United States District Court, Northern District of Illinois, E.D
October 1, 1969
EDWARD KENNETH SUSKIN, ANTHONY R. MARTIN-TRIGONA, PLAINTIFFS,
RICHARD MILHOUS NIXON, LEWIS B. HERSHEY, JOHN MITCHELL, DEFENDANTS.
The opinion of the court was delivered by: Robson, District Judge.
MEMORANDUM AND ORDER QUASHING SERVICE OF SUMMONS AND DISMISSING
THE COMPLAINT SUA SPONTE
The United States Attorney has filed an amicus curiae
that the summons issued against the President of the United
States be quashed. For the reasons set forth below, this court is
of the opinion that the service of process should be quashed and
the complaint should be dismissed sua sponte.
The plaintiffs seek a judgment by a three-judge court declaring
certain provisions of the draft laws unconstitutional on the
ground these provisions discriminate in favor of women and the
clergy. Named as defendants are the President of the United
States, the Director of the Selective Service System, and the
Attorney General of the United States.
The Military Selective Service Act of 1967 (Act) invests the
President with certain duties, i.e., formulation of details
concerning registration under the Act by male citizens,
determination of the number of persons to be inducted, selection
of members of the National Advisory Committee, modification of
the minimum standards of mental fitness of persons to be inducted
in time of war, activation of reservists in medical, dental or
allied specialties, prescribing regulations for exemption and
deferment from training and service of certain categories of
persons, and appointment of the national Director of the
Selective Service System, as well as state directors.
The foregoing presidential powers and duties under the Act are
executive and discretionary in nature, and are not subject to
interference, injunction, or mandamus by the courts. E.g.,
Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60 (1803);
State of Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 500, 18
L.Ed. 437 (1866); Coates v. United States, 181 F.2d 816, 818, 19
A.L.R.2d 840 (8th Cir. 1950); Trimble v. Johnston, 173 F. Supp. 651
(D.D.C. 1959). Therefore, this court concludes that the
complaint as to the President should be dismissed and the summons
issued against him should be quashed.
Furthermore, where a three-judge court is requested, a single
district judge may determine whether a basis for federal
jurisdiction exists. Stamler v. Willis, 371 F.2d 413
, 414, note
3 (7th Cir. 1966); McManigal v. Simon, 382 F.2d 408
1967). The plaintiffs are attacking induction classifications
established by Congress and administered by the Selective Service
System. These classifications were established pursuant to the
power and duty of Congress to raise and support an army and to
make all laws necessary to that end. U.S. Const. Art. I, § 8, cl.
12. The power of Congress to classify and conscript manpower for
military service has been held by the Supreme Court to be "beyond
question." United States v. O'Brien, 391 U.S. 367
, 377, 88 S.Ct.
1673, 20 L.Ed.2d 672 (1968); Lichter v. United States,
334 U.S. 742
, 755-758, 68 S.Ct. 1294, 92 L.Ed. 1694 (1948). The courts
will not interfere with a legislative or executive classification
unless it is manifestly arbitrary or unreasonable. In re Imperial
Irr. Dist., 38 F. Supp. 770 (S.D.Cal. 1941), aff'd sub nom., Wells
Fargo Bank & Union Trust Co. v. Imperial Irr. Dist., 136 F.2d 539
(9th Cir. 1943), cert. den. 321 U.S. 787
, 64 S.Ct. 784
, 88 L.Ed.
1078 (1944). The classification must rest upon some difference
which bears a reasonable and just relation to the statute in
respect to which the classification is proposed, but such
classification is a legislative and not a judicial function.
United States v. DePugh, 266 F. Supp. 453 (W.D.Mo. 1967), aff'd
393 F.2d 367
(8th Cir. 1968), cert. den. 393 U.S. 832
, 89 S.Ct.
101, 21 L.Ed.2d 102 (1968); Neild, et al. v. District of
Columbia, 71 App.D.C. 306, 110 F.2d 246 (1940). This court finds
that the legislative policy to exclude women and the clergy from
compulsory military service has a rational basis which is
reasonably related to the congressional power to raise and
support an army. Furthermore, any correction of alleged
inequities in the administration of the draft laws, such as those
of classification presented here, is for the consideration and
determination of Congress. United States v. Fallon, 407 F.2d 621
(7th Cir. 1969). For these reasons, this court concludes that the
complaint fails to state a basis for federal question
It is therefore ordered that the summons issued against the
President of the United States be, and it is hereby quashed. It
is further ordered that the cause be, and it is hereby dismissed.
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