Breen v. Selective Service Local Board No. 16/Concurrence Brennan

by William J. Brennan, Jr.

United States Supreme Court

396 U.S. 460

Breen  v.  Selective Service Local Board No. 16

 Argued: Nov. 19, 1969. --- Decided: Jan 26, 1970

Mr. Justice BRENNAN, concurring.

In Oestereich v. Selective Service Board, 393 U.S. 233, 89 S.Ct. 414 21 L.Ed.2d 402 (1968), I joined Mr. Justice Stewart's dissent expressing the view that § 10(b)(3) was designed to permit judicial review of draft classifications only in connection with criminal prosecutions or habeas corpus proceedings. 393 U.S., at 245, 89 S.Ct., at 420-421. But continued adherence to that construction is foreclosed by the Court's holding in that case that § 10(b)(3) did not preclude pre-induction judicial review of the case of a registrant entitled to a statutory exemption. Therefore, because I too 'fail to see any relevant practical or legal differences between exemptions and deferments,' I join the opinion of the Court.

Mr. Justice STEWART, with whom THE CHIEF JUSTICE joins, concurring in part.

For the reasons expressed by Mr. Justice BRENNAN, I join the opinion of the Court insofar as it holds that the District Court had jurisdiction to entertain the petitioner's suit and should have granted him the injunction he sought. I do not, however, join the Court's opinion insofar as it holds that the delinquency regulations have not been authorized by Congress. See Gutknecht v. United States, ante, 396 U.S., p. 314, 90 S.Ct., p. 515 (concurring in judgment).

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