For the third post in our series on Marvel’s Civil War event (1, 2), we’re looking at the constitutional validity of the Superhuman Regstration Act (SHRA). This will revisit some topics we’ve already talked about in other contexts.
I. The SHRA and Federalism
One of the biggest questions about the SHRA is whether Congress can do it at all. The Act was clearly and explicitly supposed to be an analog of the Patriot Act, passed in the aftermath of the September 11 attacks and widely viewed as a significant expansion of federal power at the expense of civil rights. Whether or not the Patriot Act is a net positive for society is a pretty good litmus test for one’s political leanings, and the SHRA—had it been planned out in detail—might have been too.
But the SHRA does more than the Patriot Act does, and even (or perhaps especially) when it is deliberately seeking to expand the reach of federal power, Congress must still deal with the Constitution, at least nominally. Whereas the Patriot Act mostly has to do with anti-terrorism intelligence gathering and transportation security, the SHRA targets a rather ill-defined category of American citizen for special treatment. One of the biggest ambiguities is exactly who counts as a “superhuman” under the Act. Mutants fairly clearly do, as do people who can, e.g. fly under their own power, leap tall buildings with a single bound, etc., but why technology-based heroes should need to register at all is never quite explained. Either way, something like the SHRA runs up against the limits of the powers Congress has been granted by Article I.
We talked about a similar fictional federal law—Watchmen’s Keene Act—way back in December. There, we discussed the constitutional validity of a federal act outlawing costumed vigilantes and concluded that while this may represent a rather unusual implementation of the Commerce Power, current jurisprudence suggests that such an act might well be permitted to stand by the Supreme Court. Given that the SHRA was passed in the aftermath of the Stamford disaster (which resulted in the deaths of over 600 civilians including dozens of children), popular opinion was strongly in favor of the SHRA, and the Court has proven reluctant to play the heavy when faced with a Congressional action which could go either way constitutionally but carries strong popular support.
II. The SHRA and Congressional War Powers
But the SHRA has something going for it that neither the real Patriot Act nor the fictional Keene Act do: Congress is explicitly empowered to “raise and support Armies. . . . to provide and maintain a Navy; to make Rules for the Government and Regulation of the land and naval forces,” etc. In other words, Congress has the power to raise armed forces for the national defense, and there is very, very little limit on its powers in this area. Indeed, the Supreme Court ruled unanimously that Congress’s power to raise and support an army gives it the right to link federal educational funding to the presence of military recruiters on university campuses. So if, as is sometimes indicated in the comic books, the SHRA was intended to form a kind of special branch of the federal armed forces, under the auspices of S.H.I.E.L.D. or something else, Congress has a lot of authority here. It certainly has the ability to authorize and fund a superhuman branch of the military.
But does it have the ability to force superhumans to register and work for the government? Maybe. Conscription is never directly addressed by the Constitution, but it has long been held that conscription is part of Congress’s power to raise armies, and the Supreme Court tends to unusually strong statements of congressional power when faced with this particular issue. See, e.g. Lichter v. U.S., 334 U.S. 742 (1948). But while the power of Congress to draft people into the armed services is generally beyond question, the power of Congress to draft specific individuals is something different. For the most part, since World War II the draft has basically applied to all men equally. Prior to World War II there was significant class discrimination, most exemplified by the paid substitute system of the Civil War. But directly targeting specific individuals raises due process implications far beyond the skewed drafts of the 19th and early 20th Centuries. The draft is a pretty huge imposition upon civil rights, and while it is an imposition Congress is permitted to make, the Supreme Court might balk at permitting Congress to go so far as to shed even the pretense of fairness.
We talked about this in a Mailbag post and came to the conclusion that while this is an untested area of law, Congress’s sweeping war powers may permit them to target specific individuals for the draft. Again, the courts are very unwilling to restrict congressional authority where it is explicitly granted, and even though Amendments to the Constitution can and do curtail those powers, as there is no indication that any of the constitutional Amendments were specifically intended to affect the draft, it’s a fair bet that the Supreme Court would find that they do not.
Really though, what we have here is more evidence that the Civil War event could have been a lot better if the staff had simply decided what they wanted the law to do. The SHRA, or at least some form of it that does what the story needs it to do, probably would be constitutional. It is probably within Congress’s power, either the Commerce Power or the war powers, depending on how the authors want to spin that. And as we’ve said before, the story would have been a lot more balanced if the pro-reg side had been able to argue that the law was fair, constitutional, and well implemented. C’est la vie, we suppose.