Yes. Congress has the power to institute a draft, and that authority is about as well-settled as constitutional questions get. It rests on Article I of the Constitution, was unanimously upheld by the Supreme Court in 1918, and is kept ready for use by a federal statute that has been on the books since 1948. No one has been drafted since 1973, but the legal machinery to start again has never been dismantled.
Where the Power Comes From
Article I, Section 8 of the Constitution gives Congress the authority to “raise and support Armies” and to “provide and maintain a Navy.”1Congress.gov. Overview of the Army Clause The framers wrote that language broadly on purpose. They wanted Congress to have wide discretion over how to build a military, and they added a two-year limit on army funding so elected representatives would have to keep revisiting the question.
The word “draft” is not in the Constitution. It doesn’t need to be. Article I, Section 8, Clause 18, the Necessary and Proper Clause, authorizes Congress “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”2Congress.gov. Article I Section 8 Clause 18 Courts have read these provisions together for more than a century: if Congress can raise armies, it can compel citizens to fill them. The Supreme Court has called the conscription power “beyond question.”3Legal Information Institute. U.S. Constitution Annotated – Conscription
What the Supreme Court Has Said
The constitutional challenge to conscription was resolved in 1918 in the Selective Draft Law Cases, also known as Arver v. United States. Congress had passed the Selective Service Act of 1917 to raise troops for World War I, and the challengers argued that forcing anyone into military service was involuntary servitude under the Thirteenth Amendment. A unanimous Supreme Court rejected that reading, holding that compelled military service “is neither repugnant to a free government nor in conflict with the constitutional guaranties of individual liberty.”4Justia U.S. Supreme Court Center. Selective Draft Law Cases, 245 U.S. 366 (1918) The Court treated the duty to serve in national defense as a basic obligation of citizenship, not a violation of personal freedom.
Arver has never been overturned. Every draft-related statute since traces its constitutional footing to that decision. In United States v. O’Brien (1968), the Court referred to the conscription power as settled rather than open.3Legal Information Institute. U.S. Constitution Annotated – Conscription A modern challenge on Thirteenth Amendment grounds would run directly into a unanimous, century-old precedent that no later Court has questioned.
The Statute That Keeps the Power Ready
Congress put its authority into working form through the Military Selective Service Act, enacted on June 24, 1948.5Selective Service System. Military Selective Service Act The Act creates the Selective Service System as an independent federal agency and sets out the framework for registration, a lottery, deferments, and penalties for noncompliance.
What the Act does not do, by itself, is authorize inductions. It keeps the system operational without turning it on. Induction authority expired in 1973, and the military has been an all-volunteer force ever since.6Selective Service System. History and Records Registration was suspended for several years, then resumed in 1980 by presidential proclamation, and has continued that way. The engine is connected and idling. Congress has to turn the key.
What Congress Would Have to Do to Start a Draft
A president cannot restart the draft alone. Congress would first need to amend the Military Selective Service Act to authorize inductions, and the president would need to sign that legislation.7Selective Service System. Return to the Draft Only after that would the Selective Service System begin calling people up.
Once authorized, the sequence the agency plans to follow is roughly this. The Selective Service activates, opening area offices and calling board members in for training. A lottery draws birthdays at random and assigns sequence numbers. Twenty-year-olds are called first, then registrants aged 21 through 25, then 19-year-olds, and finally those who are at least 18 and a half. Induction notices go out; registrants report to a Military Entrance Processing Station for evaluation; local and appeal boards handle claims for deferment, exemption, or conscientious objector status. Under current planning, the first inductees must reach the military within 193 days of the triggering event.7Selective Service System. Return to the Draft
The constitutional authority to run all of this belongs to Congress. The president has no independent power to conscript, and the Selective Service System has no power to induct anyone until Congress acts.
Limits Built Into the Power
Congress’s authority to draft is broad, but the statute itself carves out categories of people who would not be inducted or would be delayed. These limits come from Congress, not from a constitutional restriction on the draft power.
Conscientious objector status is available to anyone whose sincere and deeply held moral, ethical, or religious beliefs prevent participation in war. The beliefs do not have to be religious, but they must oppose all wars rather than a specific conflict. Objectors who oppose any form of military service are assigned to civilian alternative service; those who can serve but not carry weapons go into noncombatant military roles such as medical positions.8Selective Service System. Conscientious Objectors
Ordained ministers and people regularly serving as ministers of religion are fully exempt from induction. Full-time students at recognized theological or divinity schools receive a deferment, meaning induction is postponed until their studies end.9Office of the Law Revision Counsel. 50 USC 3806 – Deferments and Exemptions From Training and Service
A registrant whose induction would cause extreme hardship to a dependent spouse, child, parent, grandparent, or sibling can receive a Class 3-A deferment lasting up to one year, renewable if circumstances have not changed.10eCFR. 32 CFR 1630.30 – Class 3-A Registrant Deferred Because of Hardship to Dependents A surviving-son or surviving-brother exemption applies when a family member has died, or gone missing or been captured, as a result of military service, but that protection is available only during peacetime; a declaration of war or national emergency removes it. The president can also defer people whose work is essential to national health, safety, or public interest, granted case by case rather than by profession.9Office of the Law Revision Counsel. 50 USC 3806 – Deferments and Exemptions From Training and Service
The Open Question: Who Congress Can Require to Register
Congress’s power to draft is settled. Who Congress can require to sign up for a draft is not. Since 1948, only men have been required to register. The Supreme Court upheld that limitation in Rostker v. Goldberg (1981), reasoning that because women were excluded from combat, men and women were “not similarly situated for purposes of a draft.”11Justia U.S. Supreme Court Center. Rostker v. Goldberg, 453 U.S. 57 (1981) The Court gave heavy deference to Congress on military judgments.
The premise of that ruling changed in 2015, when the Pentagon opened all combat roles to women. A federal district court in Texas held in 2019 that the male-only registration requirement was unconstitutional in light of that change. When the case reached the Supreme Court in 2021, the justices declined to hear it, noting that Congress was actively studying the question through the National Commission on Military, National, and Public Service. That commission’s 2020 final report recommended eliminating the male-only rule.12Legal Information Institute. National Coalition for Men v. Selective Service System
Congress has not moved. The FY2025 National Defense Authorization Act considered both automatic registration and expanding registration to women; the enacted version included neither.13Congress.gov. FY2025 NDAA – Selective Service Registration Proposals The male-only requirement stands for now. If the question returns to the Supreme Court without congressional action, the combat-exclusion rationale that carried Rostker will not be available to defend it.