The opinion of the court was delivered by: BONSAL
On March 28, 1968, defendant James St. Clair was charged in a three-count Grand Jury indictment with violating the Military Selective Service Act of 1967 (formerly the Universal Military Training and Service Act, as amended), 50 U.S.C. App. § 451 et seq. (the Act). The three counts of the indictment charge that defendant failed and refused (1) to submit to registration, (2) to have his Registration Certificate in his possession at all times, and (3) to complete the questionnaire which had been mailed to him by his Selective Service Local Board.
Defendant moves, pursuant to Rule 12(b)(4), F.R.Crim.P., for a jury hearing on the facts necessary to show that the draft system established under the Act is unnecessary and therefore unconstitutional. Defendant further moves to dismiss the indictment on the grounds that:
1) the Act is unconstitutional in that it subjects defendant to involuntary servitude in violation of his rights under the Thirteenth Amendment;
2) the Act is unconstitutional in that it makes an invidious discrimination on the basis of sex in violation of the defendant's right under the Fifth Amendment to due process of law; and
3) United States participation in the war in Vietnam violates international and domestic law.
MOTION FOR A JURY HEARING
Defendant contends that the evidence he would offer at a jury hearing would establish that the draft is unnecessary since it could be replaced by an allvolunteer military force, and that, being unnecessary, the draft constitutes an unconstitutional infringement upon defendant's personal liberties. In his brief, defendant refers to the testimony of the Assistant Secretary of Defense at hearings in June 1966 before the House Committee on Armed Services. The Assistant Secretary described a study of the draft made by the Department of Defense, in which a major objective was to assess the possibility of meeting military manpower requirements on a voluntary basis. While this study indicated that an all-volunteer army was "theoretically possible," the Assistant Secretary testified that "other changes and techniques do not appear collectively to be able to meet the deficit anticipated under an all-volunteer force." (Committee on Armed Services, House of Representatives, 89th Congress, 2d Session, June 22-24, 28-30, 1966, pp. 9923, 9938-40.) Congress did not establish an all-volunteer force and -
'The power of Congress to classify and conscript manpower for military service is 'beyond question.' Lichter v. United States, supra, 334 U.S. [742,] at 756, 68 S. Ct. [1294,] 1302, 92 L. Ed. 1694 ; Selective Draft Law Cases, supra [245 U.S. 366] . Pursuant to this power, Congress may establish a system of registration for individuals liable for training and service, and may require such individuals within reason to cooperate in the registration system." United States v. O'Brien, 391 U.S. 367, 88 S. Ct. 1673, 20 L. Ed. 2d 672 (May 27, 1968).
The authority of Congress arises from the Constitution, which empowers it "to raise and support Armies * * * to provide and maintain a Navy," (Article I, Section 8, Clauses 12 and 13), and the courts may not review Congress's determination as to how its power shall be exercised. Bertelsen v. Cooney, 213 F 2d 275 (5th Cir.), cert. denied, 348 U.S. 856, 75 S. Ct. 81, 99 L. Ed. 674 (1954); cf. Korte v. United States, 260 F.2d 633 (9th Cir. 1958), cert. denied, 358 U.S. 928, 79 S. Ct. 313, 3 L. Ed. 2d 301 (1959); Clark v. United States, 236 F.2d 13 (9th Cir.), cert. denied, 352 U.S. 882, 77 S. Ct. 101, 1 L. Ed. 2d 80 (1956).
Whether or not there is a better alternative to the draft which might render it unnecessary is a matter for determination by the Congress. This court does not have power to "conclude that there was a better method of providing for the needed national defense than the one chosen by the national legislature * * * [and] to conclude that the availability of this better way rendered unnecessary and therefore unconstitutional, the method chosen by Congress." United States v. Butler, 389 F.2d 172, 176 (6th Cir.), cert. denied, 390 U.S. 1039, 88 S. Ct. 1636, 20 L. Ed. 2d 300 (April 29, 1968).
For these reasons, defendant is not entitled to a jury hearing.
MOTION TO DISMISS THE INDICTMENT
Violation of Thirteenth Amendment (Prohibiting ...