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Even as the war in Iran has seemed to de-escalate since a ceasefire began last week, we’ve recently witnessed just how out of hand things could possibly still get. One particular development last week has been largely overlooked but demonstrates the depth of the dangers ahead. It also, though, showed a simple possible way to rein in the president’s ability to overreach in his war-making power.

The key, underexplored issue is this: At the same time as Donald Trump has threatened the death of “a whole civilization” and publicly mused about the U.S. military’s “next conquest,” the Office of Information and Regulatory Affairs quietly worked to streamline the selective service registration process. Under a proposed rule implementing a provision of December’s National Defense Authorization Act, all men between 18 and 26 would automatically be registered for the draft. While there is currently no indication that Trump will seek to implement a draft, he has announced a blockade of the Strait of Hormuz while also not ruling out a boots-on-the-ground invasion of Iran and has threatened or implied other large-scale operations in Greenland, Cuba, Venezuela, Colombia, Mexico, and Canada. All this means that the threat of a military draft is now more of a serious one than it has been perhaps at any point in most Americans’ lifetimes.

The concerns around the draft raise a deeper constitutional question that has been too long neglected, along with a possible answer for those concerned about Trump’s authority here. The question is simple: Is the draft itself constitutional? Under Supreme Court precedent, the answer is yes. At the same time, the Roberts court has given significantly less weight to precedent than previous courts. Critically, in overturning Roe v. Wade, the court introduced “history and tradition” analysis as an important consideration when evaluating unenumerated rights—and presumably unenumerated governmental powers. Whether evaluating gun regulations, freedom of religion, or unenumerated rights like that to reproductive autonomy, the justices have repeatedly asked whether a contested practice is consistent with the nation’s historical understanding at the time........

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