Marvel Civil War III: The SHRA and the Constitution

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.

III. Conclusion

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.

52 Responses to Marvel Civil War III: The SHRA and the Constitution

  1. You talk of conscription and how it falls under Congress’s power to raise armies but how would this apply to foreign superheroes such as Wolverine and Spider-Woman who operate within the US? Presumeably it could not apply to them?

    • It would be within Congress’s power to apply it to them. The Selective Service currently applies to permanent resident aliens, special (seasonal) agricultural workers, refugee, parolee, and asylee aliens, undocumented (illegal) aliens, and dual national U.S. citizens. I suspect Wolverine is a permanent resident at this point (or possibly an undocumented alien, given how difficult it would be for him to produce appropriate documentation). There is presently an exemption for lawful non-immigrants on visas (among other exemptions), but I believe the government could, in theory, make a willingness to be drafted a condition of entering the country, although treaty obligations would probably forbid the drafting of diplomats.

      • How would it be difficult for Wolverine to produce acceptable documentation?

        Consider: he’s been a commissioned officer in the Canadian Forces, currently either on reserve or retired status, and he has connections in multiple nations’ intelligence services both above and under the table. If he can’t produce legit documentation upon request, I’ll eat whatever hat you ask me to.

      • I’ll admit I’m not up on what documentation must be produced for immigration, but I imagine at some point a birth certificate or equivalent is required. Wolverine might have some trouble with that.

  2. Of course, even if it were found constitutional for conscription to be based on the possession of superpowers, which is a so far untested extension of the power of conscription, and for it to extend to female superhumans as well (no reason it shouldn’t, I guess, pursuant to a new law), there would still be two big questions – can it allow the drafting of minors (since a bunch of the Initiative kids were supposed to be shy of 18), and what kinds of penalties can be set for refusing to register and then show up for service when drafted?

    • Drafting minors is not a problem. It would be if the United States were a signatory to the Rome Statute of the International Criminal Court, but it is not.

      “In virtue of its power to raise and support armies, to provide and maintain a navy and to make rules for the government of land and naval forces, the Congress may require military service of adults and minors alike. The power of the United States may be exerted to supersede parents’ control and their right to have the services of minor sons who are wanted and fit for military service. And the Congress may confer upon minors the privilege of serving in land or naval forces, authorize them to enlist, or draft them upon such terms as it may deem expedient and just.” United States v. Williams, 302 US 46, 48 (1937).

      The penalties would likely be the same as exist now: fines and jail time.

      • Looking up US v. Williams, that’s still with the consent of the parents (although the case established that such consent couldn’t be conditioned) and from age 14 on up, although that’s by statute rather than constitutional limitation in both cases, so could conceivably be changed for teen superheroes under the SHRA. And since I don’t recall seeing any parents trying to retrieve their kids from the Initiative or any characters who seem like they’re 13 or younger, probably moot anyway.

        As for the penalties, though, apart from the penalties themselves, there’s the issue of due process in applying them. Draft dodgers and deserters get trials (albeit military ones for the latter) before having fines or jail time assessed, and I don’t think we saw anybody actually get to trial in Civil War, even Cap or Speedball.

      • And actually, turns out this is not correct since 2002, when the US ratified the UN Optional protocol on the involvement of children in armed conflict, which provides for no conscription below the age of 18.

      • That’s a good point, but I’m not sure there’s much teeth to it. Here are a few key notes from the US’s declarations & understandings regarding the Protocol:

        “The United States understands that the United States assumes no obligations under the Convention on the Rights of the Child by becoming a party to the Protocol. …
        The United States understands that nothing in the Protocol establishes a basis for jurisdiction by any international tribunal, including the International Criminal Court.”

        And from the Protocol itself:

        “Any State Party may denounce the present Protocol at any time by written notification to the Secretary- General of the United Nations, who shall thereafter inform the other States Parties to the Convention and all States that have signed the Convention. The denunciation shall take effect one year after the date of receipt of the notification by the Secretary-General.”

        Further, the rule in the US is that federal statutes and treaties are of equal force, but when they conflict the one last-in-time controls. So the SHRA could simply overrule the Protocol, and since the US is not subject to the jurisdiction of any international tribunal under the Protocol, nobody could do anything about it (outside the US political process, of course).

      • Of course, the drafting minors thing is only okay if the SHRA specifically changes existing US law on the matter (which starts conscription at 18 and bans 17 year old volunteers who need parental consent from direct combat duty till they turn 18), but since Marvel never bothered to write even the Cliff’s Notes version of the law, there’s no telling if that was covered in the law. Shoot, you had one of the most well-known lawyers in the MU, She-Hulk, advocating for its passage on the basis that there was no draft component, and then being blindsided when she got drafted after it passed, so it’s not clear that anybody within the Marvel Universe got to read it either.

  3. Exactly how legal was Norman Osborn’s cabal-type organization in his time as the ‘Iron Patriot’? The entire thing fell apart at the end which might make it a moot point but considering that it included several dangerous criminals (especially Dr. Doom) could Osborn be charged with treason?

    • Not sure how many of them were actually wanted criminals on US soil, apart from the Hood (Doom may still have had diplomatic immunity, status of Loki, Namor unclear, White Queen presumably not wanted), or whether the specific things talked about – again, except with the active criminal ringleader Parker Robbins – could even be considered conspiracy, let alone treason. On the other hand, Osborn did enough stuff that was directly and obviously criminal – shooting down civilian jet liners, blowing up suburban housing developments, taking homeless people off the streets and vivisecting them – during his tenure, even before engineering the deaths of many thousands at Soldier Field, that the Cabal stuff is hardly worth worrying about.

  4. “For the most part, since World War II the draft has basically applied to all men equally. ”

    Not exactly a superhero issue, but will the modern government be allowed to discriminate against men (or women – depending on your point of view) in drafts?

  5. Martin Phipps

    Are there any limits as to what the government can force you to do once you are drafted? Can a soldier refuse to follow orders that would be considered a violation of his human dignity? I’m thinking of the whole “comfort women” issue from WWII: the Japanese were essentially drafting foreign women to “serve” (in) the armed forces. I can’t think of a good American example except the obvious case of conscientious objectors refusing to kill the enemy.

    For that matter, can you extend this argument to cover the drafting of criminals like Marvel’s Freedom Force, DC’s Suicide Squad or La Femme Nikita from movies and TV. On one hand, forcing someone to work for the government is obviously a violation of civil rights and may even be considered cruel and unusual punishment. On the other hand, you do give up a lot of your inherent rights when you are convicted of a crime and if the drafting of criminals were covered under the war measures act then all the above may actually be constitutional.

    Martin

    • Soldiers (or at least men and women serving in the U.S armed forces) are expected to follow the laws of the U.S, regulations of the relevant branch of the military, and international agreements on how soldiers can conduct themselves in wars. Obviously there are many grey areas like the legitimacy of sending soldiers into another nation (without that nation’s consent) to kill a terrorist leader where it’s unclear, but no they could not legally order torture, the murder of a civilian or prostitution. Whether or not a soldier would follow an illegal order is another matter of course.

      On another note, though I haven’t made a special study of Japanese war crimes, I’m fairly sure that the Japanese didn’t draft Korean and Chinese women to actually serve in the military in any sense of the word. They forced the women to serve as sex slaves, a rather different matter. Simply put, the women were not part of the Japanese military.

    • It seems to me that in most cases where a criminal is “recruited” to work for a government, it’s usually phrased as a choice: “We have enough evidence to lock you up until just about the end of time. Of course, if you help us out, we might be able to make that… go away.”

      • And it’s certainly a real thing that happens now, too, to regular people. When I served in the Canadian Forces in Europe back in 1984-86, I worked with a master corporal who’d been a biker (well, still was, in his off hours), arrested for aggravated assault after a bar fight, and whose lawyer offered to have him enter the military rather than serve the five years they’d given him. Obviously, he’d taken plan B. I knew a couple of others over my time in, too, who’d been given the strong suggestion by a judge that it might be smarter to enlist rather than take the time he would be giving them. I assume it was worked out through some form of plea bargain? IANAL, despite my mother’s best hopes. :)

        He had the most awesome moustache, completely irrelevantly.

        Love the blog. :)

  6. I would think some of this is closer to weapons registration than conscription. That way it would cover minors, gadgeteers, etc.

    • That would both equate a human life with a weapon and also equate registering a weapon with making it compulsory* to perform dangerous, violent tasks for the U.S government.

      *Based on at least some depictions of the very vague law.

      • Given the whole “well regulated militia” thing, equating registering a weapon to volunteering for dangerous violent tasks might actually have a constitutional argument in its favor on reflection. Though given the logical downsides of trying to piss off people who by definition are armed (many demonstrated by Civil War in fact) that’s kind of a stupid idea in general even if you can talk the courts into it.

    • The problem with the registration component being compulsory, even if staying outside the Initiative if you promise not to use your powers is an option (not that they were ever consistent on this point), is why should you not be allowed to use your powers for otherwise lawful and private purposes? E.g., why can’t you fly to work or for fun, so long as you stay out of the way of aircraft and follow any applicable FAA regs, or go scuba diving without equipment if you can breathe underwater, or use your superstrength in construction, and so on? Further, lots of powers are not of a kind that can really be ‘turned off’ – invulnerability, regeneration, super-senses – or that can be easily defined and detected in use – like super-intelligence or luck powers.

      And even if private use is allowed, the very concept of registration implies the possibility that the government can reject your application, which in the case of inherent or innate superpowers means what, exactly? Taking away the powers, no matter how invasive the procedure needed, up to and including things like cutting off wings? If that’s not possible, killing you?

      There’s an essential difference between having a registration and licensure requirement for an external object like a car or a gun that you have a choice about whether or not to own (even if it’s highly inconvenient not to have a car in some locales), and having to register and license yourself based on innate characteristics. For the latter, the closest equivalent we have is Selective Service Registration for everybody who’s 18 and male, with no theoretical problem with extending that to require that you list any special abilities and to cover women and younger residents as well, I suppose, but there’s no licensure aspect to that – the State can’t deny you the right to turn 18 and continue to live.

  7. Correct me if I’m wrong but weren’t there plenty of supers that didn’t want to join and that weren’t forced to. I thought they had to pass some examinations to get onto a superhero squad which wasn’t necessarily a mandatory service. As I understand it that either had the choice of not using their powers or signing up, if that’s the case conscription doesn’t seem to be an issue.

    Also on the issue gadgeteers and weapons registration wouldn’t heroes using high tech equipment (like Iron Man) already be required to register their tools anyway? It seems like having a suit that flies around and shoots rockets is probably already illegal.

    • Ryan Davidson

      Actually, registration was generally portrayed as compulsory, regardless of whether or not a given character had any intention of using their powers. If a superhero’s private identity was not widely known, it was possible that they might be able to just stop using their powers and evade registration as a matter of fact, but as a matter of law they would still be required to register.

      Also, gun owners don’t generally have to register their weapons, and to the extent that they do, that is a matter of state and local law. There is no general federal registry of weapons owners, and most states don’t have one either. It’s true that the Iron Man armor probably violates a number of gun control provisions, but that’s because of the nature of the weaponry, not the fact that it wasn’t registered.

      • Registration was compulsory, but I wasn’t under the impression that service with a SHIELD organized super hero team was. My point was that someone might still have to register as someone having superpowers but that does not necessitate “service” as we have been discussing.

        Also most states don’t require registration of a weapon but there are regulations in all states against missiles, RPGs, heavy weapons and things like bazookas and what basically amounts to a flying tank that you wear all the time I’m pretty sure is going to constitute a weapon that is no legal to own regardless of the “open carry” law of the state.

      • Ryan Davidson

        Again, whether or not participation in what turned into The Initiative was compulsory was not really worked out all that well. Sometimes characters act as if they can register and then go home. Other characters act as if registration inherently entails signing up with law enforcement. Editorial guidance on this point would have helped considerably.

      • I suppose that would have depended on the nature of the powers. Perhaps mutants whose mutations were purely aesthetic would simply be asked to go home. Other mutants would need training. It would make more sense to bring 50 mutant telepaths to one location for training than to have one mutant telepath in every state. There have been enough mutants throwing around pheramones that they could also have a class for that. Whether or not mutants get relocated to join one of the Avengers Initiative teams may depend on just how powerful you are: I don’t think you get to call yourself an Avenger just because you emit a strong odor.

        When the Civil War storyline was playing out in the comics, there was some discussion on the net as to how ordinary people could defy what they consider to be an unjust law. If I were to put on a costume and call myself “Captain Amazing” would I get arrested and be told I had to register or would I have to disply some sort of powers? What about people with or without a costume but no powers lining up to register and calling themselves “Captain Dickhead” or “Colonel Screwyou” just to mess with the system and create extra paperwork? The law probably wouldn’t have included any sort of penalty for people who would do this because surely they would just be exercising their right to protest.

    • “Registration was compulsory, but I wasn’t under the impression that service with a SHIELD organized super hero team was. My point was that someone might still have to register as someone having superpowers but that does not necessitate “service” as we have been discussing.”

      They were very inconsistent in this, but She-Hulk was indeed drafted into SHIELD service, to the extent that she got home one day to find that they were packing up her apartment and had given notice for her at her law firm, and plenty of the kids in the Initiative book appear to have been drafted. Whether you could register and not serve, and whether this required that you then not use your powers, and what that meant for ‘always-on’ kinds of powers, was never really nailed down.

      “Also most states don’t require registration of a weapon but there are regulations in all states against missiles, RPGs, heavy weapons and things like bazookas and what basically amounts to a flying tank that you wear all the time I’m pretty sure is going to constitute a weapon that is no legal to own regardless of the “open carry” law of the state.”

      That’s fine as long as you’re actually talking about external weapons systems, including things like powered armor. However, if a person’s body is innately the equivalent of these types of weapons and armor, what would it mean to say that these capabilities are ‘not legal to own’? Does that mean the person can’t come into the state, or the country? That they have to submit to all sorts of attempts to remove the powers? That they can be killed or permanently imprisoned until/unless the powers are removed.

      Requiring superhumans to register their powers might well be legal, especially as an extension of existing Selective Service law, but requiring a license to have superpowers runs into all sorts of problems, not least of which is that it’s tantamount to requiring a license to live.

      • On point 1, I agree the editors of the story really showed a lot of inconsistencies.

        On point 2, that is what I was talking about though. Heroes like Iron Man have no innate super powers in this universe. So my point was that registration for Iron Man and gadgeteers should’ve been treated like a moot point because Iron Man would already have had to do some sort of registration with his tank suit.

  8. Melanie Koleini

    Under SHRA, did mutants without superpowers (or without useful powers) have to register? I’m thinking about mutants that just look funny but don’t have supper strength or anything like it. I didn’t read the Civil War comics, so this may have been addressed.

    If the ‘funny looking’ mutants did or did not have to register, what legal issues does that bring up? If a mutant has to register just because they are covered with purple spots, how is it not discriminatory because all the non-mutants don’t have to register? Or is discrimination constitutional in this context? If the ‘funny looking’ mutants don’t have to register, how would they verify it without registering? Seems like a catch 22.

    • Ryan Davidson

      I don’t believe that the Marvel mutant community includes anyone whose powers are purely aesthetic, i.e. some mutants’ powers may change their appearance, but they all seem to enable them to do something in addition. So while, e.g, Mystique’s powers definitely change her appearance, she can control that at will, and Leech’s powers permit him to interfere with others’ powers. I’m not aware of any character whose mutation is limited to making them funny looking.

      • Grant Morrison’s run on the X-Men had purely asthetic mutants. Then there was this one New Mutants comic from 1986 that had a mutant whose power was to carve lifelike scultures out of stone. There have even been a few mutants (Purple Girl, Empath, etc.) whose ability was to seduce members of the opposite sex using pheromones. (Northstar was immune to Purple Girl’s powedr, presumably because he was gay. I’m serious.) There have been quite a few mutants whose powers aren’t useful in combat, although they might be used, say, as a means of getting information from prisoners (assuming telepathy didn’t work). Let me then rephrase the question I asked earlier: given that making somebody use their powers to help the U.S. government may involve asking recruits to do things you would not normally ask a soldier to do, does this imply that there is no limit as to what the SHRA enables the government to ask recruits to do or could recruits refuse to take certain jobs that they considered morally beneath them? There was a series Avengers: The Initiative that may have dealt with this qwuestion but I never read it.

      • Ryan Davidson

        You’ve misconstrued my use of the word “aesthetic”. Just because an ability is not particularly useful in combat doesn’t mean it isn’t still an ability. What I meant was someone whose mutation is that their skin is green and that’s it. The guy who can carve statues? Carving stone is actually pretty damn useful, and with a little ingenuity could theoretically be used in combat. Manipulating stone? Yeah, you can do stuff with that. And super-normal pheromones certainly count as an ability. So all those people would clearly need to register.

        There is no constitutional limit as to what the government can require of its conscripts, though Congress has created some limits via statute, especially conscientious objector status. Basically, if you can come up with some legitimate religious reason for not doing a particular thing, the government will let you do something else instead. But arguing that a given action is “beneath one’s dignity” would likely be viewed as a glorified way of saying “I don’t wanna.” Conscripts aren’t allowed to say that.

      • Beak. He looked like a chicken.

  9. John McSorley

    Hi – how would the whole registration thing cope with a few other issues?

    1) People unaware they have super powers, either stupidly (gee you mean some people cant pick up cars – are they disabled?) or as they have not yet manifested? What sort of time period would be allowed to check?
    2) A lot of folks claim now to do things that are super – tell the future using cards, read minds contact the dead etc. Assuming these people are frauds but that they have deluded themselves how would they be treated under the act? If someone was registered as able to do things and was conscripted to do them what would happen if they failed – would they be punished (under the relevant military rules for failure to perform a reasonable order thought reasonably thought to be within there ability) or just thrown in a loony bin?
    3) What about foriegn nationals visiting? Would superpowered people need special visas perhaps? Would requiring this be seen as extending us law overseas by violating a right to privacy perhaps?

    • Ryan Davidson

      1) Registration would presumably not be required until powers were known. Whether or not there would be a time period in which one could register was not worked out, and again, one of the main points of ambiguity in the event.

      2) This was briefly discussed, and a number of “civilians” attempted to register for the benefits. S.H.I.E.L.D. was pretty matter-of-fact about wanting demonstrations of power from people they didn’t already suspect of having them.

      3) The registration requirement seems to have been linked more to registry than nationality, i.e. anyone living in the US would need to register, but no one not living here would, even if they visited from time to time.

  10. I think if you take congress’s conscription powers along with the military’s history of policies like stop loss (in which soldiers are prevented from leaving service even after their contracted term has expired) it seems distinctly possible to me that a court would find SHRA within congress’s conscription power.

    • Ryan Davidson

      “Stop loss” isn’t technically conscription. It’s part of the enlistment contract all recruits execute. By federal statute, enlistment periods may be extended unilaterally by the President if he thinks it necessary. Wikipedia has a good description of the procedure.

      Remember folks: when you volunteer for military service, you’re really volunteering for as long a time as the military wants you, not some predetermined date. It’s right there in the contract.

  11. The simple way to do it is an open draft, but have the entry requirements for shield be metahuman. Current drafting laws allow people to wash out or disqualify for medical reasons. Just have the requirements be so high for the new armed force that ONLY metahumans qualify.

    • Ryan Davidson

      A clever thought, but not likely to work. The courts aren’t stupid, and transparent dodges like the one you describe to achieve otherwise prohibited ends are something they routinely pick up on. Just as Southern states couldn’t use poll taxes or literacy requirements as proxies for discriminating against black people, if Congress isn’t otherwise allowed to target superhumans for the draft, using clever medical criteria instead of explicitly targeting them isn’t going to be allowed either.

      • Martin Phipps

        What if you placed a want ad in a newspaper and listed as a requirement “You must be able fly under your own power”. Would this be considered discriminatory? What if the job description actually requires you to be able to fly?

      • The draft is different than either voting rights or imprisonment for a criminal act, though. They can certainly test you in various ways and reject your service for various reasons such as a low score on an IQ test or a medical issue or disability, so having superpowers be the qualification for a certain branch is probably fine. What’s less clear is whether having a law that drafts *only* superhumans but leaves service (in whatever branch) voluntary for everybody else would be discriminatory, especially for those like mutants for whom the powers are inborn, innate traits like race or gender. But it still might pass muster, considering courts have ruled so far it’s okay to have conscription for men but not women, and there’s far less basis to say that men are any more valuable and essential to our military forces than women, than there would be to say that superhumans would be effective out of proportion to their numbers.

  12. Well I think we can all agree that it’s hard to make a final decision on Constitutionality without actually having a law to refer to. As far as conscription goes, Congress can probably conscript individuals but there might need to be related action – for example, there might need to be an actual, ongoing draft. It is harder to say “we are going to pass a law to draft Bob Smith” is consitutional than it is to say “we are going to draft 500,000 people, and we will first draft everybody on List A (superhuman) before List B (everyone else of regular health)” just as they could decide to draft everybody with a high school education before people who don’t – although I’d think even drafting a specific individual might be legal. Let’s say Albert Einstein really wanted Oppenheimer on the Manhattan Project, but Oppenheimer refused – if FDR and Congress ordered Oppenheimer drafted and then assigned to the Manhattan Project, that might well be legal – with the caveat that Oppenheimer would probably be forced to pass basic training and get a uniform and whatnot (which, admittedly, does seem to be part of the SHRA). So there’s no reason to think Peter Parker couldn’t be drafted into service.

    What probably ISN’T legal is the penalties for failure to registeror obey the law – getting locked in another dimension is undoubtedly “cruel and inhuman” punishment, particularly if there is no trial! These people have rights. There might be some superpowered individuals where such a method might be required, but probably a special showing of necessity by the prosecution would be required during the sentencing phase (“We have proved the defendant can pass through any regular matter, therefore we must sentence her to Dimension X prison.”)

    In essence I’d say the basic law to require registration probably would be constitutional but the enforcement (and the law if it required such penalties) almost certainly was horribly unconstitutional.

    A few other notes: Iron Man probably has some sort of waiver because Stark Industries is a defense contractor, and they have to be able (within limits) to develop new experimental weapons that could then be marketed to the government. I mean, if Browning Arms designed and tested a new gatling gun they wanted to sell for A-10 aircraft, they ought to be able to do so. (I could well be wrong, though, not knowing the precise laws involved.)

    • Ryan Davidson

      The testing of unusual military hardware probably doesn’t require much government oversight at all. Anyone who wants to can try to invent more effective ways of killing people. There are restrictions on the possession of nuclear materials, but other than that, go nuts.

      It’s the use of said military hardware in public where things get hairy.

      I don’t think the Negative Zone would count as “cruel and unusual”. I mean, we’ve got a guy in Colorado who hasn’t had any human contact in almost three decades, and that passes muster. This is something we’ll be looking at in more detail later on. But sentencing anyone to anything without a trial is a problem.

    • No, any bill to draft a particular person by name is unconstitutional on its face, amounting to a bill of attainder.

  13. It seems like drafting superheroes could be easily done based upon their extraordinary abilities. The military is allowed to exclude people based upon disability. So they could simply claim that they are drafting everyone who meets the conditions for service in the newly-created branch of the military. That condition is that you have to have a superpower.

  14. They need to see proof of the power to register? What if it’s a guy who’s power is the ability to become a stellar mass blackhole for example?

  15. Pingback: The Uniques I: Registration | Law and the Multiverse

  16. Just wondering why the SHRA wouldn’t be covered by the Census, which is authorized by the Constitution. Since they use the census to count every person in the U.S., citizen or not, I would think their could also be a separate category to count ever Super-Human in a household, city, and in the country. Perhaps the long form version of the census would request details as to what powers super-humans have.

    • An interesting thought, but there are several reasons why this won’t work.

      First, the Census is only conducted every ten years. It isn’t anything like a usable registry.

      Second, all the Census does is require you to answer a few questions. It does not carry any behavioral mandates beyond that, like refraining from the use of superpowers. It certainly doesn’t permit the creation of anything like the Fifty State Initiative.

    • Ryan made some good points, but another one is that census information is currently held confidential, by statute. 13 U.S.C. § 9(a). It also cannot be used to the legal detriment of any respondent, except in the prosecution of alleged violations of the federal census laws (of course). 13 U.S.C. § 8(c).

      Now, those are just statutes, not constitutional rules, and those statutes could be repealed or modified in order to pave the way for a census-based SHRA, but I think there would be a bit of an uproar from the non-superpowered majority. And the change in the law would probably have to be across-the-board. A modification that said “…except for people with superpowers” would definitely invite a legal challenge.

  17. The SHRA (as several have said) not well thought out in implication and results, but it seems pretty clear that the government was trying to do 2 things:

    1) reassert it’s prerogatives as the legitimate enforcer of the laws. The primary “targets” of the SHRA were those putting on the spandex and going out on the streets to knock criminal heads together. That’s law enforcement and that’s the govt’s job.

    Consequent to that:

    2) ensure that active costumed adventurers/crimefighters/whatever were properly trained in the use of their powers and inculcated with a minimum set of operational guidelines governing their use.

    That is, earning your SHRA card was like taking a Concealed Weapons Permit class. You could only be a “legal” crimefighter if you passed the tests proving you knew what the hell you were doing (remember Stamford) so that you didn’t make bad situations worse. This also applied to people who might not be thwacking thugs, but simply rescuing kittens from trees, etc.

  18. That might have seemed pretty reasonable (although still possibly implicating states’ rights issues in that it would be a federal law superseding state laws on citizen’s arrests, self-defense, and good Samaritan acts such as rescuing kittens or people), except that reading the stories reveals that was NOT all the law did. It gradually was revealed that it didn’t matter whether you were fighting crime or not, if you had powers you had to register, period. And not only register, but undergo training in the use of your powers as a government-sponsored superhero/super soldier if they told you to, so there was a draft component as well. Retirement from being a superhero, or never becoming one in the first place, did not get you out of having to register or being subject to the draft, it just made you less likely to attract the government’s attention for enforcement action.

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