NationStates Jolt Archive

A federal judge in Boston recently ruled that a 1985 law that bans most federal employment for men who knowingly fail to register for the military draft is unconstitutional because it consitutes a "bill of attainder."

A bill of attainder, which is forbidden by Article I, Section 9, paragraph 3 of the U.S. Constituion is a legislative act that singles out an individual or group for punishment without a trial. Here is more info re what a bill of attainder is: http://en.wikipedia.org/wiki/Bill_of_attainder; http://caselaw.lp.findlaw.com/data/constitution/article01/47.html#2

Here is a pdf of the court's decision (http://pacer.mad.uscourts.gov/dc/cgi-bin/recentops.pl?filename=woodlock/pdf/elgin%20jan%2026%202009.pdf) (34 pages).

Judge: Draft requirement for fed jobs is unconstitutional (http://www.usatoday.com/news/nation/2009-01-27-draft-law_N.htm)

BOSTON (AP) — Henry Tucker had worked for the Federal Deposit Insurance Corp. for 17 years when he was told he was going to lose his job — because he hadn't registered for the military draft when he was 18. Tucker was offered another job as a budget analyst at the National Institutes of Health, but that was withdrawn when the agency learned he never registered.

Tucker, now 38, said when he was 18, he didn't know he had to register for Selective Service.

"There hasn't been a draft since I was a child. To all of a sudden say this is an issue, that is unfair," said Tucker, of Washington, D.C.

A federal judge in Boston agreed, ruling in a case brought by Tucker and three other men that a 1985 law that bans most federal employment for men who knowingly fail to register for the military draft is unconstitutional.

The Military Selective Service Act requires men to register between the ages of 18 and 26.

U.S. District Judge Douglas Woodlock ruled Monday that a separate law that bans employment at federal executive agencies for men who fail to register is an unconstitutional "bill of attainder," an obscure Constitutional provision that prohibits the legislative branch from punishing people without a judicial trial.

Woodlock rejected the argument that the Military Selective Service Act, because it applies only to men, is discriminatory and violates the Constitution's equal protection guarantees.

A spokesman for the U.S. Department of Justice had no immediate comment, saying the case was being handled by the U.S. Attorney's Office. A spokeswoman for U.S. Attorney Michael Sullivan did not immediately return a call seeking comment on whether they will appeal Woodlock's decision.

The ruling means the lawsuit may move forward, possibly to trial. The men are seeking reinstatement to their jobs and back pay.

Attorney Harvey Schwartz said he will seek to have the case certified as a class-action lawsuit to represent thousands of federal employees who have been fired because they failed to register.

"Hopefully, it will restore jobs for ... men who were fired not because they couldn't do their jobs, but because they hadn't done something when they were 18 years old," Schwartz said.

I am still reading the opinion, but it is an interesting variation on SCOTUS's ruling in Selective Service System v. Minnesota Public Interest Research Group (http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&invol=841&vol=468), 468 U.S. 841 (1984). In SSS v. MPIRG, 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. SCOTUS faced the questions of whether that statute was an unconstitutional bill of attainder. SCOTUS upheld the law. The District Court in the currrent case not only distinquishes SSS v. MPRIG, but also concludes that SCOTUS's analysis from that case leads to the conculsion that the law in this case is a bill of attainder.

First, what comment, if any, does NSG have on the consitutional decision here? What chance do you think it has of being overturned?

Second, what do you think in general of a law banning those that failed to register for selective service from having government jobs?

Man if only this ruling had came back when I registered for the draft.

Man if only this ruling had came back when I registered for the draft.

Note: this doesn't invalidate the requirement that one register for the draft.

The Military Selective Service Act (the “MSSA”), 50 App. U.S.C. §§ 451-473, requires that men register with the Selective Service System between the ages of eighteen and twenty-six. 50 App. U.S.C. § 453(a). A separate federal statute, 5 U.S.C. § 3328(a)(2), provides that men who knowingly and willfully fail to register under the MSSA are ineligible for employment by a federal executive agency. Only the latter law is being ruled unconsitutional. There are other penalties for violating the MSSA.

First, what comment, if any, does NSG have on the consitutional decision here? What chance do you think it has of being overturned?

I don't really know enough to comment.

Second, what do you think in general of a law banning those that failed to register for selective service from having government jobs?

I think such laws are silly. If a situation came about where a draft were necessary I'm fairly certain they'd check everyone out anew whether they'd registered at the age of 18 or not.

Clearly this man is a liberal activist judge.

Hm. Seems pretty cut and dry to me. I dont see how this is not the collective punishment of a group of people without a trial.

We'll see if it gets overturned. I personally am willing to bet it will somehow.

it will be over turned or the law will be reworded, so it wont be a punishment but a requirement for federal employment.

Hm. Seems pretty cut and dry to me. I dont see how this is not the collective punishment of a group of people without a trial.



On the other hand, if I were the government I might argue that the purpose of requiring the Selective Service registration be present be merely for purposes of positive identification. I mean, that's clearly not the intent of the original law, but that's what I'd try to pull off, since there don't seem to be any particularly easy alternatives.

While we are in the general topic area, the registration of only men and not women is discriminatory bullshit.

SCOTUS was wrong when they said otherwise in Rostker v. Goldberg (http://laws.findlaw.com/us/453/57.html), 453 U.S. 57 (1981).

While we are in the general topic area, the registration of only men and not women is discriminatory bullshit.

SCOTUS was wrong when they said otherwise in Rostker v. Goldberg (http://laws.findlaw.com/us/453/57.html), 453 U.S. 57 (1981).
1981 was so long ago.

maybe they will bring the issue up again. should we ever need a draft again it is foolish to imagine that we wont be drafting women too.

TCT:

I put on my Internet Lawyer hat (the one they give you when you buy 12 Angry Men and A Few Good Men on Amazon), and read (the first half of) the decision.

I have this question:

Couldn't congress just change the law from having to register between 18-26, to, say, 18-126?

Would this change the justification for the finding under the "irreversible acts" guidepost of the Specification clause (not sure if clause is the right word?) of the SCOTUS definition of a Bill of Attainder?

I read some stuffs on pages 7-8, 17-18, and 21-22 (I hope I remembered the correct pages) that made me think this might work as a legislative remedy. Effectively changing the law from "You are fired because you failed to register by age 26" to "You will be fired if you fail to register at this time?"

If what I said makes no sense, or is so terribly wrong as to make me sound idiotic, I reserve the right to blame Tom Cruise.

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I skipped over the Equal Protection stuffs. Didn't care to read that. As a vet, I think that 1) not requiring women to register for the draft, and 2) 'Don't Ask, Don't Tell' are both made of phail.

Just my $.02


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EDIT: and, given what you said in post #3, shouldn't the title be changed from 'Draft' to 'Selective Service'? :p

TCT:

I put on my Internet Lawyer hat (the one they give you when you buy 12 Angry Men and A Few Good Men on Amazon), and read (the first half of) the decision.

I have this question:

Couldn't congress just change the law from having to register between 18-26, to, say, 18-126?

Would this change the justification for the finding under the "irreversible acts" guidepost of the Specification clause (not sure if clause is the right word?) of the SCOTUS definition of a Bill of Attainder?

I read some stuffs on pages 7-8, 17-18, and 21-22 (I hope I remembered the correct pages) that made me think this might work as a legislative remedy. Effectively changing the law from "You are fired because you failed to register by age 26" to "You will be fired if you fail to register at this time?"

If what I said makes no sense, or is so terribly wrong as to make me sound idiotic, I reserve the right to blame Tom Cruise.

********************************************

I skipped over the Equal Protection stuffs. Didn't care to read that. As a vet, I think that 1) not requiring women to register for the draft, and 2) 'Don't Ask, Don't Tell' are both made of phail.

Just my $.02

I haven't read the decision, but if I had to throw out a guess, it basically functions like this:

1) failure to register is a crime

2) if you are found to have committing the crime of failing to register, you get fired

Ergo, you are punished for committing a crime, without having ever been found guilty of committing a crime.

Failing to register would thus be failing to register. Regardless of how old you were

TCT:

I put on my Internet Lawyer hat (the one they give you when you buy 12 Angry Men and A Few Good Men on Amazon), and read (the first half of) the decision.

I have this question:

Couldn't congress just change the law from having to register between 18-26, to, say, 18-126?

Would this change the justification for the finding under the "irreversible acts" guidepost of the Specification clause (not sure if clause is the right word?) of the SCOTUS definition of a Bill of Attainder?

I read some stuffs on pages 7-8, 17-18, and 21-22 (I hope I remembered the correct pages) that made me think this might work as a legislative remedy. Effectively changing the law from "You are fired because you failed to register by age 26" to "You will be fired if you fail to register at this time?"

If what I said makes no sense, or is so terribly wrong as to make me sound idiotic, I reserve the right to blame Tom Cruise.

********************************************

I skipped over the Equal Protection stuffs. Didn't care to read that. As a vet, I think that 1) not requiring women to register for the draft, and 2) 'Don't Ask, Don't Tell' are both made of phail.

Just my $.02


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EDIT: and, given what you said in post #3, shouldn't the title be changed from 'Draft' to 'Selective Service'? :p

1. Kudos and gold stars for actually reading a long opinion I linked. :hail:

2. Your analysis is fundamentally sound. A key distinguishing fact is that these individuals were being "punished" for a past act they couldn't change. If they could keep their jobs by registering, it wouldn't be a bill of attainder.

3. Your EDIT is correct, but it wouldn't fit. :wink:

I haven't read the decision, but if I had to throw out a guess, it basically functions like this:

1) failure to register is a crime

2) if you are found to have committing the crime of failing to register, you get fired

Ergo, you are punished for committing a crime, without having ever been found guilty of committing a crime.

Failing to register would thus be failing to register. Regardless of how old you were

Wrongo, wrongo, my friend. That'll teach to opine without reading the relevant law. :eek::p:wink:

2. Your analysis is fundamentally sound. A key distinguishing fact is that these individuals were being "punished" for a past act they couldn't change. If they could keep their jobs by registering, it wouldn't be a bill of attainder.

ahh ok, I see what he's asking now. Yes, I see your point, if it's a "you must correct this or we fire you" it wouldn't qualify. What makes it a bill of attainer is that they're essentially being punished for a criminal act already committed

Wrongo, wrongo, my friend. That'll teach to opine without reading the relevant law. :eek::p:wink:

it wasn't so much that I got my opinion wrong, as I misread his question :p

If he asked what I THOUGHT he asked, I would have been correct, heh.

1. Kudos and gold stars for actually reading a long opinion I linked. :hail:

2. Your analysis is fundamentally sound. A key distinguishing fact is that these individuals were being "punished" for a past act they couldn't change. If they could keep their jobs by registering, it wouldn't be a bill of attainder.

3. Your EDIT is correct, but it wouldn't fit. :wink:

1. It's not the first posted opinion that I've read. :eek2: Just the first one that I've thought "Hey, what about..."

2. Sweet. At least I know the hat works. I might even buy Erin Brockovich to get the expansion pack.

3. Understood. :wink:

Wrongo, wrongo, my friend. That'll teach to opine without reading the relevant law. :eek::p:wink:


it wasn't so much that I got my opinion wrong, as I misread his question :p

If he asked what I THOUGHT he asked, I would have been correct, heh.


In the hills, tales will be told, and songs will be sung, about that day when the diminutive EtherTubes Barrister slew the mighty Harvardite.

The Killer awoke before dawn. He put his boots on. He took a brief from the ancient gallery and he...

He quit while he was ahead. :)

they're essentially being punished for a criminal act already committed
How dastardly! It's much fairer to punish people for the criminal acts they haven't done yet :p

I keep falling asleep while trying to read the opinion. How exactly do they get away with upholding the MPIRG case? It would seem that being denied federal aid is similar to being denied employment.

First, what comment, if any, does NSG have on the consitutional decision here? What chance do you think it has of being overturned?

Second, what do you think in general of a law banning those that failed to register for selective service from having government jobs?

I think that everyone should have to register for the draft, failure to do so should be imprisonment for about five years.

On the other hand, if I were the government I might argue that the purpose of requiring the Selective Service registration be present be merely for purposes of positive identification. I mean, that's clearly not the intent of the original law, but that's what I'd try to pull off, since there don't seem to be any particularly easy alternatives.

But women aren't required to register, right? So it can't just be part of the identification process unless women have to sign up too. Or else women just can't have federal jobs.

I think that everyone should have to register for the draft, failure to do so should be imprisonment for about five years.

And doing so is punished with 4 years of active duty and 4 years of reserve duty?

I know which I'd pick.

Frankly, the notion that we still have a draft board even though we don't have the draft is ridiculous. They should scrap the whole system as a waste of public funds, and if a draft becomes necessary just pull names from the social security register and IRS records.

I wish they had the balls to declare Selective Service unconstitutional.

I wish they had the balls to declare Selective Service unconstitutional.

Oh, this should be good.


How, prey tell, is selective service unconstitutional?

I dont like it either, but you can just decide something violates the constitution. Believe it or not, for something to be unconstitutional, there has to actually be something in the Constitution against it.

I think that everyone should have to register for the draft, failure to do so should be imprisonment for about five years.

With the exception of an age limit on when one must register and the requirement that only men must register, your dream is true.

Almost all male U.S. citizens, and male aliens living in the U.S., who are 18 through 25, are required to register with Selective Service. A man who fails to register may, if prosecuted and convicted, face a fine of up to $250,000 and/or a prison term of up to five years.

The issue in this case is that, without having been prosecuted and convicted for failing to register, these men are being punished by the legislature.

I keep falling asleep while trying to read the opinion. How exactly do they get away with upholding the MPIRG case? It would seem that being denied federal aid is similar to being denied employment.

The key factor in MPIRG was that those who had failed to register were not automatically denied aid permanently, but rather were given 30 days to register and become qualified for aid. As one source explains:

[The statute at issue in the MPIRG case] did not single out those who failed to register, or make them ineligible based on that past conduct. It did not requirer egistration within the time period established by the Presidential Proclamation, nor did it deem late registrants ineligible for aid. Rather, it "clearly gives non-registrants 30 days after receiving notice that they are ineligible for Title IV aid to register for the draft and qualify for aid." Nor did it inflict punishment, at least as that term was understood in the Bill of Attainder Clause in the Constitution. "It does not even deprive appellees of Title IV benefits permanently," the Chief Justice wrote, "since it leaves open perpetually the possibility of qualifying for aid." In passing 12(f), Congress had meant simply to "encourage registration" by those who were required to register and had not done so. It was not punitive in nature, but rather was intended to provide "a rational means to improve compliance with the registration requirements." (link (http://law.jrank.org/pages/12862/Selective-Service-v-Minnesota-Public-Interest-Research-Group.html))

In the case at hand, the individuals are not allowed to register late. Merely having failed to register when they were required to (while they were 18 to 25) is permanently held against them and, thus the argument that, they are punished for it without trial.

I wish they had the balls to declare Selective Service unconstitutional.

I'd love to dance this dance again, so pray tell: why is the Selective Service unconstitutional?

Clearly this man is a liberal activist judge.

Hm. Seems pretty cut and dry to me. I dont see how this is not the collective punishment of a group of people without a trial.

We'll see if it gets overturned. I personally am willing to bet it will somehow.

Federal employment is voluntary, Selective Service is the Law. Failure to register is a crime. Knowingly and willingly committing a crime SHOULD be an immediate disqualifier for Federal Employment (we know it isn't, witness the recently appointed Secretary of Treasury's Tax-Evasion case).

In this case, the Judge is wrong.

Federal employment is voluntary, Selective Service is the Law. Failure to register is a crime. Knowingly and willingly committing a crime SHOULD be an immediate disqualifier for Federal Employment (we know it isn't, witness the recently appointed Secretary of Treasury's Tax-Evasion case).

In this case, the Judge is wrong.

Um. I see what you are saying, but the whole point of the Constitution's ban on Bills of Attainder is that it is for the judicial branch (not the legislative) to declare someone guilty of knowingly and willingly committing a crime. It would be fine if everyone convicted of failing to register was barred from federal employment.

Oh, this should be good.


How, prey tell, is selective service unconstitutional?

I dont like it either, but you can just decide something violates the constitution. Believe it or not, for something to be unconstitutional, there has to actually be something in the Constitution against it.

The 16th Amendment clearly prohibits this kind of activity, as Jay so explicitly stated in Federalist 78.

The 16th Amendment clearly prohibits this kind of activity, as Jay so explicitly stated in Federalist 78.

Poe's Law* makes this type of humor dangerous. :D

*I know Poe's Law is about parodies of fundamentalism, but I think it applies to other types of paradoies.

Poe's Law makes this type of humor dangerous. :D

Yeah yeah... Hamilton wrote 78, I know alright!

Um. I see what you are saying, but the whole point of the Constitution's ban on Bills of Attainder is that it is for the judicial branch (not the legislative) to declare someone guilty of knowingly and willingly committing a crime. It would be fine if everyone convicted of failing to register was barred from federal employment.

It's the Knowingly and Willingly part, Cat-Tribe, not so much the "forgot to register" here. How a Federal employer knows it was "Knowingly and willingly" unless the applicant Admits it?

It's the Knowingly and Willingly part, Cat-Tribe, not so much the "forgot to register" here. How a Federal employer knows it was "Knowingly and willingly" unless the applicant Admits it?

Relevant language from the U.S. District Court opinion:

Under the MSSA, a person cannot be denied a right under
federal law for failing to register if “the person shows by a
preponderance of the evidence that the failure . . . was not a
knowing and willful failure to register.” 50 App. U.S.C. §
462(g)(2). The procedure for determining whether an individual
is eligible for federal agency employment is outlined in federal
regulations, 5 C.F.R. § 300.705 (1999). If the individual is
under age twenty-six, the agency will advise him to register
promptly and then to show the agency proof of his registration.
If the individual is age twenty-six or older, then the employing
agency provides written notice to the individual that he is
ineligible for federal agency employment. 5 C.F.R. §
300.705(d)(1). If the individual submits a written application
to the OPM for a decision on whether his failure to register was
knowing and willful, the OPM will provide one. Id. Unless the
OPM finds that the individual's failure to register “was neither
knowing nor willful,” the individual is not eligible for federal
employment. 5 C.F.R. § 300.705(e). Under the statute, 50 App.
U.S.C. § 462(g)(2), and the implementing federal regulations, 5
C.F.R. § 300.706(a), the burden of proof is on the applicant. As
a matter of statute, this burden is not easily rebuttable because
“(e)very person shall be deemed to have notice of the
requirements upon publication by the
President of a proclamation or other public notice fixing a time
for any registration . . .” 50 App. U.S.C. § 465(a). By issuing
Presidential Proclamation No. 4771, 45 Fed. Reg. 45,247 (July 2,
1980), President Carter provided the requisite notice. As will
appear below, [I]this “deeming” presumption of knowledge is
apparently treated as effectively irrebuttable by the OPM. (emphasis added)

EDIT: In other words, the law presumes that a failure to register is knowing and willful. Further, although there is ostensibly an opportunity for individuals to rebut this presumption, the government in practice treats the presumption as irrebuttable.

Federal employment is voluntary, Selective Service is the Law. Failure to register is a crime. Knowingly and willingly committing a crime SHOULD be an immediate disqualifier for Federal Employment (we know it isn't, witness the recently appointed Secretary of Treasury's Tax-Evasion case).

In this case, the Judge is wrong.

It's rare one so willingly displays ones ignorance. You don't even understand the ruling.

It's the Knowingly and Willingly part, Cat-Tribe, not so much the "forgot to register" here. How a Federal employer knows it was "Knowingly and willingly" unless the applicant Admits it?

irrelevant. It's for the courts to determine whether or not he committed a crime.

Federal employment is voluntary, Selective Service is the Law. Failure to register is a crime. Knowingly and willingly committing a crime SHOULD be an immediate disqualifier for Federal Employment (we know it isn't, witness the recently appointed Secretary of Treasury's Tax-Evasion case).

In this case, the Judge is wrong.

Wow. You really dont understand the ruling. Learn it and then debate, or gtfo.

Relevant language from the U.S. District Court opinion:

Under the MSSA, a person cannot be denied a right under
federal law for failing to register if “the person shows by a
preponderance of the evidence that the failure . . . was not a
knowing and willful failure to register.” 50 App. U.S.C. §
462(g)(2). The procedure for determining whether an individual
is eligible for federal agency employment is outlined in federal
regulations, 5 C.F.R. § 300.705 (1999). If the individual is
under age twenty-six, the agency will advise him to register
promptly and then to show the agency proof of his registration.
If the individual is age twenty-six or older, then the employing
agency provides written notice to the individual that he is
ineligible for federal agency employment. 5 C.F.R. §
300.705(d)(1). If the individual submits a written application
to the OPM for a decision on whether his failure to register was
knowing and willful, the OPM will provide one. Id. Unless the
OPM finds that the individual's failure to register “was neither
knowing nor willful,” the individual is not eligible for federal
employment. 5 C.F.R. § 300.705(e). Under the statute, 50 App.
U.S.C. § 462(g)(2), and the implementing federal regulations, 5
C.F.R. § 300.706(a), the burden of proof is on the applicant. As
a matter of statute, this burden is not easily rebuttable because
“(e)very person shall be deemed to have notice of the
requirements upon publication by the
President of a proclamation or other public notice fixing a time
for any registration . . .” 50 App. U.S.C. § 465(a). By issuing
Presidential Proclamation No. 4771, 45 Fed. Reg. 45,247 (July 2,
1980), President Carter provided the requisite notice. As will
appear below, [I]this “deeming” presumption of knowledge is
apparently treated as effectively irrebuttable by the OPM. (emphasis added)

EDIT: In other words, the law presumes that a failure to register is knowing and willful. Further, although there is ostensibly an opportunity for individuals to rebut this presumption, the government in practice treats the presumption as irrebuttable.

So...it's similar to, say, Income Tax filing, where the presumption is that you know you're supposed to do it, and the burden of proof that you did not know, is on you.

Advertising and reminders that people over eighteen who are citizens of the United STates saturate the televised media, are posted in every post-office and most public buildings-including, presumably, government offices where they are accepting applications for Federal Employment.

I think it's reasonable to presume that someone capable of reading the application and finding the address of a Federal Building is going to know they are supposed to register for Selective Service, that it is the LAW, and that breaking the law can affect their ability to get things like Student Loans and Government Jobs.

Now, if you can show an example of Federal Employment that doesn't require a civil-service exam (other than, say, elected positions that must be campaigned for)... the Judge appears to be making a personal political statement, with the power of legislation, rather than a ruling ON legislation.

So...it's similar to, say, Income Tax filing, where the presumption is that you know you're supposed to do it, and the burden of proof that you did, is on you.

Advertising and reminders that people over eighteen who are citizens of the United STates saturate the televised media, are posted in every post-office and most public buildings-including, presumably, government offices where they are accepting applications for Federal Employment.

I think it's reasonable to presume that someone capable of reading the application and finding the address of a Federal Building is going to know they are supposed to register for Selective Service, that it is the LAW, and that breaking the law can affect their ability to get things like Student Loans and Government Jobs.

Now, if you can show an example of Federal Employment that doesn't require a civil-service exam (other than, say, elected positions that must be campaigned for)... the Judge appears to be making a personal political statement, with the power of legislation, rather than a ruling ON legislation.

Again, you dont understand the ruling.

Again, you dont understand the ruling.

No, I'm disagreeing with the Judge, and questioning his judgement and motives-I understand what he said.

Look, it's very simple, but there's this requirement-if you want a Federal Job, and you're a guy, and you're qualified to apply, you are required to register with Selective Service first. It's a reasonable requirement. There's heavy saturation of "Information" telling citizens everywhere (particularly in the demographic likely to apply for government jobs) about this.

It's publicly posted in federal buildings, government offices, post-offices, ads are in television and radio, it's not a secret.

It's a requirement to get the job. The judge has a problem with that, and found a way to parse things to let him legislate it out from the bench.

When you go in to Tax court, you're already guilty-there's no requirement for Habeas Corpus, no presumption of innocence applies, you're going in to prove you didn't cheat on your taxes, or that you didn't knowingly and willingly forget to file.

We have this unwritten bill-of-attainder with something that can put you in prison, it's certainly kosher then to have it as a requirement for employment with an agency.

"Oh, you didn't register for Selective Service? too bad, you're not qualified, Next please..."

It's a Requirement for Employment. It's based on an active choice. To run afoul, you have to choose not to do something that, unless you're blind, deaf, and mentally handicapped, you should already know you have to do (because, as I said, it's at saturation levels in most places where the majority can read a sign, hear a radio, or, as the bulk of America does, spend six to sixteen hours watching television.)

I have to disagree about the "heavy saturation". I can't recall having seen anything about the registration for many years, and if you had asked me whether it was still in effect or not, I really couldn't have told you. (Of course, since I'm well past the applicable age, I may have just tuned it out.)

No, I'm disagreeing with the Judge, and questioning his judgement and motives-I understand what he said.

Look, it's very simple, but there's this requirement-if you want a Federal Job, and you're a guy, and you're qualified to apply, you are required to register with Selective Service first. It's a reasonable requirement. There's heavy saturation of "Information" telling citizens everywhere (particularly in the demographic likely to apply for government jobs) about this.

It's publicly posted in federal buildings, government offices, post-offices, ads are in television and radio, it's not a secret.

It's a requirement to get the job. The judge has a problem with that, and found a way to parse things to let him legislate it out from the bench.

When you go in to Tax court, you're already guilty-there's no requirement for Habeas Corpus, no presumption of innocence applies, you're going in to prove you didn't cheat on your taxes, or that you didn't knowingly and willingly forget to file.

We have this unwritten bill-of-attainder with something that can put you in prison, it's certainly kosher then to have it as a requirement for employment with an agency.

"Oh, you didn't register for Selective Service? too bad, you're not qualified, Next please..."

It's a Requirement for Employment. It's based on an active choice. To run afoul, you have to choose not to do something that, unless you're blind, deaf, and mentally handicapped, you should already know you have to do (because, as I said, it's at saturation levels in most places where the majority can read a sign, hear a radio, or, as the bulk of America does, spend six to sixteen hours watching television.)

1. If this is such an obvious requirement for employment, how do you explain the circumstances of the individual plaintiffs in the case?

Michael Elgin was hired by the Internal Revenue Service
(“IRS”) in 1991, when he was around twenty-five. On February 22,
2007, the Office of Personnel Management (“OPM”) found that Elgin
was ineligible for IRS employment because he failed to register
with the Selective Service System. He was around forty-one at
the time he lost his job.

Aaron Lawson, thirty-two, began working at the Bureau of
Land Management in 2003 when he was around twenty-six. He has
been notified that his employment will be terminated as a result
of his failure to register with the Selective Service System.

Henry Tucker worked for the Federal Deposit Insurance
Corporation (“FDIC”) for seventeen years. An offer to work at
the National Institutes of Health (“NIH”), extended in 2007, was
withdrawn when the NIH learned that Tucker had never registered
with the Selective Service System.

Christon Colby was employed by the IRS for more than five
years. In 2006, when Colby was around thirty years old, the OPM
determined he had knowingly and willfully failed to register for
the draft, and was not eligible for federal agency employment.

2. Notice the "court" in tax court. You get a judicial hearing. (I'll admit my ignorance of tax court, but they don't impose punishment without some judicial process.) Tax liability is not a bill of attainder.

3. Your emphasis on "choice" is irrelevant and shows a lack of understanding of what a bill of attainder is. Past unconstitutional bills of attainder have included, for example, denying employment to former Confederates.

4. This "activist" judge happens to be a Republican appointed by President Ronald Reagan. I don't know what reason you have to question his motives.

I have to disagree about the "heavy saturation". I can't recall having seen anything about the registration for many years, and if you had asked me whether it was still in effect or not, I really couldn't have told you. (Of course, since I'm well past the applicable age, I may have just tuned it out.)

Exactically. Out of several people I spoke to about this all thought the registration requirement was no longer in force. I had to check the Selective Service webpage to be sure.

I have to disagree about the "heavy saturation". I can't recall having seen anything about the registration for many years, and if you had asked me whether it was still in effect or not, I really couldn't have told you. (Of course, since I'm well past the applicable age, I may have just tuned it out.)

I doubt you would be saturated, but I fall within that range and I've seen it a few times before. When I did my driver's license I'm pretty sure it was on that, and just recently when I reapplied for my FAFSA it was on there too.

I don't know if that's saturation, but I see it occasionally.

1. If this is such an obvious requirement for employment, how do you explain the circumstances of the individual plaintiffs in the case?

Michael Elgin was hired by the Internal Revenue Service
(“IRS”) in 1991, when he was around twenty-five. On February 22,
2007, the Office of Personnel Management (“OPM”) found that Elgin
was ineligible for IRS employment because he failed to register
with the Selective Service System. He was around forty-one at
the time he lost his job.

Aaron Lawson, thirty-two, began working at the Bureau of
Land Management in 2003 when he was around twenty-six. He has
been notified that his employment will be terminated as a result
of his failure to register with the Selective Service System.

Henry Tucker worked for the Federal Deposit Insurance
Corporation (“FDIC”) for seventeen years. An offer to work at
the National Institutes of Health (“NIH”), extended in 2007, was
withdrawn when the NIH learned that Tucker had never registered
with the Selective Service System.

Christon Colby was employed by the IRS for more than five
years. In 2006, when Colby was around thirty years old, the OPM
determined he had knowingly and willfully failed to register for
the draft, and was not eligible for federal agency employment.

2. Notice the "court" in tax court. You get a judicial hearing. (I'll admit my ignorance of tax court, but they don't impose punishment without some judicial process.) Tax liability is not a bill of attainder.

3. Your emphasis on "choice" is irrelevant and shows a lack of understanding of what a bill of attainder is. Past unconstitutional bills of attainder have included, for example, denying employment to former Confederates.

4. This "activist" judge happens to be a Republican appointed by President Ronald Reagan. I don't know what reason you have to question his motives.

Okay, four federal employees, who didn't know the requirements of their jobs get fired?

Wah. Cry me a river. Let's go over these cases...

1. Michael Elgin was 25 in 1991, which would be...what, twelve years since Carter signed the law. Presumably he was neither illiterate, nor lived without radio or television for most of that time. In 1989, people were worried that the Gulf war would require a draft-selective service was news, obviously there was some flawed screening in the Federal hiring office that handled his application, or he didn't require a background check (rare, but it happens) and was missed. The only "Injustice" here is that he was hired in the first place-unlike Former Confederates, he could have corrected this oversight at any time before he was caught.

2. Aaron Lawson was twenty-six in 2003, he was obviously NOT employed prior to the passing of this law, and as a BLM employee, again, someone wasn't doing their damn job at the BLM when they hired him. Twenty-Six is not too old to correct this deficiency. Unlike a "Former Confederate", a person who doesn't register can change their status-this makes it a matter of personal choice-his choice costs him his job, so be it. If an employer doesn't want you smoking dope, you can quit, or you can get another job-filling out a postcard takes five minutes.

3. Henry Tucker: Seventeen years...let's see, he was hired by FDIC after the law was passed, again someone in the hiring office either didn't do their job at the time. Certainly Mr. Tucker was a grown-up AFTER the law passed, losing a job opportunity to that is no different from losing a job opportunity due to a previous criminal record, or a record of drug abuse. He didn't get the job, because he didn't meet the qualifications-one of which is that one registers with Selective Service.

4. Criston Colby: hired in 2001, someone obviously blew it on the background check AGAIN. NOT QUALIFIED. If you're hiring a tax-man, you want a guy who can track the details, right? Someone who familiarizes himself with the rules, and regulations? "Knowingly and willingly" violated federal law isn't what you want in the most powerful agency in the Federal Government, an agency with access to the private records of every adult citizen in the nation (without a court order!).


I don't care if the judge was a Republican, Democrat, Libertarian, Socialist, Fascist, Bushevik, Clinton-blower, Obamaphile, Reaganite, or Carterist. Sometimes the law isn't nice, but it's not a "Class of Persons" here, it's people who broke the damn law, could have corrected it before they were caught, and chose not to do so.

Federal employment means you are accepting a paycheque, from Taxpayer funds, a cheque that comes with a lot of unrestrained power and authority. It presumes you are at least somewhat patriotic, that you are aware of the terms and conditions of your employment, and that you are inclined to serve.

It provides protection from Layoffs in bad economic times (government agencies don't shrink, they expand. "cuts" in the news are generally reductions in the rate of funding expansion, not true cuts thanks to zero-balance budgeting), guaranteed COLAs that are more generous than are found in the Private sector, the ability to shift from one agency to another rather than having to job-search in the real world when your department is cut, extremely generous (compared to non-government people) Pensions, and Seniority-based raises. All of these are provided without the requirement that you actually perform your job well.

True, as a Government employee (if you follow the rules) you won't get rich-but Uncle Sam won't let you starve in darkness either.

An arbitrary demand that can be satisfied with five minutes at the post office, or DMV, or even at your place of work isn't an onerous burden, and isn't the kind of thing you can't change-which former Confederates could not change, having already fought and lost a war- it's not a bill of attainder, it's a job requirement. That there are Personnel specialists in Government agencies that don't or didn't do their jobs is beside the point, and those persons should be investigated (but won't be) for negligence in the performance of their duties.

Did none of these guys ever register to vote? I don't know about everywhere, but in CA they attach the friggen selective service form to all of the registration forms.

Hell, we all did it in my high school gov class. The teacher had everyone who would be 18 before the next election fill out a voter registration form, and if male, fill out the selective service form attached to the back of it. (Don't remember if it was required or extra credit, this was a while back.)

Did none of these guys ever register to vote? I don't know about everywhere, but in CA they attach the friggen selective service form to all of the registration forms.

Hell, we all did it in my high school gov class. The teacher had everyone who would be 18 before the next election fill out a voter registration form, and if male, fill out the selective service form attached to the back of it. (Don't remember if it was required or extra credit, this was a while back.)

dude, you so need to change that avatar. I saw that thread and seriously thought "when was WYTYG in california, and why would she need to register for voting?"

The only "Injustice" here is that he was hired in the first place-unlike Former Confederates, he could have corrected this oversight at any time before he was caught.

*snip*Unlike a "Former Confederate", a person who doesn't register can change their status-this makes it a matter of personal choice-his choice costs him his job, so be it. If an employer doesn't want you smoking dope, you can quit, or you can get another job-filling out a postcard takes five minutes.

*snip*
I don't care if the judge was a Republican, Democrat, Libertarian, Socialist, Fascist, Bushevik, Clinton-blower, Obamaphile, Reaganite, or Carterist. Sometimes the law isn't nice, but it's not a "Class of Persons" here, it's people who broke the damn law, could have corrected it before they were caught, and chose not to do so.

*snip*
An arbitrary demand that can be satisfied with five minutes at the post office, or DMV, or even at your place of work isn't an onerous burden, and isn't the kind of thing you can't change-which former Confederates could not change, having already fought and lost a war- it's not a bill of attainder, it's a job requirement. That there are Personnel specialists in Government agencies that don't or didn't do their jobs is beside the point, and those persons should be investigated (but won't be) for negligence in the performance of their duties.

1. Despite my disagreement with much of your analysis and the careless vitriol with which you opine, I recognize that the District Court is going out on a bit of a limb here, may well be wrong, and is likely to be overturned.

2. That said, you central premise is wrong and fails to understand the reasoning behind the District Court's opinion: none of these men could have changed his registration status at the time it became an issue. Once you are 26, it is too late and you cannot fix your failure to register. Thus, this is like a former Confederate who cannot change his prior affilitation. That is a key fact behind the court's analysis.

3. I don't wish to regurgitate the entire analysis of the district court, but your argument that this is a legitimate job prerequisite does not appear to be suppported by the record. For example (emphasis added):

During recent congressional deliberations on amendments to §
3328, the House considered a bill that provided an exemption from
the employment prohibition once individuals reached thirty-one
years of age. H.R. 4108, 110th Cong. (2007). As reflected in
the House Report on the proposed amendment, the Selective Service
supported the change: “It is the position of the Selective
Service System that the existing lifelong ban on federal
employment for individuals who failed to register and are unable
to show that their failure was not knowing and willful serves no
useful registration purpose or any public policy benefit.” Id.
In short, the agency charged with administering the draft has
apparently concluded that the measure serves no nonpunitive
remedial purpose in encouraging compliance with the registration
process. I share the view that the plain purpose of the statute
is not remedial but punitive.

4. You lack of empathy for the plaintiff's in this case is perhaps understandable, but perhaps you won't feel the same way about two other cases discussed by the court:

The OPM, based on the legislative instruction of 50 App.
U.S.C. § 465(a), has denied the applications of individuals with
compelling circumstances which, but for the “deeming”
presumption, appear to have the indicia of lack of knowledge and
intent. For example, in Clarke v. Office of Personnel Mgmt., No.
H-07-0662, 2007 WL 2363295 (S.D. Tex. Aug. 17, 2007), the
district court describes an individual born in the United States,
but who moved to Canada when he was four years old. Id. at *1.
The plaintiff retained his U.S. citizenship, and visited the
United States on vacations, but otherwise had no contact with
government officials. Id. He moved to Houston from Canada in
2000 at the age of twenty-six. In 2003, when he learned that
federal law required him to register with the Selective Service
in order to be eligible for federal employment, he tried to
register but found that he was too old to do so. After Clarke
sought employment with U.S. Customs and Border Protection, the
OPM determined that Clarke's failure to register was knowing and
willful. Despite Clarke's circumstances, including his Canadian
residence until age twenty-six, the OPM ruled woodenly that
“every person is deemed to have notice of the requirements of the
Selective Service Requirement.” Id. at *2.

In another case, a veteran, who served on active duty for
almost fourteen years and then went into active duty with the
National Guard before transferring to the Army Reserves, was
found ineligible for federal employment as a heavy mobile
equipment repairer because he had not presented himself for
registration. Wyche v. Army, 2003 WL 21417221 (M.S.P.B. Apr.
2003). President Carter’s Proclamation 4771 provided a brief
six-day registration window between July 21 and July 27, 1980 for
those persons born in 1960, such as the appellant, who had
already turned eighteen before registration was reactivated. 45
Fed. Reg. 45,247, § 1-102. The appellant contended he had
entered the U.S. Army in 1979 under a delayed entry program while
he completed high school before actually entering active duty on
August 28, 1980. Wyche, 2003 WL 21417221, at *3. The
Administrative Law Judge for the Merit Systems Protection Board,
in the course of a decision holding that the Board did not have
jurisdiction over the decision to terminate his appointment,
observed that “[a]lthough the result in this appeal does not seem
equitable, I find there is a statutory prohibition that renders
the applicant ineligible for appointment.” Id. at *4. Thus, a
veteran who entered active military service immediately after
high school was denied federal employment because “he should
already have registered within 30 days of his 18th birthday; and
registration after reaching age 26 is prohibited by law.” Id. at
*7 n.3.

4. Your assertion that you care not about the ideology or politics of the judge that wrote this opinion is all very well, but it begs the question of why you made such a big deal of questioning his motives and asserting he was legislating from the bench.

dude, you so need to change that avatar. I saw that thread and seriously thought "when was WYTYG in california, and why would she need to register for voting?"
Heh, sorry. Its an avatar I use for a couple other forums... I should change it sometime I suppose.

1. Despite my disagreement with much of your analysis and the careless vitriol with which you opine, I recognize that the District Court is going out on a bit of a limb here, may well be wrong, and is likely to be overturned.

2. That said, you central premise is wrong and fails to understand the reasoning behind the District Court's opinion: none of these men could have changed his registration status at the time it became an issue. Once you are 26, it is too late and you cannot fix your failure to register. Thus, this is like a former Confederate who cannot change his prior affilitation. That is a key fact behind the court's analysis.

3. I don't wish to regurgitate the entire analysis of the district court, but your argument that this is a legitimate job prerequisite does not appear to be suppported by the record. For example (emphasis added):

During recent congressional deliberations on amendments to §
3328, the House considered a bill that provided an exemption from
the employment prohibition once individuals reached thirty-one
years of age. H.R. 4108, 110th Cong. (2007). As reflected in
the House Report on the proposed amendment, the Selective Service
supported the change: “It is the position of the Selective
Service System that the existing lifelong ban on federal
employment for individuals who failed to register and are unable
to show that their failure was not knowing and willful serves no
useful registration purpose or any public policy benefit.” Id.
In short, the agency charged with administering the draft has
apparently concluded that the measure serves no nonpunitive
remedial purpose in encouraging compliance with the registration
process. I share the view that the plain purpose of the statute
is not remedial but punitive.

4. You lack of empathy for the plaintiff's in this case is perhaps understandable, but perhaps you won't feel the same way about two other cases discussed by the court:

The OPM, based on the legislative instruction of 50 App.
U.S.C. § 465(a), has denied the applications of individuals with
compelling circumstances which, but for the “deeming”
presumption, appear to have the indicia of lack of knowledge and
intent. For example, in Clarke v. Office of Personnel Mgmt., No.
H-07-0662, 2007 WL 2363295 (S.D. Tex. Aug. 17, 2007), the
district court describes an individual born in the United States,
but who moved to Canada when he was four years old. Id. at *1.
The plaintiff retained his U.S. citizenship, and visited the
United States on vacations, but otherwise had no contact with
government officials. Id. He moved to Houston from Canada in
2000 at the age of twenty-six. In 2003, when he learned that
federal law required him to register with the Selective Service
in order to be eligible for federal employment, he tried to
register but found that he was too old to do so. After Clarke
sought employment with U.S. Customs and Border Protection, the
OPM determined that Clarke's failure to register was knowing and
willful. Despite Clarke's circumstances, including his Canadian
residence until age twenty-six, the OPM ruled woodenly that
“every person is deemed to have notice of the requirements of the
Selective Service Requirement.” Id. at *2.

In another case, a veteran, who served on active duty for
almost fourteen years and then went into active duty with the
National Guard before transferring to the Army Reserves, was
found ineligible for federal employment as a heavy mobile
equipment repairer because he had not presented himself for
registration. Wyche v. Army, 2003 WL 21417221 (M.S.P.B. Apr.
2003). President Carter’s Proclamation 4771 provided a brief
six-day registration window between July 21 and July 27, 1980 for
those persons born in 1960, such as the appellant, who had
already turned eighteen before registration was reactivated. 45
Fed. Reg. 45,247, § 1-102. The appellant contended he had
entered the U.S. Army in 1979 under a delayed entry program while
he completed high school before actually entering active duty on
August 28, 1980. Wyche, 2003 WL 21417221, at *3. The
Administrative Law Judge for the Merit Systems Protection Board,
in the course of a decision holding that the Board did not have
jurisdiction over the decision to terminate his appointment,
observed that “[a]lthough the result in this appeal does not seem
equitable, I find there is a statutory prohibition that renders
the applicant ineligible for appointment.” Id. at *4. Thus, a
veteran who entered active military service immediately after
high school was denied federal employment because “he should
already have registered within 30 days of his 18th birthday; and
registration after reaching age 26 is prohibited by law.” Id. at
*7 n.3.

4. Your assertion that you care not about the ideology or politics of the judge that wrote this opinion is all very well, but it begs the question of why you made such a big deal of questioning his motives and asserting he was legislating from the bench.

Two things:

1. you don't Have to work for the Federal Government. The law isn't required to be warm and fuzzy.

2. the ANG vet's case is an actual injustice, and likely a misapplication of the law. Probably a result of the rule of unintended consequences, but there are lots of positions for guys to work on heavy equipment in the market.

Third thing: By the age of 25, if you think you might want a Government job at some point, maybe you should register with Selective Service-esp. if your field of study (Major in College) is something that you can't get a job in unless it's a government job. It's like the Veteran's Preference rules that used to exist-not a vet? No Preference. A lot of people had problems with this-but there's that whole making a trade now for something later.

By registering, you put your name in the lottery for the Draft-something not used in a long, long, time. This is the 'investment', you're at risk of being called to serve. The return being that it allows you to get a chance (there's that word again) at getting a job with Uncle Sam. If you don't, you don't get it-simple.

The Guardsman's case is actually the more relevant one for another reason-the whole purpose of registration, is accepting the risk of being put in uniform. He already took that risk FOR Uncle Sam. HIS case has merit.

Also, Cat, these men were all well after the law was passed-it was already an issue when they applied for the jobs. Therefore, the premise that they couldn't change it when it became an issue is bullshit. It was already the LAW.

Two things:

1. you don't Have to work for the Federal Government. The law isn't required to be warm and fuzzy.

*snip*

Also, Cat, these men were all well after the law was passed-it was already an issue when they applied for the jobs. Therefore, the premise that they couldn't change it when it became an issue is bullshit. It was already the LAW.

I fully agree that everyone required to register with the Selective Service should know they are so required and there is little excuse for not doing so, but you fail to understand how (although that may be relevant as a matter of policy) that isn't particularly relevant to the question of law raised in this case.

It is well-established caselaw that denying employment opportunities can count as a punishment and, thus, such a statute can be a bill of attainder.

It is simply a fact that the plaintiffs cannot change their registration status, could not when this issue arose, and could not (in some cases) when they first sought employment.

In sum, your failure to familiarize yourself with even the basic facts or law involved in this case is noted. Further discussion seems pointless.

1)It is well-established caselaw that denying employment opportunities can count as a punishment and, thus, such a statute can be a bill of attainder.

Up until about fifty-some-odd years ago, it was well-established case-law that blacks and whites were "Separate but equal".

2)It is simply a fact that the plaintiffs cannot change their registration status, could not when this issue arose, and could not (in some cases) when they first sought employment.

But, with the exception of the Canadian-American, all were within the 18 to 26 age bracket when the law required registration! (i.e. the Law was in place before they sought employment, and they were likely aware of it with one exception who'd lived outside the country from age 4 to age 26.) all were 18 to 26 during the time in which the law was/is active and in force, with the exceptions of the Canadian-American and the ANG troop, all had ample opportunity to register and did not do so. The Canadian-American case was unavailable, and a waiver (since he obviously didn't miss his deadline willingly-and-knowingly, he was out of the country at that time) and the ANG troop (he actually DID the service for which one registers and the requirement for knowing-and-willing avoidance really shouldn't apply-only a lawyer or an imbecile would argue he was dodging a draft given the tendency for the Federal Government to deploy National Guardsmen in foreign operations from Panama to Afghanistan and beyond).

It leaves us with a non-performance of duties on the part of OPM-running for in some of these cases years, but it isn't like the Confederate case, because the Confederate case involved laws passed after the offense was committed.

These guys did what they did while the law was in effect, had ample opportunity to comply with the law while it was in effect, chose not to, and applied for jobs in the federal government, some after their window of opportunity to comply had closed. IOW, they broke a law that was in effect, knowingly and willingly, voluntarily, did not address the oversight, allowed the time limit to expire, then applied for Federal employment. It might be interesting to see which conflicts were predicted when they made their choice not to register, but that's neither here nor there-they elected to not do something that is required, why should they be allowed to pursue redress for damage they themselves did?

Up until about fifty-some-odd years ago, it was well-established case-law that blacks and whites were "Separate but equal".

This is pretty much the classic sign that someone has utterly no clue in an argument about the law. 'Nuff said.

EDIT: Your distinction of the Confederate case is based on misnomers and fallacies, but let's set that aside: how do you distinguish United States v. Brown (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=381&invol=437), 381 U.S. 437 (1965) (holding that a law forbidding anyone who belongs to the Communist Party or who has been a member thereof during the preceding five years from wilfully serving as a member of the executive board of a labor organization was an unconstitutional "bill of attainder")?

This is pretty much the classic sign that someone has utterly no clue in an argument about the law. 'Nuff said.

EDIT: Your distinction of the Confederate case is based on misnomers and fallacies, but let's set that aside: how do you distinguish United States v. Brown (http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=381&invol=437), 381 U.S. 437 (1965) (holding that a law forbidding anyone who belongs to the Communist Party or who has been a member thereof during the preceding five years from wilfully serving as a member of the executive board of a labor organization was an unconstitutional "bill of attainder")?

Labor organizations are private institutions, rather than Government offices. The government has no right to impose such a restriction on a private association. Government does not own the Union, and really has no right to a say in who they choose to place on their Board. (in addition to the Article, which this law violates by imposing a penalty on the Labor Unions, it also violates the first amendment's freedom of association clause, and may also be an indirect violation of the Fourth Amendment's protections and the Fifth Amendment, similar to requiring the Boy Scouts to accept Gay scoutmasters or private schools to comply with public school speech-codes, or, closer to some folks' hearts, requiring the NAACP to have White, Asian, and Hispanic directors proportionate to their share of the population under Affirmative Action.)

The law being challenged in U.S. V. Brown was a situation in which a third party with no jurisdiction (it requires a Federal indictment and conviction for criminal conspiracy to place a Union under Federal control, example being the Teamsters) is imposing a restriction on the relationship between private citizens that is punitive in nature, without there being a crime committed before-hand, which is comletely different from the current situation where the plaintiffs were in violation of the law for a number of years, and got their jobs under false pretenses (whether by COmission, or Omission). Also, at least in Federal employment, the Government has jurisdiction, a right to say who qualifies and who does not, whereas board membership in a Union is determined by that Union's governing documents which set forth whatever restrictions happen to be applicable.

Labor organizations are private institutions, rather than Government offices. The government has no right to impose such a restriction on a private association. Government does not own the Union, and really has no right to a say in who they choose to place on their Board. (in addition to the Article, which this law violates by imposing a penalty on the Labor Unions, it also violates the first amendment's freedom of association clause, and may also be an indirect violation of the Fourth Amendment's protections and the Fifth Amendment, similar to requiring the Boy Scouts to accept Gay scoutmasters or private schools to comply with public school speech-codes, or, closer to some folks' hearts, requiring the NAACP to have White, Asian, and Hispanic directors proportionate to their share of the population under Affirmative Action.)

The law being challenged in U.S. V. Brown was a situation in which a third party with no jurisdiction (it requires a Federal indictment and conviction for criminal conspiracy to place a Union under Federal control, example being the Teamsters) is imposing a restriction on the relationship between private citizens that is punitive in nature, without there being a crime committed before-hand, which is comletely different from the current situation where the plaintiffs were in violation of the law for a number of years, and got their jobs under false pretenses (whether by COmission, or Omission). Also, at least in Federal employment, the Government has jurisdiction, a right to say who qualifies and who does not, whereas board membership in a Union is determined by that Union's governing documents which set forth whatever restrictions happen to be applicable.

Funny, but your "analysis" of U.S. v. Brown completely ignores the actual reasoning of the Court and the fact that the law in question was a bill of attainder. No First, Fourth, or Fifth Amendment violations were found or even discussed because it was unnecessary to decide those issues.

I can only conclude from your comments that you either complete misunderstand what a bill of attainder is or simply don't have any problem with bills of attainder.

Funny, but your "analysis" of U.S. v. Brown completely ignores the actual reasoning of the Court and the fact that the law in question was a bill of attainder. No First, Fourth, or Fifth Amendment violations were found or even discussed because it was unnecessary to decide those issues.

I can only conclude from your comments that you either complete misunderstand what a bill of attainder is or simply don't have any problem with bills of attainder.

Layman's terms:

A bill of attainder (also known as an act or writ of attainder) is an act of legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial.

Okay, now...

Is it a crime to willfully refuse to register for Selective Service after age 18 and before age 26, yes or no?

Yes, it is. You quoted the relevant law yourself.

Is there a specific Class, individual, or group of persons who are pre-judged guilty of a crime?

Well...who are they?

If you refused to register when you were eligible, you broke the law, right? So you're guilty. The process by which it's checked can be unconstitutional (for instance, requiring the defendant to prove innocence under guilty-until-proven-innocent conditions) but the penalty for it doesn't, imho, constitute a bill of attainder. How the OPM went about their findings and firings may well do so-as the definition said, it's a matter of levying punishment without a trial-kind of like income-tax violations, you walk into a Tax-court you're guilty until you PROVE you're not (unless you're Charles Rangel or Tom Daschle and sit on the right committees to have friends in those tax-courts), which violates bill-of-attainder ("EVERYBODY" being guilty and subject to punishment without a proper trial) as well as violating due-process under the amendment. therefore, we have a precedent.

The bill of attainder in the Union case involved the assumption that membership in the Communist Party was the same thing as conspiracy to commit Espionage and Treason-an obvious example of a Constitutional violation at the root intent of the law itself-but the other items I brought up, I'd wager a shiny silver dollar from 1921, would have been brought up had the court not found the law itself to be written from the base as a violation of constitutional forbiddance against bills of attainder.

This, of course, presumes that Federal Employment is a right and not a Privelage, and that civil servants are not subject to the same risks employees in the private sector are, and that 'errors of omission' are sufficient excuse to cover applications made under false pretenses.

The false pretense in the case of the OP's quoted decision being that the applicants were, in fact, qualified and obeying Federal Laws, when they were in violation of same, and likely knew it when they did it.

When applying for certain government positions, not mentioning something (say, a pre-existing medical condition when enlisting in the military, or not mentioning that you were a member of ALF and helped burn down a university lab when applying for a job at the Justice Department) can be a felony-if someone finds out.

The failure of OPM to put together a constitutionally sound process and file the right paperwork ahead of time before firing these people doesn't make the law a bill-of-attainder, it makes the OPM and the Agencies that hired these guys guilty of negligence and non-performance of their duties. (admittedly, given the dates just in the sample, we're talking about socking in a couple of federal courts buildings for a long time indeed, perhaps long enough to make actual enforcement of the statute impractical from a budget standpoint).

Oh, and Cat...

The Omnibus Crime Bill of 1988, which pemits asset seizure without trial in Narcotics cases.

Is this NOT a Bill of Attainder?

Layman's terms:

A bill of attainder (also known as an act or writ of attainder) is an act of legislature declaring a person or group of persons guilty of some crime and punishing them without benefit of a trial.

Okay, now...

Is it a crime to willfully refuse to register for Selective Service after age 18 and before age 26, yes or no?

Yes, it is. You quoted the relevant law yourself.

Is there a specific Class, individual, or group of persons who are pre-judged guilty of a crime?

Well...who are they?

If you refused to register when you were eligible, you broke the law, right? So you're guilty. The process by which it's checked can be unconstitutional (for instance, requiring the defendant to prove innocence under guilty-until-proven-innocent conditions) but the penalty for it doesn't, imho, constitute a bill of attainder. How the OPM went about their findings and firings may well do so-as the definition said, it's a matter of levying punishment without a trial-kind of like income-tax violations, you walk into a Tax-court you're guilty until you PROVE you're not (unless you're Charles Rangel or Tom Daschle and sit on the right committees to have friends in those tax-courts), which violates bill-of-attainder ("EVERYBODY" being guilty and subject to punishment without a proper trial) as well as violating due-process under the amendment. therefore, we have a precedent.

The bill of attainder in the Union case involved the assumption that membership in the Communist Party was the same thing as conspiracy to commit Espionage and Treason-an obvious example of a Constitutional violation at the root intent of the law itself-but the other items I brought up, I'd wager a shiny silver dollar from 1921, would have been brought up had the court not found the law itself to be written from the base as a violation of constitutional forbiddance against bills of attainder.

This, of course, presumes that Federal Employment is a right and not a Privelage, and that civil servants are not subject to the same risks employees in the private sector are, and that 'errors of omission' are sufficient excuse to cover applications made under false pretenses.

The false pretense in the case of the OP's quoted decision being that the applicants were, in fact, qualified and obeying Federal Laws, when they were in violation of same, and likely knew it when they did it.

When applying for certain government positions, not mentioning something (say, a pre-existing medical condition when enlisting in the military, or not mentioning that you were a member of ALF and helped burn down a university lab when applying for a job at the Justice Department) can be a felony-if someone finds out.

The failure of OPM to put together a constitutionally sound process and file the right paperwork ahead of time before firing these people doesn't make the law a bill-of-attainder, it makes the OPM and the Agencies that hired these guys guilty of negligence and non-performance of their duties. (admittedly, given the dates just in the sample, we're talking about socking in a couple of federal courts buildings for a long time indeed, perhaps long enough to make actual enforcement of the statute impractical from a budget standpoint).

Set aside your sophistry and check the bold. You're basically admitting the law is a bill of attainder and that you just don't care.

Is it a crime to willfully refuse to register for Selective Service after age 18 and before age 26, yes or no?Yes, but the law here punishes without any determination of whether it is willful or not. That is what makes this law unconstitutional.
If you refused to register when you were eligible, you broke the law, right?
You acknowledge that in the case of the guy who tried to register as soon as he moved back to the US, but the government refused to allow him to do so, or in the case of the guy who, instead of registering, actually entered the armed forces, it would be ridiculous to describe this as a "refusal" to register. Without any act of will, there is no crime.
The process by which it's checked can be unconstitutional
There IS no such "process" under the law in question. The "crime" is presumed, without any possibility of rebuttal. That is what "bill of attainder" means. You describe it as an "unfortunate" consequence that this law punished some non-criminals as if they were criminals; it is more than unfortunate, it is unconstitutional.

Oh, and Cat...

The Omnibus Crime Bill of 1988, which pemits asset seizure without trial in Narcotics cases.

Is this NOT a Bill of Attainder?

It could be. Link or cite to the actual provision at issue and we can discuss it.

But whether it is or not is irrelevant to whether other laws are bills of attainder.

Cat-Tribe, as usual, fails to consider the possibility of time travel.

Yes, but the law here punishes without any determination of whether it is willful or not. That is what makes this law unconstitutional.

You acknowledge that in the case of the guy who tried to register as soon as he moved back to the US, but the government refused to allow him to do so, or in the case of the guy who, instead of registering, actually entered the armed forces, it would be ridiculous to describe this as a "refusal" to register. Without any act of will, there is no crime.

There IS no such "process" under the law in question. The "crime" is presumed, without any possibility of rebuttal. That is what "bill of attainder" means. You describe it as an "unfortunate" consequence that this law punished some non-criminals as if they were criminals; it is more than unfortunate, it is unconstitutional.

other laws that do the same thing (Punish non-criminals who can't afford the appeal process as if they were criminals) are upheld on a pretty constant basis.

As for this law being a bill of attainder- I simply disagree-it isn't, but it can act that way just as property-seizure laws that freeze assets and turn them over to auction before the trial's finished do regularly.

The LAW requires that if you're applying for a Federal Job, and you're Male, and Over the age of eighteen, you registered for Selective Service-the Draft, or you don't get in. This is like registering for your Social Security Card-which you can't get a Federal Job without, except that there's a time-limit on Selective Service registration, and presumably a recent citizen over the age of twenty-six is exempted (Naturalized citizen), since they obviously couldn't register when they would have been eligible had they been native-born Americans.

Social Security is allegedly Voluntary, Selective Service is required, you can't get a Federal Job (as a male born in the U.S.) without both-and no SSN means no job with the Government, not even the Army.

Mind you that I don't care for this law myself-at minimum a person should be eligible to register with Selective Service up to the age of forty-when most people's knees, eyes, and backs start giving out under normal wear (and the top age you can get a waiver to enlist, if I recall correctly), and the law DOES need changing for other reasons, but I believe also that the judge was letting his politics or his preferences make his decision here, but the concept behind it is sound-If you're going to have a Selective Service system, and we do, and it's intended to be fair (which this one was), then it has to be a universal draft-that is, everyone physically and mentally capable of serving needs to be on it, or already in uniform, including people who don't want to take the risk, and the sons of rich people who can't cut it anywhere outside of government-among other things, if you're a healthy twenty-seven year old hoping to work in the White House Staff, you need to be just as at-risk as the twenty-six year old high school graduate who's pounding nails for eleven bucks an hour because his family can't afford college and he's not super-genius enough to get a scholarship, or crook enough to welch out on a student loan.

ANY prerequisite can be turned into a Bill of Attainder if the enforciing agency doesn't implement a system to appeal it.

Just overturning the law in court is the short, expedient way to deal with what looks, from outside the legal profession, like several years (possibly several decades) worth of criminal negligence on the part of OPM and a number of Federal Agencies (that is, hiring people who were, by law, unqualified to serve in their positions) and non-prosecution of violations of the Selective Service Act committed by individuals (not bothering to register as required under the law).

Short form, most of the plaintiffs here should at MINIMUM be facing fines and/or jail-time, just as a tax-evader who isn't Charles Rangel or Tom Daschle would, and a number of Federal managers and personnel people who approved the applications after their 'background checks' should be losing their jobs, or for those now retired, their pensions for it.