Banging on the backdoor draft: the constitutional validity of stop-loss in the military.

• Author: Wooten, Evan M.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND PRINCIPLES A. A Recent Controversy: Hamdi v. Rumsfeld B. A Jurisprudence of Deference C. Political Question Doctrine II. A QUESTION OF POLICY III. CONTRACT A. The Enlistment Contract 1. General Terms of the Enlistment Contract 2. Specific Terms of the Enlistment Contract B. Enlistment Contracts Distinguished 1. The Status Aspect 2. The Role of Law IV. CONSTITUTIONAL AUTHORITY A. Justice Jackson's Concurrence B. Statutory Authority 1. Delegation of the Authority To Extend Enlistment a. Express Congressional Authorization b. Implied Congressional Authorization c. Contrary Indications of Congress's Intent 2. The Nondelegation Argument 3. Justice Douglas's Comment on Construction: The Credibility Gap C. Inherent Executive Authority 1. Intellectual Uncertainty 2. The Commander-in-Chief and Executive War Powers 3. Potential Treatment in the Supreme Court V. CONSTITUTIONAL LIMITATION A. Involuntary Servitude B. Due Process 1. Liberty Interest 2. Mathews Balancing 3. Due Process Limitations on Stop-Loss CONCLUSION INTRODUCTION

On September 14, 2001, in response to the terrorist attacks on the World Trade Center and the Pentagon just three days earlier, President George W. Bush declared a state of "national emergency" by virtue of the continued threat of terrorist attacks against the United States. (1) That same day, the President invoked his power "to suspend certain laws relating to promotion, involuntary retirement, and separation of commissioned officers (2) and delegated that power to the Secretary of Defense. (3) Under this authority, the various military institutions have enacted numerous "stop-loss" policies, by which military personnel are retained in service beyond the terms of their enlistment contracts. In other words, these policies aim to put a stop to the loss of military manpower during times of crisis by extending the service terms of members of the Armed Forces.

No single stop-loss policy exists. Congress actually authorized stop-loss shortly after the Vietnam War, for fear that the departure of combat soldiers would cripple the military. (4) It was not until 1990, however, that this authority was first invoked. In preparation for the Persian Gulf War, President George H.W. Bush authorized then Secretary of Defense Dick Cheney to suspend the retirement or separation of essential military personnel. (5)

The current wave of stop-loss policies began on December 4, 2001, when the U.S. Army announced the first of what would turn out to be many stop-loss orders. (6) As described in the official army press release, the order allowed the Army to retain personnel possessing select skills "on active duty beyond their date of retirement, separation, or release from active duty for an open-ended period." (7) A second stop-loss order--enacted January 2, 2002--brought the Ready Reserve and additional specialized soldiers within the ambit of the first order. (8) In November 2002, the Army expanded stop-loss to include its entire reserve component, comprising the Army National Guard and the Army Reserve. (9) Numerous stop-loss orders have followed, the most significant being the orders of November 13, 2003, (10) and June 1, 2004, (11) which combined to apply stop-loss to all non-reserve soldiers deployed outside the continental United States. The result is that stop-loss currently applies to every soldier of the U.S. Army, as well as members of the Army Reserve components.

The Army is not the only branch of the military to have instituted stop-loss policies, but its policies have been the most pervasive. The Navy instituted stop-loss in January 2003 to retain certain personnel, but rescinded the order in May of the same year. (12) Similarly, the Marine Corps authorized stop-loss for all active and reserve personnel in January 2003, (13) but terminated it just four months later. (14) In addition, the Air Force ordered stop-loss for forty-three officer career fields and fifty-six enlisted specialist career fields in March 2003, (15) but reduced those numbers to twelve and thirty-six, respectively, in May 2003 on the grounds that "[s]top-[l]oss is inconsistent with the fundamental principles of voluntary service." (16)

For purposes of this discussion, the term "stop-loss policy" will encompass all of the aforementioned policies but will refer to none specifically. The generic term will focus on the feature characteristic of all stop-loss policies: the involuntary retention of military servicemen beyond the terms of their enlistment contracts. The policies of the Army are particularly important, however, because of their widespread ramifications. It is estimated that as many as 40,000 soldiers--16,000 of whom are Reservists and National Guardsmen--have already been affected by the stop-loss policies. (17) Fierce debate has arisen within the nation regarding stop-loss, with many opponents--Senators John Kerry and John McCain among them--labeling the policies as a "backdoor draft. "(18) In addition, a number of servicemen have protested involuntary extension, attempting to resist stop-loss by "seeking exemptions, filing lawsuits or simply failing to report for duty." (19) Several of the legal challenges to stop-loss have already reached the federal district courts. (20) Meanwhile, the United States remains committed abroad in massive numbers. (21) The aim of this Note is to analyze the potential challenges to the stop-loss policies that might be raised before a court.

Legal challenges to stop-loss will most likely be of three generic types: first, it can be argued that stop-loss effects a breach of the enlistment contract, for which the federal government must make recompense. Part III will consider the contractual challenge, and, in particular, the peculiar nature of enlistment contracts. Second, the executive and statutory authority on which stop-loss policies are based may be challenged. Part IV will address these challenges separately. Third, stop-loss is subject to constitutional challenge under the Fifth and Thirteenth Amendments. Part V will consider whether stop-loss violates guarantees of due process and the prohibition on involuntary servitude. Before proceeding to an assessment of the various challenges to stop-loss, however, this Note will introduce several background principles that will pervade the subsequent discussions. Part I will address these background principles. In addition, brief attention will be given to a political objection to the policies in Part II before assessing the legal challenges to stop-loss. This Note will ultimately conclude that the challenges to stop-loss are destined to fail, but will suggest that there may soon come a time when due process requires that stop-loss be limited.

1. BACKGROUND PRINCIPLES

   1. A Recent Controversy: Hamdi v. Rumsfeld

      A recent case may be helpful in predicting how the current Supreme Court might react to a stop-loss challenge. The case is Hamdi v. Rumsfeld, (22) decided June 28, 2004. In Hamdi, the Supreme Court considered the legal implications of the detention of a U.S. citizen (Hamdi) deemed an "enemy combatant" by the Executive. The initial inquiry was whether the Executive was authorized to detain citizens classified as enemy combatants. (23) After finding explicit congressional authorization for the detention of enemy combatants, (24) the Court nevertheless held that the safeguards within the detention procedure were inadequate to protect the due process rights of U.S. citizens. (25) In the backdrop of the Court's discussion lurked the terrorist attacks of September 11, a factual predicate of which the Court took overt notice. (26) The opinion, therefore, may be quite instructive on how a challenge to stop-loss would fare before the Supreme Court in the contemporary context. Reliance on Hamdi may not prove entirely sound, as the decisive opinion represents a mere plurality of the Court, (27) although only one justice would have upheld Hamdi's detention. (28) Nevertheless, Hamdi remains the most recent indicator of how the current Court will deal with post-September 11 challenges to executive and military actions.

   2. A Jurisprudence of Deference

      At this point, it is appropriate to take an aside to discuss the expansive deference that the judiciary has historically accorded its sister branches of government in the context of military affairs. Rostker v. Goldberg (29) demonstrates this notion in its language (30) and in its holding. (31) Indeed, in Rostker, the Court maintained that such deference is not merely prudent, but is also constitutionally compelled. (32) Deference in the military context is grounded in the "broad and sweeping" "constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end." (33) Furthermore, deference to Congress and the Executive in military matters is necessary because the judiciary is ill-equipped to competently address such matters. (34) Much of the spirit of this deference can be summed up in Chief Justice Hughes's famous phrase: the power to wage war is the "power to wage war successfully." (35) Because the Congress and the Executive are vested with broad authority in the military arena and because courts are peculiarly inexpert in that arena, deference to the military judgments of Congress and the Executive has become a common practice of U.S. courts.

      Judicial deference is not without its criticism. In particular, the practice has drawn the ire of commentators in regard to the war on terrorism that has arisen since September 11, 2001. (36) Moreover, the practice has at times been questioned by judges, including members of the Supreme Court. As Justice Murphy said in his oft-quoted and vehement dissent to Korematsu v. United States, "it is essential that there be definite limits to military discretion, especially where martial law has not been declared." (37) Korematsu's challenge to the internment of U.S...