NEW LOOK CONSTITUTIONALISM: THE COLD WAR CRITIQUE OF MILITARY MANPOWER ADMINISTRATION.

• Author: Kessler, Jeremy K.
• Position: Special Issue: Administrative Constitutionalism

INTRODUCTION 1750 I. A NEW LOOK FOR THE SELECTIVE SERVICE SYSTEM 1752 II. ADMINISTRATIVE LAW REFORM AND THE SELECTIVE 1755 SERVICE SYSTEM III. THE CIVIL LIBERTARIAN CRITIQUE OF MILITARY MANPOWER 1760 ADMINISTRATION A. Witmer v. United States: Heightened Scrutiny of 1761 Selective Service Fact-finding B. Simmons v. United States: Heightened Judicial Scrutiny 1765 of Justice Department Procedures C. Gonzales v. United States: Heightened Judicial Scrutiny 1767 of Selective Service Procedures D. Sicurella v. United States: Heightened Judicial 1760 Scrutiny of Administrative Statutory Interpretation IV. ALTERNATIVES TO ADMINISTRATIVE AUTONOMY: THE 1771 SELECTIVE SERVICE SYSTEM AND THE DEFERMENT LOBBY CONCLUSION 1780 INTRODUCTION

Between 1953 and 1960, the United States' overall military and intelligence-gathering capacities grew enormously, driven by President Eisenhower's "New Look" approach to fighting the Cold War. But the distribution of powers within this New Look national-security state, the shape of its institutional structures, and its sources of legitimacy remained up for grabs. The eventual settlement of these issues would depend on administrative constitutionalism--the process by which the administrative state both shapes and is shaped by constitutional norms, often through ostensibly non-constitutional law and policymaking. (1)

Constitutional concerns about civil liberties, administrative procedure, and the separation of powers ran highest in those branches of the national-security state responsible for regulating civilian and military manpower, such as the Loyalty-Security Program, an inter-agency effort to root out ideologically deviant federal employees, and the Selective Service System, the civilian agency created in 1940 to register, classify, and select millions of young men for compulsory military service. This Article focuses on the Selective Service System, which has received far less attention from legal scholars despite the fact that it exercised authority over a far larger (and arguably more vulnerable) population than did the Loyalty-Security Program. (2) Administrative constitutionalism inflected every stage of the New Look draft's development: from the size and composition of draft calls; to the arguments that draft administrators made when lobbying their congressional patrons; to the competing interpretations of the Selective Service System's organic statute and regulations offered by Justice Department and Selective Service lawyers; to judicial review of these interpretations; to how executive branch lawyers responded to--and sometimes tried to preempt--judicial criticism by modifying the substance and procedure of draft decisionmaking.

By reconstructing the anxious, constitutional dialogue that shaped the administration of military manpower under President Eisenhower's New Look, this Article explores the role that administrative constitutionalism played in the development of the American national-security state, a state that became both more powerful and more legalistic during the pivotal years of the Cold War. (3) The Article also questions the frequent identification of administrative constitutionalism with the relative autonomy and opacity of the federal bureaucracy. The back-and-forth of administrative constitutionalism continually recalibrated the degree of autonomy and opacity that characterized the draft apparatus. This evidence suggests that bureaucratic autonomy and opacity may be more usefully understood as products, rather than preconditions, of administrative constitutionalism.

The remainder of the Article proceeds in four Parts. Part I introduces readers to President Eisenhower's New Look grand strategy, and its relationship to the President's legal, political, and economic commitments on the homefront. Part II looks more closely at the legal and political culture of administrative law reform that blossomed during President Eisenhower's first term, and assesses the threat this culture posed to the Selective Service System. While countervailing Cold War imperatives helped the System avoid new legislative restrictions on its classification and induction authority, the judiciary proved more aggressive.

Part III reconstructs the steady rise of judicial scrutiny of Selective Service decisionmaking over the course of the 1950s. During this period, the federal courts came to identify the administration of civilian and military manpower as a unique threat to civil liberty. Whereas administrative law reformers mounted a wholesale critique of agency governance, the civil libertarian critique of Cold War manpower administration enabled lawyers and judges to target the autonomy and authority of the Selective Service System with more precision. This civil libertarian critique did not only confront draft administrators in the courts. To the contrary, the critique's steady judicial success depended in part on the unwillingness of Justice Department lawyers to counter it. At the heart of Part III, and the Article as a whole, lurks this intra-administrative conflict between Selective Service and Justice Department officials as to the practical importance and constitutional integrity of draft administration.

Part IV traces the Selective Service System's response to these mid-1950s defeats. Having lost the support of both legal professionals and military planners, draft administrators cultivated a new client base by transforming their regulatory agenda. Earlier in the decade, the System had resisted capture by the deferment lobby, the coalition of industrialists, educators, and middle-class families who wanted as much high-quality manpower as possible deferred into the private sector. While the deferment lobby's demands were at odds with the egalitarian vision of veteran draft administrators, the New Look's libertarian legal culture and austere grand strategy had effectively foreclosed that vision. By becoming an agency specializing in deferment, rather than induction, the Selective Service System traded the contentious confines of the courtroom for the sprawling office park and the university quad. This trade gave draft administrators a badly needed infusion of social legitimation and political support. But it also tied the fate of the Selective Service System to the New Look paradigm: should political and military leaders abandon the New Look, and seek to wage another limited war with a conscript army, draft administrators would have to contend not only with the skepticism of the courts and the Justice Department, but also with the anger of a deferment lobby that had come to rely on the Selective Service System's largesse.

1. A NEW LOOK FOR THE SELECTIVE SERVICE SYSTEM

   Dwight D. Eisenhower's 1952 presidential victory put a Republican in the Oval Office for the first time in twenty years. Although the Party had chosen Eisenhower for his reputation as a politically moderate war hero, the former Supreme Allied Commander and early Cold War grand strategist ran on a passionately anti-communist, anti-bureaucratic, and civil-libertarian agenda. Given this rhetoric, Republican hopes were high that a full rollback of New Deal and Fair Deal governance might finally be at hand.

   According to the 1952 Republican platform, the Roosevelt and Truman administrations had "violated our liberties by turning loose upon the country a swarm of arrogant bureaucrats and their agents who meddle intolerably in the lives and occupations of our citizens." (4) For too long, Democratic administrators had "arrogantly deprived our citizens of precious liberties by seizing powers never granted" and "worked unceasingly to achieve their goal of national socialism." (5) During the campaign, Eisenhower declared "his intention to rid Government of the incompetent, dishonest, [and] disloyal." (6) Although electoral politics encouraged this kind of rhetoric, Eisenhower was "skeptical of government-by-administration" and openly "question[ed] the constitutionality of the administrative state." (7) As he warned his close friend, the textile magnate George Sloan, the "drift toward statism" that had characterized the Truman years "must be halted in its tracks." (8) The "individual liberties" of the American people and their "entire system of free government" depended on an administrative counterrevolution. (9)

   Putting his words into action, the new President pursued three policies to shrink the federal bureaucracy and to render it more hospitable to the free market. First, "Eisenhower sought to replace what he called an 'exclusive dependence on Federal bureaucracy' with 'a partnership of state and local communities, private citizens, and the Federal Government, all working together.'" (10)

   Second, Eisenhower sought to reform the inner workings of the federal government by changing the sorts of bureaucrats who ran it. This meant opening the doors of the White House to big business, while closing them to alleged subversives. The President "tightened loyalty standards for federal hiring and retention" and fired suspect employees throughout the Internal Revenue Service and the Justice Department. (11) He then used his appointment power to place businessmen and other admirers of corporate governance throughout his cabinet and at the top of federal agencies and commissions. (12)

   Finally, and most significantly, Eisenhower reined in New Deal and Fair Deal governance by slashing agency budgets. Given the "substantial and immediate budgetary gap for the coming fiscal year," Eisenhower needed little political cover to do so. (13) Defense spending had spiked during the Korean War--from thirteen billion dollars in 1950 to forty billion in 1952--and the annual national-security budget was scheduled to break the sixty billion mark in 1955. (14) Veterans' benefits, debt service, and the costs of running the rest of the administrative state would add another twenty-billion dollars to the annual bill. (15) Although President Truman had...