the Senate who enacted this law thought of the statute as designed to create an incentive to register, and that as a consequence late registrants would be eligible.
The ample supports for this rather pervasive view among the Members of the House and the Senate are contained in the brief, and there are many on both sides.
Senator Stennis, for example, referred to some youngster who might have overlooked signing up.
Nevertheless, in the Senator's language, all this youngster will have to do is just to comply with the law, and that will automatically make him eligible.
There are many similar statements cited in our briefs.
Finally, there is the matter of the regulations themselves.
This is the strongest possible case for deference to the administrative regulations.
These regulations were not only adopted right after the passage of the statute, through the joint efforts of the two agencies charged with its implementation.
This is also literally a case where the draftsmen of the statute, or one of the draftsmen of the statute was also the draftsman of the regulations, and that person is, of course, Secretary Bell.
In short, every single guide to statutory construction points in the same direction, and if this statute is interpreted consistent with its purpose, its history, and it implementing regulations, then constitutional issues disappear, because neither this nor any other court has ever invalidated as a bill of attainder any statute whose applicability or non-applicability depended upon what the individual would or would not do in the future.
It is at least anomalous, maybe revealing is the better word, that the appellees' argument with respect to the meaning of this statute on the late registration issue would if successful make it more difficult for them to get financial aid.
They are arguing for an interpretation of the law which actually makes it harder for them to get what they assure us that they must absolutely have.
This shows that their real disagreement is with the Congressional policy decisions that there should be a draft registration and that people should be encouraged to register, policy decisions which clearly fall within Congress's constitutional authority.
I turn now to our second point.
Unidentified Justice: Why, Mr. Solicitor General, did Congress... is there any indication in the history why did they want the registration without the actual authority to draft?
Rex E. Lee: That decision, of course, was made at an earlier point in time, and I guess it was made in 1980, and actually was reflected in President Carter's proclamation, but I would assume that it is simply a readiness statute.
The policymakers of our nation concluded that we are not yet at the stage that we need to move to the draft itself, but just to a readiness position in the event that the draft is necessary.
Even if this statute could be construed to prohibit aid to late registrants, it is still not a bill of attainder.
This Court clarified in Nixon versus the Administrator that to qualify as a bill of attainder a statute must meet each of three tests.
Namely, it must apply only to a specific individual or group.
Second, it must inflict punishment.
And third, it must deny judicial process.
This statute does not one of those three things.
First, the Solomon Amendment simply is not punitive within the bill of attainder sense of that word.
At common law, bills of attainder were legislative death sentences, usually for treason, but it is clear that Article 1, Section 9, also includes common law bills of pains and penalties, which included such penalties as imprisonment, banishment, and confiscation of property, and as the Court pointed out in Nixon versus Administrator, our own American experience has added one other category, and that is disqualification from certain kinds of employment because of a legislative determination of past wrongdoing by particular individuals or groups.
But punishment for bill of attainder purposes clearly does not extend to any circumstance of non-realization of an economic benefit which any individual would like to have, and the square holding of Fleming versus Nestor is that the mere denial, in Fleming's words, the mere denial of a non-contractual governmental benefit does not amount to punishment for bill of attainder purposes, and that is all we have here, the mere denial of a non-contractual governmental benefit.
If it was not punishment to deprive Mr. Nestor of his Social Security benefits after he had paid into the fund for 19 years, then a fortiori it is not punishment to condition student aid to registration with the draft.
Unidentified Justice: Do we know, Mr. Solicitor General, how many of that 350 to 380,000 who have not registered are receiving financial aid?
Rex E. Lee: We do not.
Unidentified Justice: Or are asking for it?
Rex E. Lee: We do not.
There is no way, I guess, that the government would have access to that kind of information.
I turn now to the other two elements of bill of attainder.
With regard to specificity, this law applies to non-registrants.
It is the complete antithesis, the complete opposite end of the spectrum from the specific identification that we experienced at common law or any other instance in which any statute has ever been held unconstitutional as a bill of attainder.
It is an open-ended group whose fluctuating membership will be determined by events which are yet to occur in the future, and that argument does not depend on our position with regard to late registration, because even if we are wrong on late registration, the class affected is nonetheless one that changes every day and whose composition is constantly subject to future contingencies as more young men turn 18 and either register or neglect or decline to register.
And as I stated a moment ago, never in the history of our Republic has any statute ever been held unconstitutional as a bill of attainder where its membership depended upon events which might yet occur in the future.
With regard to denial of judicial process, the only relevant issue or determination through the judicial type process, whether the individual does or does not fall within the legislative target area, is whether the individual has registered.
It is therefore completely unlike the circumstance in United States versus Brown, in which the issue was whether communism was an adequate proxy for... to engage in political strikes.
And since this statute and these regulations do provide for the individual who wants to show that in fact he has registered, this characteristic, this factor also has been satisfied.
I turn finally to the appellees' privilege against self-incrimination argument.
There are three short reasons why this is not a violation of the Fifth Amendment.
The first is that there is no compulsion.
There is no compulsion in prescribing standards of eligibility for student aid.
Indeed, non-registrants are not only not compelled to apply for student aid.
It would be useless for them to do so because they are ineligible, and it is not a crime not to apply for student aid.
Moreover, the privilege against self-incrimination does not assure that there will be no adverse economic consequences from remaining silent.
The Garrity, Spevack, Gardner, Lefkowitz line of cases on which the appellees rely stand for the proposition that government may not compel self-incrimination, may not compel self-incriminating testimony without a grant of immunity.
They do not stand for the proposition, as this Court made very clear in the Gardner case, that nothing that the person says or doesn't say can ever be used to his economic advantage, or disadvantage.
Surely, for example, the Drug Enforcement Administration is entitled to ask a job applicant whether he uses drugs.
Surely in employing lawyers from my office we are entitled to ask whether the applicant has ever stolen money from a client.
Surely the Department of Agriculture is entitled to ask an applicant for federal crop insurance whether he is growing marijuana on his farm.
And in the administration of Title 4 itself, surely the Department of Education can ask whether the applicant is legally in this country, because that is one of the qualifications for student aid.
Third, there is an element of unreality about the appellees' Fifth Amendment argument.
The purpose of this statute after all is to get people registered.
A major objective, a major theme in the legislative history is that those people who had not registered on time should register late, and that was a major purpose of this statute, to get those who had not registered on time to register late.
It would be a perversion of that purpose to prosecute late registrants, to prosecute for doing the very thing that the statute was passed to encourage, and it has never been done.
This Court said in Marketti that the central standard for the privileges application has been whether the claimant is confronted by substantial and real as opposed to mere trifling or imaginary hazards of incrimination.
I cannot imagine any hazards of incrimination that more appropriately fit that definition, trifling and imaginary.
One person of the presumably tens of thousands, probably even hundreds of thousands, who have registered late thus far has been prosecuted, and that is firmly opposed to government policy.
One final note, and on this I will close.
It probably is not... it may not be independently dispositive, but at the very least there is an additional consideration which should influence the standard of review for this Congressional exercise of the spending power, regardless of whether it applies to bill of attainder or the Fifth Amendment.
Last term, in Regan versus Taxation With Representation, this Court held that Congress is entitled to great deference in making its judgments concerning how the nation's revenues are to be gathered and the tax burden distributed among different persons and groups.
I know of no basis for distinguishing in this respect between Congress's power to tax as in Regan versus Taxation With Representation and its power to spend as in this case.
The language of the Constitution locks them together, and this Court's decisions consistently treat them as subject to identical constitutional standards.
Mr. Chief Justice, I will save the rest of my time.
Unidentified Justice: General Lee?
Rex E. Lee: Yes.
Unidentified Justice: I notice that the individual plaintiffs in the District Court were all anonymous.
Did the government make any objection to that?
Rex E. Lee: No, not as far as I know.
Chief Justice Warren E. Burger: Mr. Keppel.
ORAL ARGUMENT OF WILLIAM J. KEPPEL, ESQ., ON BEHALF OF THE APPELLEES
William J. Keppel: Mr. Chief Justice, and may it please the Court, the question before you today is whether the Constitution will countenance now and for the future the use of leverage of a statutory benefits program to enforce an unrelated penal statute.
Approval of the scheme under challenge here will sanction the use of a test oath as a law enforcement device contrary to the basic principles of our criminal justice system.
Section 1113 substitutes a presumption of guilt for that of innocence.
It reverses the historical burden of proof.
It imposes a punishment without judicial trial.
Unidentified Justice: Would you view in the same way a statute that provided that no loan applicant would be... receive aid if he owed any delinquent taxes to the federal government?
William J. Keppel: The repayment of a loan, Mr. Chief Justice, is at least related to the payment of other obligations.
The statute that is under scrutiny here has no relationship whatsoever to the Higher Education Act benefits programs which are far-reaching indeed, and for that reason that hypothetical is different from the case before you.
Unidentified Justice: What about... Let me try this hypothetical.
Suppose there were a provision in the Medicaid or Medicare Act... I get the two of them confused... either one of them, that if a physician was seeking to participate, that is, to charge fees, that he would have to certify under oath that he had repaid any student loan that he may have had to get his medical education.
Would you think that would be the same pretty much as the case before us today?
William J. Keppel: The repayment of the loan, Mr. Chief Justice, is not in itself a crime.
Non-registration, on the other hand, is a crime punishable by imprisonment by up to five years and a fine of $10,000 or both, and so the difference between many of those kinds of conditions if they are bona fide and rationally related to the goal of the Congress is a different thing.
In addition, if the underlying act is a criminal act in itself, that carries us one further away from the case here.
The consequences of your decision then will extend far beyond this case.
If Section 1113 survives scrutiny, it will be followed.
Indeed, it has already been followed by a rash of similar laws by which government on all levels, federal, state, and local, will demand citizens to swear or certify under pain of perjury in return for some form of government benefit that they have not broken one law or another.
These laws not only undercut the judicial system, but they serve as an affront to the dignity and the integrity of our citizens.
Fortunately the Constitution, through its bill of attainder clause, through the proscription on self-incrimination, and through its guarantee of equal protection, does not tolerate laws such as 1113.
Section 1113 violates the prohibition against bills of attainder.
It targets a clearly identifiable group.
It imposes punishment, and it does so without the protections of a judicial trial.
Section 1113 accomplishes this, as I mentioned, through the device of a test oath by which the applicant for aid must certify under pain of perjury that he has complied, he has submitted to registration under Section 3 of the Selective Service Act.
And in addition, as is true of the classic test oath cases, the conduct here is perceived by some to be disloyal or at least politically unpopular.
In spite of the government's protestations, there can be no doubt that all three of the elements or requirements to proscribe the statute as a bill of attainder are met here.
This statute clearly focuses on non-registrant students who need financial aid.
In Footnote 29 of the Brown case, the Court said that as long as you can ascertain a group that is the focus of a statute... in that case they cited, for example, a statute with regard to operating machinery.
If you can describe symptoms, or if you can describe a disease, or some other guideline by which the group could be ascertained, that is sufficient.
Here, the statute itself identifies a group, and there is no question but that who is within its proscription.
Unidentified Justice: Mr. Keppel, is there anything in the record that tells what percentage of all applicants to colleges in Minnesota, if that is the relevant... are eligible for financial aid?
I mean, is it a small percent or a large percent?
William J. Keppel: The affidavit of Robert Kusenko and the brief of the amicus group of colleges headed by the University of Minnesota indicates that about 80 percent of all financial aid money is federally funded and comes within this statute.
In addition, anywhere, depending on the program, from two-thirds to three-quarters of the students fall within families who have total family income of $18,000 or less, which is considerably less than the average family income for the country.
And so, while we can't define exactly the numbers who would fall within it, we can see that it is a high percentage of students and the funds available to students generally are overwhelmingly the federally financed funds under Title 4.
Unidentified Justice: Do those statistics show... perhaps you have answered it and I just didn't get it... what percentage of the applicants for... the ratio perhaps the people who would be eligible for these federal funds bear to the total number of applicants for admission or the total number of people admitted?
William J. Keppel: That is not in the record, Your Honor.
Unidentified Justice: Mr. Keppel, isn't a class an open... certainly as applied to people who are becoming 18?
Now they are aware of the provisions of the draft registration law and aware of the financial aid requirements, and as to them it is just a requirement for future conduct, isn't it?
William J. Keppel: Justice O'Connor, this Court has indicated that inescapability, and that is the rubric that the government uses in describing what you are talking about, inescapability is not required.
Footnote 32 in the Brown case makes it clear that this is not a prerequisite to finding an ascertainable or identifiable group.
It is merely one factor that might be considered.
But in this case the government agrees that the act of non-registration is complete upon the expiration of a 30-day period after attaining one's 18th birthday.
Now, whether they forebear from prosecuting or not is not the point, but the past and ineradicable act exists upon the expiration of that time period, and so any of these people could be prosecuted at any time if the government changed its policy.
And during the late sixties and the early seventies, the government did in fact prosecute late registrants, so I think we can see that this is an identifiable group.
The crime, if you will, is complete.
The past act is complete.
The inescapability is not a prerequisite, and so the group is clearly identifiable.
Unidentified Justice: Mr. Keppel, would it not be a permissible construction of the statute to avoid the constitutional question to treat it the way the Solicitor General suggested, that... in accordance with means and the manner required by rather than within the time required?
Wouldn't that eliminate this problem?
William J. Keppel: In the manner required is not a literal interpretation.
Unidentified Justice: Wouldn't that be in the best interests of your clients to so construe the statute?
William J. Keppel: My clients, Your Honor, do not fall within the group of people who are unaware of their obligation to register, and so with the threat of criminal prosecution hanging over them because the government has been careful not to grant immunity to late registrants, with the threat of criminal prosecution hanging over them, it would not be in their best interest.
Unidentified Justice: In other words, you are saying they wouldn't register anyway?
I wonder if they have standing to make the particular argument you are making then.
William J. Keppel: There is no question but that they are adversely affected.
There is no hearing available to them.
There is no redress available to them but to attack the statute itself, and whether they have standing to attack late registration or not, it seems that they would.
In fact, one of the appellees contacted me about a month ago and said he couldn't continue.
The economic pressures were too great.
He had to register.
And so these people, if the government can leverage them enough, can coerce them enough, can be compelled not only to violate their Fifth Amendment rights, but to violate their conscience and register.
For that reason, they would have standing.
Unidentified Justice: What would you say about a person who had been convicted of some criminal act and in prison and then a fugitive, escaped from the prison, that had a pension due him either from the government or from some private source.
Make it the government.
He would certainly have some disincentive to apply for his pension, would he not, because that would identify him?
Would you say there is some violation there of his rights?
William J. Keppel: There--
Unidentified Justice: He has to show up in order to get the benefit.
But if he shows up he is going to be apprehended as a fugitive and put back in prison.
William J. Keppel: --The statute in that case, Mr. Chief Justice, is evenhanded.
It applies to all.
It does not have a law enforcement purpose, which Section 1113 does.
You can call it an economic incentive, but you can also use other euphemisms.
I think I would more accurately describe it as a penalty for non-compliance, and I think that is one distinguishing feature, that the statute which you describe or the contractual obligation, if it is one, is at least evenhanded.
This one is directed to non-registrants to coerce their registration, and for that reason the situations would be different.
Unidentified Justice: You referred to the Act as it was in the sixties, I think you said the seventies also.
Was that a registration in connection with a draft potential, or was it just a pure registration as it is now?
In other words, was the draft in effect in the sixties?
William J. Keppel: Yes, the draft was in effect at the time, Your Honor.
Unidentified Justice: That makes it somewhat different, doesn't it?
There would be a reason for prosecuting non-registrants who were not only evading the registration requirement but also evading the draft itself.
William J. Keppel: That is correct, Your Honor, but by the same token, that provides the argument that there is nothing sacred about their present forebearance.
Once this case is decided, the government could go ahead and start prosecuting late registrants, or if the international conditions changed as you describe, the government could decide to prosecute.
And these people who did so would be susceptible to prosecution.
On the other hand, if they were outspoken critics of government policy, even though they late register, the government would always have that club hanging over their head by which it could prosecute outspoken critics, and I think as long as they are unwilling to grant immunity, which they could do if they were serious, as long as they are unwilling to grant immunity, the potential for criminal prosecution is clear.
Now, the second requirement of a bill of attainder is that it inflict punishment.
Unidentified Justice: One question.
What about... you say forever this is there?
No statute of limitations involved?
William J. Keppel: There is a statute of limitations in prosecutions for non-registration, Justice Marshall, and that has been extended, as the government notes in its reply brief to five years after one attains his 26th birthday.
Unidentified Justice: So, I mean, you keep saying forever.
You don't really mean that.
You mean five years.
William J. Keppel: The effect on these young men could be viewed as longlasting, and certainly beyond the statutory period, because their college degrees are being terminated with the termination of their aid.
Unidentified Justice: I am only talking about prosecution, criminal prosecution.
William J. Keppel: And that criminal prosecution--
Unidentified Justice: Five years.
William J. Keppel: --potential ceases five years after attaining the 26th birthday.
Unidentified Justice: Mr. Keppel, would you have difficulty if the government just gave an outright financial grant of, say, $50 a person to get people to register for the draft?
I mean, that is some kind of leverage, I suppose.
William J. Keppel: That would be leverage far less drastic than is the leverage here.
These people are cut off from financial aid which the District Court found clearly was required for them to proceed with their college education.
Unidentified Justice: Well, if the grant program operated the same way, and they are cut off from the outright grant if they don't register, how is that different?
William J. Keppel: In this case, they are required to certify themselves.
They are required to confess to late registration, if you will, in the certification.
Unidentified Justice: Well, that is your self-incrimination argument.
What about the bill of attainder argument?
Is that offended by a grant?
William J. Keppel: This Court has noted that punishment has to be determined in the context of the particular case.
In this case, we see a drastic penalty or sanction inflicted on these non-registrants.
The situation which you describe, while a matter of degree, is--
Unidentified Justice: It is just less money, I suppose.
William J. Keppel: --It is less money, but it also has a far less drastic impact on the young men, because they may not be penalized by $50, but when you are cutting them off completely, we are talking about quite a different matter.
We have to remember that we are not only talking about college students and university students.
The Higher Education Act covers technical schools, vocational schools.
It covers direct student loans, even the guaranteed programs... grants, state incentive loans.
It even covers the work-study programs by which--
Unidentified Justice: Mr. Keppel, take Justice O'Connor's example a point further.
Supposing Congress were to say that we are sufficiently concerned with failure to register for the draft that we are going to channel all aid to higher education, which formerly went into the Higher Education Act in the form of scholarship grants to people who register for the draft after they get out of the Army, if they ever do.
And so the only aid, federal aid to higher education is available to you only if you register for the draft under that Act.
Now, would that pose... would you feel that would come under your argument, or that it would be different?
William J. Keppel: --If it targets an identifiable group and if it inflicts punishment--
Unidentified Justice: Well, I ask you to answer a question yes or no.
William J. Keppel: --I would consider that very close to what we are talking about here, absent the self-incrimination problem that we have also in Section 1113.
Unidentified Justice: So you feel that, too, would be a bill of attainder?
William J. Keppel: It would in my judgment, Justice Rehnquist.
This Court has held that punishment need not be directly inflicted.
What cannot be accomplished directly cannot be accomplished indirectly, and deprivation under any form, however disguised, is prohibited by the bill of attainder law.
And so, consequently, in the Cummings case over 100 years ago the Court held that deprivation of any civil right or political right may be punishment, and they looked at disqualification from positions of trust, from pursuit of certain vocations, from being a guardian or an executor was a sufficient punishment, even disqualification from federal employment.
We are not cutting in the Lovett case off these individuals from any kind of employment.
All we are saying is, you can't work in the federal government, and that was sufficient.
From practicing law in the federal courts in the Ex Parte Garland case, not forbidding you from practicing law in state courts, or writing wills, or closing real estate transactions, but merely practicing in the federal courts.
And all of these were viewed to be sufficient penalties.
In this case, we are cutting these young men off from proceeding with their college degrees, which the District Court held could only be done with federal aid, and by not attaining the college education in this increasingly complex society, we are cutting these young men off from any number, not only of learned educations but any number of skilled pursuits or vocations under the technical and vocational school reach of this statute.
And that inflicts punishment in a real sense perhaps far more extensive than in the previous cases of this Court.
Unidentified Justice: It is a punishment that can easily be avoided, can it not?
William J. Keppel: The punishment--
Unidentified Justice: The punishment as you describe it.
William J. Keppel: --It can be avoided, Chief Justice, by registering, but this Court has also held that, in cases like Spevack, that the ability to obtain other kinds of work or the like cannot be imposed, and furthermore, in Grasso and Marketti, the Court said it is not whether these young men have a right to register or not to register, but once having chosen not to, whether they can be compelled to incriminate themselves, and contrary to what the government suggests, this is not a separate or this is not a combined argument.
The bill of attainder stands separate and independent of the Fifth Amendment, and as the government keeps urging and urging that late registration qualifies you for aid, we get further and further into Fifth Amendment problems, because by late registering, they are confessing to having late registered, and are providing a link in the chain of evidence which may be used to convict, and that is what this Court has held to be sufficient to violate the Fifth Amendment.
Unidentified Justice: Mr. Keppel, do you disagree with the basic figures as I understand the other side to give us that there have been 300,000 or 400,000 people who have been late registrants, and none of them have been prosecuted?
William J. Keppel: I have no reason to quarrel with that, Justice Stevens.
Unidentified Justice: So the probability of prosecuting, getting prosecuted for a late registration is really quite low.
William J. Keppel: The probability today is quite low, but as I mentioned, late registrants have been prosecuted in the past.
The government in its reply brief suggests that it may be changing its policy with regard to late registrants who are registering after they get warning letters from the Selective Service System and as they can change that, they can get back to the policy that they were practicing back in the late sixties and early seventies.
Unidentified Justice: Has anyone ever been prosecuted when there was just a registration requirement without a draft system?
William J. Keppel: Please, I missed the question.
Unidentified Justice: Has anyone ever been prosecuted for failing to register except when there was a draft system extant?
William J. Keppel: I am aware of no such situation.
Unidentified Justice: There have been prosecutions for failure to register, haven't there, in different jurisdictions?
William J. Keppel: There have been a number of them in the last few years.
Not a large number, but they have prosecuted non-registrants.
Unidentified Justice: Mr. Keppel, are you about to address your privilege argument?
William J. Keppel: Yes.
Unidentified Justice: May I ask this?
Do I correctly understand the statute that he doesn't get aid if he refuses to certify that he has complied with the registration requirement.
That is true, isn't it?
William J. Keppel: That is true.
Unidentified Justice: Well, isn't it also true that if he were to say, I waive my privilege against self-incrimination, I admit that I have not registered, would he not also be denied any aid?
William J. Keppel: The waiver of the privilege would not get him federal aid.
Unidentified Justice: Then my question is, where is the coercion in this scheme, the compulsion to force students to waive?
William J. Keppel: The compulsion is in their need for financial aid.
Unidentified Justice: If it doesn't make any difference whether they admit or refuse to say whether they have registered, in both cases, they would be denied aid, how does the scheme work with compulsion?
William J. Keppel: --The scheme of Section 1113 is part of the reason why it violates the Fifth Amendment.
The student is faced with the cruel trilemma of either foregoing financial aid, of committing perjury in falsely certifying compliance, or in waiving his Fifth Amendment rights, and in those--
Unidentified Justice: But as I understand it, if he waives by admitting that he has not complied, he is not going to get any aid anyway.
William J. Keppel: --But for this section, which has been found to be unconstitutional, he would get aid.
These young men, all six of them, received federal financial aid.
They qualified for federal financial aid before Section 1113 was enacted, and but for that section, they would be receiving it today.
This Court has held time and time again that you cannot enforce an unconstitutional condition as a requisite for receipt of aid, whether it be a federal job or some other benefit.
Unidentified Justice: If this statute said, if you will waive, you will get... and admit that you have not complied, you will get the aid, I can see the compulsion then of the provision, but if he is not to get it, at least as to this scheme, it is difficult to see where the government compulsion is for purposes of the privilege.
William J. Keppel: The compulsion is that they need the aid.
They have to have the aid to continue, and that is important enough a price to pay, as this Court has noted in the Spevack versus Klein case, too costly a price to give up your Fifth Amendment rights, and so it is that leverage or coercion or compulsion based on need that renders the argument that this is a voluntary application to be really begging the question.
Unidentified Justice: Mr. Keppel, what if we disagree with you on the first part of your argument, and say that late registration is permissible under the statute?
Is the case over then?
You still have a Fifth Amendment issue, don't you?
William J. Keppel: Justice White, we do.
Unidentified Justice: And in that situation, if he says, no, I have not registered but I want to register now in order to get the aid, your Fifth Amendment argument is still there, I take it.
William J. Keppel: It is indeed.
Unidentified Justice: And Justice Brennan's question would be answered, wouldn't it?
William J. Keppel: It would, Your Honor.
Unidentified Justice: They could get the aid, as long as they registered--
William J. Keppel: As long as--
Unidentified Justice: --and in the course of doing so, admitting that they were late.
William J. Keppel: --And that's what they'd be doing.
They'd be signing their confession when they signed the certification of compliance or non-compliance, or if they left it blank.
Unidentified Justice: But if you agree with that construction of the statute, the violation of law has dissipated.
There is no violation of law, as soon as he registers, so where is the... you know, I don't understand.
William J. Keppel: Looking at the Fifth Amendment problem as one in which invoking one's right to remain silent makes the price that is paid too costly, as this Court held in Spevack--
Unidentified Justice: The price is zero.
You comply with the law and you have no penalty.
What is the price?
William J. Keppel: --If there is immunity, there is no problem.
If they will grant immunity from prosecution.
Unidentified Justice: So in other words your argument fails if the statute is construed the other way.
Your compulsion is a compulsion to comply with the law, not to say anything.
Maybe your bill of attainder argument might fail, but that doesn't mean that he still couldn't be prosecuted for a crime, for having... failing to register.
Even if they accept late registration.
As long as you register, you get the aid.
But that doesn't mean that you can't be prosecuted.
William J. Keppel: That is exactly correct, Justice White.
As they argue, late registration is permissible for bill of attainder purposes.
The case of self-incrimination becomes stronger.
They can't have it both ways.
They have to select one or the other.
Now, the violation of the Fifth Amendment, as I stated, is not cured by late registration, and under any of the tests of the cases cited both by the government, the Garrity, the Lefkowitz cases, the Spevack cases, the price paid in cutting off financial aid, in terminating college, in hampering or perhaps terminating the pursuit of one's chosen vocation is too costly to make the imposition or the invocation of the Fifth Amendment in the context here.
This Court, as I said, in Torasco versus Watkins, Wyman versus Updegraff, held that unconstitutional conditions in the award of public employment or in the holding of public office cannot stand, and for them to say consequently that we can use unconstitutional conditions to bootstrap their Fifth Amendment argument again is unsuccessful.
Given the increasingly pervasive reach of government into virtually all of our lives, in the increasing numbers of federal jobs, of loans and grants and licenses, permits, employment the decision in this case will have far-reaching consequences.
If the Court approves this scheme reflected in Section 1113 there is nothing to stop the federal government from conditioning any aid or any contract or job of any kind on a test oath affirming registration not only for the draft but affirming non-violation or compliance with any penal criminal statute.
Unidentified Justice: May I ask you another question, because I am a little confused on the statutory scheme.
Assume the government is right on the construction with respect to 1113 for the moment.
It permits late registration to comply.
And assuming you, before you applied for student aid, you registered, but you were late in doing so.
You had been guilty of a crime up to the time you registered.
Now, after that, you apply for student aid.
Must you disclose the fact that you had not registered on time?
William J. Keppel: That fact will be known to the government.
Unidentified Justice: Well, that is not my question.
Must you disclose it in your application for student aid?
William J. Keppel: In the application itself, you do not disclose--
Unidentified Justice: You just have to say you have registered.
William J. Keppel: --That you have registered.
Unidentified Justice: So that if you follow that sequence of events, you can avoid the compulsion to incriminate yourself.
William J. Keppel: You are still susceptible to criminal prosecution.
Unidentified Justice: I understand, but you haven't incriminated yourself in the document you have been compelled to file.
William J. Keppel: The document itself does not contain a date, but the verification procedures in Section 1113 will quickly uncover the fact of late registration, and again, it is late registration itself that might be... might qualify one for financial aid but which is clearly an independent crime which cannot be cured in the context here without the grant of some kind of immunity.
And so if this scheme is approved, there is nothing not only to stop the federal government but to stop state governments from conditioning benefits, such as the driver's license, the attendance at any state school, occupational licenses--
Chief Justice Warren E. Burger: Your time has expired now, Mr. Keppel.
William J. Keppel: --Thank you.
Chief Justice Warren E. Burger: Do you have anything further, Mr. Solicitor General?
ORAL ARGUMENT BY REX E. LEE, ESQ., ON BEHALF OF THE APPELLANTS -- REBUTTAL
Rex E. Lee: The one thing I planned to say was what Justice Stevens has just clarified, and unless there are any further questions with regard to that matter or anything else, I have nothing further.
Chief Justice Warren E. Burger: Very well.
Thank you, gentlemen.
The case is submitted.