Just briefly, the Super-Hero Registration Act (SHRA) has a provision allowing the government to draft any registrant. The draft provision appears to be extremely broad in nature.
It is unconstitutional as applied to anyone who was born with their powers.
The remainder of the question, whether you can apply the draft provision to people who don't have inborn powers, is less clear-cut. However, since there's a huge hole in the draft provision once you immunize those with inborn powers, the rest of the draft provision would probably also be thrown out as unworkable and sent back to Congress to fix.
That being said, the registration provision and the draft provision are eminently severable and the registration provision would survive the tossing-out of the draft provision.
Posted by Greg at March 6, 2007 11:01 AM
A few quibbles with your analysis.
First place, not all immutable characteristics are subject to strict scrutiny. Sex-based classifications, for example, have gone from no scrutiny to something called "intermediate scrutiny" to something that is, in practice, pretty much the same as strict scrutiny, but the courts refuse to call it strict scrutiny. And don't even get me started on homosexuality -- the Supreme Court has completely ducked making any sort of decision as to whether it's an immutable characteristic and what level of scrutiny it's subject to.
With respect to superheroic powers, I suspect the courts would likely adopt something like intermediate scrutiny, unless the Marvel Universe U.S. Constitution is different from our own and explicitly mentions people having powers as a protected class in the 14th Amendment or elsewhere. I suspect it doesn't (Exhibit A -- the Sentinel Program).
Second, the three elements of strict scrutiny are:
1) A compelling government interest,
2) A narrowly tailored law designed to serve that interest, and
3) The law is the least restrictive law designed to serve that interest.
The government would clearly win on the first prong of the test, and while I think they probably ought to lose on prongs 2 and 3, it's a close enough call that I can certainly see a court coming down the other way.
Third, I don't know that any law that distinguishes between in-born and acquired powers would survive even a rational basis review (the lowest tier of review, which says "does the government have a rational basis for acting this way.") Practically speaking, what is the reason why you would treat the Beast one way and Spider-Man another? Once you determine whether requiring super-powered individuals to register for the draft is constitutional, I think your answer has to apply to both groups of super-powered individuals.
One interesting legal question you didn't touch on -- who has to register. Spider-Man? Sure. He's obviously got pwoers. What about Captain America? OK, if we assume he's still got the Super-soldier serum in his blood, then I suppose he has powers. What about U.S. Agent? If I'm remembering right, he's just a well-trained guy in a costume. What about the Punisher? What about Shang-Chi, who is just very well trained and runs around in the same clothes all the time?
What about Iron Man, who's got no powers at all, but does have a really sophisticated piece of technology? What about a guy with a gun -- what's the difference between him and Iron Man, other than the sophistication of the technology? What about a guy like Casey Jones from the Teenage Mutant Ninja Turtles or Wild Dog from DC Comics -- these were guys who put on hockey masks, grabbed some sporting equipment, and started dishing out vigilante justice. Do guys like them have to register?
What about Doctor Strange -- he's just a guy who studied a particular set of laws about the universe and knows how to apply them very well. Does he have to register? If he does, what if he takes a new apprentice. At what point does the apprentice have to register? When he signs on with Doc? When he learns his first spell, even if it's something inconsequential like making a feather float? When he learns his first "dangerous" spell, however you define that?
If that logic held, the current draft law, which excludes women from the draft, would be facially unconstitutional. Since it's never been held to be so on those grounds, the courts are unlikely to follow this logical train where you want it to go.
Well, I've wondered why mutants wouldn't try to challenge the registration part -- all mutants have powers, so all mutants must register with the federal government. In essence, that would mean a whole race of Americans would be closely and specially monitored by the government, which would seem to throw a wrench in the registration provision's validity.
That being said, there are less than 200 mutants in the world now, and the government detains more people than that in Gitmo. And mutants don't exactly seem the litigious type, anyway. (Does anyone remember any discrimination lawsuits in the mutant titles?)
Oh, one other thing: I seem to remember proposals being floated for skillset-target drafts over here in the real world, targeted at various engineering, scientific, or linguistic skills as might be needed in a national emergency. I suspect that none of those would fail this kind of constitutional test, nor would even if we had solid proof of a genetic basis for aptitudes in those skills. (Me, I think that all drafts ought to fail an 13th Amendment challenge, but the courts have never been near that conclusion and likely never will.)
I don't think a draft targeted to the skill of "can shoot energy blasts from your hands" would be signficantly different from those proposals...
Jason:
Tom Brevoort, in the Newsarama threads, says that the law covers everybody who the typical citizen would consider to be a superhero (he meant superhero or supervillain). So that means powers, tech, and putting-on-a-costume. (Valid line of attack on overbreadth and lack of clear guidance of who's covered and who's not.)
Non-reproductive sex-based classifications are pretty close to strict scrutiny, as you say; as I recall, a couple of terms ago, the Supremes upheld an adverse-job-action suit against a policy that kept fertile-age women out of lucrative jobs that involved potential exposure to teratogen.
In the special case of people who were born with their powers, I don't think you can apply intermediate scrutiny; maybe you can with other people, but the rationale of strict scrutiny is aimed at immutable and unchosen conditions.
I absolutely agree that the government can trivially demonstrate a compelling interest, but there is no way that the draft program is either narrowly tailored or least restrictive. E.g., the dangerous use of powers that is at the heart of the government's interest are already restrained by the existing laws that control violent crime and negligence, and the government has made no showing that a volunteer staff of supers is inadequate to police supers.
There's more room to argue in favor of the registration program, of course.
You're probably right on the rational basis review regarding the difference between in-born and acquired.
If actual logic was used in these stories, there would be no issue. All the super heroes and villains would have been eliminated ages ago. Mixing real world logic into worlds where magic works and there are beings that can destroy suns real doesn't work. Every few years someone tries it with varying degrees of success. the Authority and Supreme Power probably did it best.
It is sad that the writers currently portraying these heroes don't really seem to believe in heroes. It is rather
Kafkaesque come to think of it.
Also, those born with powers can lose them (see, for instance, Forge's mutant-nullifier gun, the whole DeciMation thing, Spider-Man's various powerless phases), so immutability is a bit iffier.
DVD: I believe that the court would still regard in-born power as immutable even given the existence of nullifiers, or even a Leech-based cure (as in X3), for the reason that such things are impositions, may be risky, impair bodily autonomy, and the like. E.g. the gummint can't justify a law that disadvantages brunettes by pointing out that brunettes can dye their hair.
Yeah, strict scrutiny, right. Uh, Greg, the Supeme Court isn't always our frined on these things:
Arver v. United States, 245 U.S. 366 (1918)
Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856)
Plessy v. Ferguson, 163 U.S. 537 (1896)
Bowers v. Hardwick, 478 U.S. 186 (1986)
Bush v. Gore, 531 U.S. 98 (2000)
and my personal favorite (drumroll please)...
Korematsu v. United States, 323 U.S. 214 (1944)
which has the added advantage of still being good law.
It's quite simple: The case of Maggott vs. The United States of America hasn't made it to the Supreme Court yet, so the law hasn't been overturned.
Annotations for the non-law nerd: Arver is a WWI draft case, upholding the draft, still valid law (see also Rostker v. Goldberg, which applies a fact-dependent analysis that does not apply today). Dred Scott was a pre-Civil War case establishing that blacks could not be citizens, overturned by the 14th Amendment. Plessy v. Ferguson upheld "separate-but-equal" accomodations for blacks and whites, overturned by Brown v. Board of Education. Bowers established that states could criminalize homosexual sex, overturned by Lawrence v. Texas. Korematsu upheld the internment of Japanese citizens. It's technically still good law, but neither the real world U.S. nor Earth-616 are near a situation sufficient to trigger it; i.e., it'll take a real World War to legitimize a Korematsu-like action.
Yes, Greg, nobody who cared could have looked those up.
Jason, I invite anyone who wants to try to makeDr. Strange do anything, to try.