Editore"s Note
Tilting at Windmills

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March 6, 2006
By: Kevin Drum

SOLOMON AMENDMENT....The Solomon Amendment, originally passed in 1996, allows the government to deny federal funding to universities if they prevent either ROTC or the military from recruiting on campus. Several law schools challenged the law, saying it infringed their First Amendment right to refuse association with organizations that discriminate against gays, and today the Supreme Court ruled unanimously in favor of the government.

Prof. Bainbridge explains that the key issue is the "unconstitutional conditions doctrine," which means that a law denying funding unless you do X is constitutional if Congress could just mandate X in the first place. That makes sense to me, although I'm a little surprised to learn that Congress could indeed have simply mandated access to military recruiters if it wanted to. Under that doctrine, could newspapers be required to accept advertising for military recruitment even if they didn't want to?

But that's not what I'm really curious about. What I'm curious about is this: if Congress could have simply forced universities to provide access to military recruiters, why didn't they do it? Why bother with all the federal funding cutoff folderol? Seems pretty inefficient, no?

Kevin Drum 6:00 PM Permalink | Trackbacks | Comments (84)

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Tying it to federal funding is probably the best ways to get universities to go along. University administrators may well prefer to go to jail than lose their NIH grants.

Posted by: AF on March 6, 2006 at 6:08 PM | PERMALINK

Not to mention that Congress probably isn't interesting in making martyrs out of university administrators by sending them to jail.

Posted by: AF on March 6, 2006 at 6:09 PM | PERMALINK

You misunderstand, Kevin. The reason for the federal funding cutoff is that it's the federal funding which allows Congress to regulate the matter in the first place. An organization which does not recieve federal funds couldn't be ordered to allow access to recruiters . . .

Posted by: rea on March 6, 2006 at 6:16 PM | PERMALINK

Could it be that Republicans want to cut money from education?

Posted by: zed on March 6, 2006 at 6:23 PM | PERMALINK

I think Congress did it this way simply because it's just a common method of their doing business -- placing conditions on the receipt of federal money. Whereas they don't as frequently and broadly utilize the "raise armies" power. They knew what policy outcome they wanted, and they just took the most familiar path (tie it to spending). In fact, I was in law school when this issue arose (or, more precisely, when the Bush admin's DOD starting pushing for stricter compliance with Solomon), and I don't recall the government and their supporters themselves even realizing/arguing that they could just justify this on the "raise armies" clause and be done with it.

At first glance, though, I think that if the opinion has to go this way, this is a good way to write it (by saying, look, you have the power to do this in order to raise an army -- so therefore you can do it indirectly, as well). Therefore, it doesn't foreclose future challenges to coercive use of the spending power.

Posted by: anon on March 6, 2006 at 6:24 PM | PERMALINK

anon is actually pretty much right.

the government didn't really raise the Article I raise armies power in its brief. during oral argument Scalia brought it up and asked why the case didn't end right there.
today it appears that Roberts and rest of the court agreed that was the simplest path to take.

as to why Congress didn't use Article I in the first place...it probably just didn't occur to them. legislators are so used to using expansive renderings of the commerce and spending clauses that little-used but explicit constitutional language can be passed right over.

Posted by: Nathan on March 6, 2006 at 6:29 PM | PERMALINK

And by the way, Rea, I don't think Kevin is misreading this. Integral to the decision (if not dispositive) is the Court's thought that the "raise Armies" clause probably WOULD (and at the very least might) allow Congress to order an organization that does not accept funds to allow access to recruiters:
"The Constitution grants Congress the power to provide for the common Defence,” “[t]o raise and support Armies, and “[t]o provide and maintain a Navy.” Art. I, 8, cls. 1, 12–13. Congress’ power in this area “is broad and sweeping,
” O’Brien, 391 U. S., at 377, and there is no dispute in this case that it includes the authority to require campus access for military recruiters. . . . Congress’ decision to proceed indirectly does not reduce the deference given
Cite as: 547 U. S. ____ (2006) 9 Opinion of the Court to Congress in the area of military affairs. Congress choice to promote its goal by creating a funding condition deserves at least as deferential treatment as if Congress had imposed a mandate on universities."

Posted by: anon on March 6, 2006 at 6:32 PM | PERMALINK

"if Congress could have simply forced universities to provide access to military recruiters, why didn't they do it? Why bother with all the federal funding cutoff folderol? Seems pretty inefficient, no?"

Maybe it gives the leftists a chance to put the money where their mouth is. So are leftists people of principle or just a bunch of hypocrits?

Posted by: Freedom Fighter on March 6, 2006 at 6:34 PM | PERMALINK


It appears that Roberts is having more clout on this court than even Kennedy and Leahy feared.
To get a unanimous opinion on this case, with no concurrences is quite a feat.

The Roberts Court will be W's lasting domestic legacy, cementing him as one of the most influential presidents since FDR (along with the Gipper, of course).

Posted by: Jimbo on March 6, 2006 at 6:41 PM | PERMALINK

FF-
The money generally doesn't subsidize the law schools, actually. At Yale, it was like $300, and most of it went to medical research. Cancer and stuff. It's not like it was being used for gold carpeting and lattes. But good to know our government thinks it's worth threatening cancer research to make sure nobody protests don't ask/don't tell. Freedom!!!!

Posted by: anon on March 6, 2006 at 6:41 PM | PERMALINK
What I'm curious about is this: if Congress could have simply forced universities to provide access to military recruiters, why didn't they do it? Why bother with all the federal funding cutoff folderol? Seems pretty inefficient, no?

Its no more inefficient than paying all old people to keep those that would otherwise be starving in the streets from doing so (see Social Security), its simply a way to make it more politically palatable.

Posted by: cmdicely on March 6, 2006 at 6:43 PM | PERMALINK

Is Kevin being dumb here?

Does he REALLY think the government should mandate all campuses allow military recruiters on campus???

I don't know anyone, even pro-military Republicans, who have made that argument.

I like the Supreme Court's ruling: If a campus wants to ban military recruiters, fine. But they lose federal funding if they make that choice.

Posted by: Monkey See on March 6, 2006 at 6:43 PM | PERMALINK

FF - what is a leftist?

Posted by: MattR on March 6, 2006 at 6:44 PM | PERMALINK

Does anyone else want to admit that Roberts / Alito seem to have had a calming effect on the liberal side of the Bench?

Not really; this seems like a pretty easy case with a clear result indicated by Article I.

Though, if Congress tried to apply it without a tie to federal funds, and without compensation, it might be interesting to see a 5th Amendment challenge.

Posted by: cmdicely on March 6, 2006 at 6:46 PM | PERMALINK
I like the Supreme Court's ruling: If a campus wants to ban military recruiters, fine. But they lose federal funding if they make that choice.

Um, that's Congress' law, not the Supreme Courts ruling.

The Supreme Court ruled that Congress has the Article I power to order all schools, with or without federal funding, to admit recruiters therefore it also has the lesser power to condition federal funding on the school allowing recruiters.

Posted by: cmdicely on March 6, 2006 at 6:48 PM | PERMALINK

Freedom Fighter's statement is offensive, but it actually does answer Kevin's question. The reason that it was done this way was because there's a heck of a lot of enthusiasm in the right wing base to "defund the left", as they put it. This is based on a theory that liberalism is unpopular, and the only way liberals are able to advance their ideas is by having the government pay for it, so stop funding for things like the National Endowment for the Arts, legal services, and other such programs and the "left" will no longer be able to advance its ideas.

It's a BS theory, but a lot of conservatives believe it or at least mouth it. Tying military recruiting to federal funding, rather than just using the "raise and support armies" clause explicitly, serves the right wing talking point that liberalism is created by feeding at the public teat.

Posted by: Dilan Esper on March 6, 2006 at 6:50 PM | PERMALINK

Is it constitutional for congress to contradict itself? I mean, if i went to the scotus, challenging a law based upon the fact that it contradicts - directly - another law passed by congress, what would the scotus say?

Posted by: cdj on March 6, 2006 at 6:53 PM | PERMALINK

Does anyone else want to admit that Roberts / Alito seem to have had a calming effect on the liberal side of the Bench?

I don't even know what that's supposed to mean.

I do, however, await the calming effect of the SCOTUS declaring the GOP a permanent government, with voting, the Bill of Rights, and Federalism all to be optional. Because that will be the the thing that gets California out of this union.

Posted by: craigie on March 6, 2006 at 6:59 PM | PERMALINK

cdj...although courts will attempt to construe conflicting statutes in such a way as to avoid their conflicting, if they are indubitably in conflict...the statute which is last in time prevails.

Posted by: Nathan on March 6, 2006 at 7:00 PM | PERMALINK

At its base, one might wonder why Congress ties NIH grants to the requirement that military recruiters be allowed on the campuses of professors who receive NIH grants in order to recruit the undergraduate students. It's like tying medicare funds of hospitals to the ability of the federal government to regulate the working conditions of the hospital's architects. The Soloman amendment could have been tied to things like Pell Grants or federally-subsidized college loans, or something more directly related to the students.

But yeah, anon gets it right-- this is the way Congress does business. They want to set the national speed limit and maximum BAC? Tie laws mandating those limits and levels to the reception of federal highway funds. The Title IX requirements are tied to reception of federal funds, as well. We could come up with dozens of examples.

Posted by: Constantine on March 6, 2006 at 7:02 PM | PERMALINK
Is it constitutional for congress to contradict itself? I mean, if i went to the scotus, challenging a law based upon the fact that it contradicts - directly - another law passed by congress, what would the scotus say?

Generally, a new statute replaces an older statute, to the extent they can't be interpretted not to conflict.

Posted by: cmdicely on March 6, 2006 at 7:02 PM | PERMALINK
But yeah, anon gets it right-- this is the way Congress does business. They want to set the national speed limit and maximum BAC? Tie laws mandating those limits and levels to the reception of federal highway funds. The Title IX requirements are tied to reception of federal funds, as well. We could come up with dozens of examples.

Many of those are things where Congress clearly has no Article I power other than the spending power, or at least the non-spending power claimed would be highly questionable; I don't think its just habit, using the spending power provides an extra layer of defense against Constitutional challenge, plus it provides political insulation, since its not a mandate, its just a condition on funds the recipient chooses whether or not to seek.

Posted by: cmdicely on March 6, 2006 at 7:05 PM | PERMALINK

Dear Recruit(able),

Thankyou for saying hello to me. I have a wonderful opportunity in store for you if you will just sign here on this piece of paper.

(Recruitee writes name on line)

Great, now here are some of the benefits which you have so wisely signed up for...

-A chance to expose yourself to the healing powers of Depleted Uranium, don't worry about what you've heard about DUI, it's actually a sex enhancer.

-The privilege to shoot unarmed women and children as long as you have at least one bad guy in your sights.

-A chance to be a part of the largest and most bloated military machine in history.

Why are you shaking your head? You've signed the form.

Gotcha!

Posted by: Tom Nicholson on March 6, 2006 at 7:05 PM | PERMALINK

cdj...although courts will attempt to construe conflicting statutes in such a way as to avoid their conflicting, if they are indubitably in conflict...the statute which is last in time prevails.

A example of this is the when the Authorization of the Use of Military Force (AUMF) overrode FISA. FISA tried to limit the right of the unitary executive to wiretap terrorists, but this limit was overriden when AUMF was passed because AUMF gave Bush the power to do whatever he believes is necessary to attack the terrorists which includes wiretapping suspected terrorists.

Posted by: Al on March 6, 2006 at 7:05 PM | PERMALINK

Since any College Student who is dumb enough to join the military deserves what they get, I'm having a real difficult time giving a crap about this issue.

Stay focussed on the Republican Culture of Corruption, and the Democratic Culture of Being Nice To Republicans.

Posted by: Mammon on March 6, 2006 at 7:13 PM | PERMALINK
A example of this is the when the Authorization of the Use of Military Force (AUMF) overrode FISA.

Or would be, if the AUMF overrode FISA. Since AUMF can clearly be interpreted without overiding FISA, since an exception to FISA was discussed but not included in the AUMF, and since FISA is clearly written to require an explicit statutory exception, a court would have to be full of (or at least have a majority consisting of) the worst type of outcome-oriented shills for unchecked executive power to find that AUMF overrode FISA.

That's not to say that the Roberts Court might not do just that, obviously.

Posted by: cmdicely on March 6, 2006 at 7:15 PM | PERMALINK

I'm not sure 'raise and support armies' would neccessarily allow congress to order specifically colleges to allow recruiting. That might be discriminatory. (Why not churches, private homes, etc?)

So attaching it to the federal money is more a less a guaranteed winner, and I don't see why anybody would have thought the colleges would win. If discrimination by colleges against a specific set of recruiters were constitutional in spite of strings attached to federal funding, then that implies colleges can discriminate against anybody regardless of federal funding.

Ergo, someone could set up a whites-only college and demand and be entitled to federal money.

ash
['Yeah.']

Posted by: ash on March 6, 2006 at 7:15 PM | PERMALINK

This ruling makes no sense.

Apparently under this ruling, a school hosting a Nazi recruiter couldn't be held liable as supporting Nazi views.

o-o

Posted by: Crissa on March 6, 2006 at 7:16 PM | PERMALINK

Does he REALLY think the government should mandate all campuses allow military recruiters on campus???

Should? No.

Could?

The Supreme Court seems to think so.

Posted by: Crissa on March 6, 2006 at 7:23 PM | PERMALINK
good luck getting California out of the Union - didn't work so great for the South 150 years ago ; )

So, at that time, California's side won and the side the South was on lost.

What makes you think that the result would be different if there was a rematch?

Posted by: cmdicely on March 6, 2006 at 7:25 PM | PERMALINK

You would have preferred soldiers on campus enforcing the law? National guardsmen, perhaps? Withholding money is easy and straightforward, and denies the faculty the opportunity to look like they are defying the government. All they need do to defy the government is give up their money, which none of them choose to do.


meanwhile, back to the civil war in Iraq:

http://timesofindia.indiatimes.com/articleshow/1438607.cms

Interesting news if true.

Posted by: republicrat on March 6, 2006 at 7:30 PM | PERMALINK

Well, I did Kevin an injustice in my post above, unwisely written before I had actually read the opinion. The Supreme Court does indeed find authority for the statute mandating acess for military recruiters in Congress' constitutional power to raise armies. I'm not completely sure I understand why they think that trumps the First Amendment--they seem to be saying that opposition to the military's policies on gays and lesbians isn't "inherently expressive"!

Posted by: rea on March 6, 2006 at 7:31 PM | PERMALINK

Craigie writes, I do, however, await the calming effect of the SCOTUS declaring the GOP a permanent government, with voting, the Bill of Rights, and Federalism all to be optional. Because that will be the the thing that gets California out of this union.

Craigie, I'm not sure what color the sky is in your world, but here on my world (it's blue) one would wait a long, long time for the SCOTUS to do something like that.

Getting past the specific issue, Chief Justice Roberts wrote a clear, concise opinion that every other Justice could support. It's been a while, and I'd like to think that while they won't always be united, there will be clear majorities on the major opinions, and that those opinions will be clearly written, so that the country will understand. One might not like the opinion, but one will at least know why they wrote what they did, and that it's a true majority opinion. If you're in opposition to the majority at SCOTUS, that's a start.

Posted by: Steve White on March 6, 2006 at 7:34 PM | PERMALINK

Rea, from what I've read on this, the Court appears to grant the Article I powers very broad latitude and authority. Article I gives Congress the power to 'raise an army' and 'support a navy', and the Court has, in the past, been very deferential to that.

Posted by: Steve White on March 6, 2006 at 7:36 PM | PERMALINK
Well, I did Kevin an injustice in my post above, unwisely written before I had actually read the opinion. The Supreme Court does indeed find authority for the statute mandating acess for military recruiters in Congress' constitutional power to raise armies. I'm not completely sure I understand why they think that trumps the First Amendment--they seem to be saying that opposition to the military's policies on gays and lesbians isn't "inherently expressive"!

I think its like this. You can protest a policy that Congress has the power to enact under Article I, but you can't refuse to substantively comply with it. So, for instance, just as the First Amendment allows you to protest, say, a tariff levied by Congress, but not to refuse to pay it, similarly it allows you to protest the decision to discriminate, but doesn't allow you to refuse to cooperate with recruitment, so far as Congress has an Article I power to direct that cooperation.

Posted by: cmdicely on March 6, 2006 at 7:37 PM | PERMALINK

The amusing aspect of this is Yale complaining about "Don't Ask, Don't Tell," Clinton's compromise, while recruiting the Taliban foreign minister with his fourth grade education and GED to be a student. Maybe he should take civil engineering so he can more efficently crush gays by toppling cement walls onto them as they lie in ditches. That's what they did, you know.

Can the left get any more illogical in the world of cozying up to Islamic fascists while hating Bush ?

Posted by: Mike K on March 6, 2006 at 7:42 PM | PERMALINK
Are you serious?! California was not some big decisive factor in the Civil War - no reason to think California alone could do what the entire South could not.

Who said California would leave alone?

The bigger point (no surprise you missed it) is that the side trying to get out of the Union lost last time around, so it would be up to you to explain why you think THAT result would be different if there was a rematch.

Sees to me, the high-tech economic power won last time. Why you think the identity and substantive characteristics of the parties are less important than the goals is beyond me.

Of course, its unlikely that California would try to leave.

Posted by: cmdicely on March 6, 2006 at 7:46 PM | PERMALINK

That's some hilariously incoherent shit Mike, thanks.

Posted by: es on March 6, 2006 at 7:46 PM | PERMALINK
..."Don't Ask, Don't Tell," Clinton's compromise,...

Nunn and Lieberman's compromise, offered to and accepted by Clinton, would be somewhat more accurate, IIRC.

Posted by: cmdicely on March 6, 2006 at 7:49 PM | PERMALINK


FREEDOM FIGHTER: So are leftists people of principle or just a bunch of hypocrits?

Hard to say. I guess that, because they are people, they're a mixture of both. Easier to answer, though, is: Are rightists people or just a bunch of hypocritical principles?


Posted by: jayarbee on March 6, 2006 at 7:56 PM | PERMALINK
Well, cmdicely, I will admit it certainly would make quite a difference whether it was only California that decided to leave, or 49 States vs. Wyoming, for instance.

Well, surely, it would. Though, actually, its 49 states vs. Texas, though I probably shouldn't let you in on the plan.

But, I was not the one to even bring California up - craigie did and he/she/it mentioned only that one State, so that's the hypothetical

The hypothetical is California tries to leave; evaluating whether other states are likely to decided to join if that happens is part of evaluating and responding to the hypothetical. It was not specified that it was limited to California.

as you stated on another thread: "When I sign up for a course where you are an instructor, or get a job where you are my supervisor, feel free to hand me assignments."

I don't think you understand. Neither of those conditions has yet been fulfilled.

Suffice it to say, I wouldn't have a problem nuking L.A. and San Francisco though.

Yeah, well, Chuckles, your fantasies of association with the Vice President aside, its not like you'd have much substantive choice.

Grown ups that have to deal with consequences in the real world -- even monumentally evil ones that like to pretend they create their own reality -- might have more problems with that.


Posted by: cmdicely on March 6, 2006 at 8:05 PM | PERMALINK

The universities should continue to refuse access to the recruiters because they do not have to fear loss of funding - here's why: Most big corporations, law firms, tech firms, pharma etc. have major ties and research partnerships with universities, at least the big ones. Congress is owned by the big corps and will do what they tell them to do, including backing off any enforcement of penalties imposed by this law.

Posted by: jman on March 6, 2006 at 8:07 PM | PERMALINK
That's right - you are neither my instructor nor my supervisor.

Nor have I tried to hand you an assignment. Your point?

Posted by: cmdicely on March 6, 2006 at 8:15 PM | PERMALINK

So.....let's say some state mandates sexual orientation non-discrimination policies when it comes to providing access to employers. Since access, as a matter of constitutional law, is not speech, on what grounds could a law school object?

Posted by: jpe on March 6, 2006 at 8:22 PM | PERMALINK

Wouldn't there be Third Amendment issues with requiring universities to provide access to recruiters, except in (presumably honest-to-god) wartime?

(And that, by the way, is perhaps the only time the Third Amendment has been invoked in a serious manner since Reconstruction.)

Posted by: Joe on March 6, 2006 at 8:22 PM | PERMALINK

I thought the idea was, if the government didn't owe you the money in some sense, they could set conditions on whether to dole it to you. OTOH, no one should have to accept recruiters or whatever if they don't want to, but then should the government have to give them funds? I don't think the G should be able to make the universities do it through the application of *sanctions*, which means actual punishment, not withholding of something you aren't *obligated* to give someone.

Posted by: Neil' on March 6, 2006 at 8:22 PM | PERMALINK

I think Bainbridge or Roberts, or both, are full of crap. I don't think Congress could have required them to accept recruiters. And if they refuse to accept Congressional money, they won't have to. (Is this a violation of the Third (I think) Amendment? No Quartering of Troops? Think about that one.)

Posted by: David in NY on March 6, 2006 at 8:34 PM | PERMALINK

I don't really have an opinion about the way this case came out (because even though I see the rationale used by the Court, I also think that university nondiscrimination policies are quite important and that the colleges' claims that they didn't want to be forced to allow employers with homophobic policies onto campus were quite colorable).

But I do think the people who are downplaying the "raise and support armies" clause of the Constitution don't realize how broad that power has to be. We don't fight manpower-intensive wars the way we used to, but if you think about it in the context of, say, the Civil War or World War II, you can see why the Court reads the power so broadly. In the case of a real military emergency, the government's power to conscript has got to be broad.

Of course, we are talking about law schools and not conscripting forces. But armies also need JAG's (indeed, the military should have listened to its JAG's regarding detainee policies in the past few years). Many people recall the movie and television show M*A*S*H, which involved conscripted surgeons. And we are not even talking about conscription here, but merely recruitment, which is less onerous. Are you going to tell me that a medical school in 1862 would have had the right to prohibit the Army from coming onto campus to recruit doctors to treat the wounded on the battlefields at a time when there was a great shortage of medical personnel? Seems to me that's exactly what "raise and support armies" is all about.

Of course, we are not in the Civil War, we need less personnel, and the military efforts in Iraq and Afghanistan could survive without the lawyers from these law schools. Still, I don't see how those facts can be reviewed by courts without putting them in a position to block recruitment efforts when there really is a military necessity. (This is the same reason the peacetime draft is constitutional.)

Posted by: Dilan Esper on March 6, 2006 at 8:51 PM | PERMALINK

By the way, as a p.s., the Third Amendment involves quartering of troops in people's homes, i.e., forcing private persons to allow soldiers to live in their homes.

I understand there is an ANALOGY to be drawn here (i.e., that the Third Amendment protects the public from overencroachment by the military in the private sphere), but I don't think you can read the Third Amendment as applying to this context given the broad and definitive conscription power in Article I. If the Third Amendment were read that way, it might, for instance, ban military recruiters from going door to door to sign people up. And that's clearly within the power to raise and support armies.

Posted by: Dilan Esper on March 6, 2006 at 8:54 PM | PERMALINK

jman, Congress would have to write an amendment to the Soloman Act to void the penalties. Think the current admin would sign it?
Many of the members of the FAIR group used the "Don't Ask, Don't Tell" policy as the basis of their arguement. the military is discriminatory based on this policy, so they don't want them on campus. But if they want to stay true to their high ethics, then why let big Pharma recruit on campus when many of them use animals for testing? That seems to be a big debate these days.
This happens to be the second unanimous vote in a week from the Roberts court. There was the case last week that said abortion clinics could not keep protesters away by trying to use the RICO Act, saying the protesters were extorting the clinics.

Posted by: meatss on March 6, 2006 at 9:06 PM | PERMALINK

California was not some big decisive factor in the Civil War

California gold sure was.

Posted by: Jeffrey Davis on March 6, 2006 at 9:10 PM | PERMALINK

What I found interesting is how Roberts rejected the free speech argument, in that Congress is not regulating the Law School's speech, only its conduct. Given that, I wonder if he will still consider campaign donations to be "speech" and not conduct.....

Posted by: Richard on March 6, 2006 at 9:11 PM | PERMALINK

What's interesting is the Court used an argument that the Solicitor General had apparemtly not briefed. Of course, they settled that argument with the assertion of Congress's constitutional power to raise armies.

Some would say that sounds like 9/10 thinking when everyone knows that a wartime situation, the president is the sole determiner of our national security policy. So why would we expect Bush's Solicitor General think to argue a case asserting Congresional authority?

Why next the Court might do something crazy and hold that Congress has the power, "To make rules for the government and regulation of the land and naval forces".

Posted by: beowulf on March 6, 2006 at 9:19 PM | PERMALINK

meatss

No , of course the administration would not sign such a change to the Solomon Act. But, I still think that enforcement is another issue.
When it comes down to it, money will trump all other interests and I just dont think that big pharma for instance, would stand by idly as the government took away funding from a major research institution.

Posted by: jman on March 6, 2006 at 9:31 PM | PERMALINK

JMAN, do you think it would ever get to the point where a college admin would even contemplate challangeing Congress's ability to withhold funds? I know in Calif. the state is losing hundreds of millions a year because they don't have a statewide child support database in place. There is no corp. to defend these children, but it seems the feds have no qualms of withholding funds if their conditions are not met.
The corperations would have to band together as a unified group to exert their will. Otherwise it would be a disjointed effort seemingly due to fail.

Posted by: meatss on March 6, 2006 at 9:40 PM | PERMALINK

Yeah, but the opinion also basically said the university could set up a table right next to the recruiters with big signs explaining how the military discriminates against homosexuals. Whee.

Posted by: MNPundit on March 6, 2006 at 9:43 PM | PERMALINK

Yeah, but the opinion also basically said the university could set up a table right next to the recruiters with big signs explaining how the military discriminates against homosexuals. Whee.

Posted by: MNPundit

Who cares? The military is not actively looking to recruit gays and most staight guys are not too interested in gay issues. Unless they were disruptive there would be neglible impact and they be removed by the police in any case.

Posted by: Fat White Guy on March 6, 2006 at 9:59 PM | PERMALINK

Hillsdale did it, why not Yale?
Of course, we could discourage corporate grants by denying them tax benefits.
I wish this decision was retroactive, taking back the last 5 years' money.
Let's go further and require 25% ROTC enrollment before any government funds.

Posted by: Walter E. Wallis on March 6, 2006 at 10:45 PM | PERMALINK

Wouldn't there be Third Amendment issues with requiring universities to provide access to recruiters, except in (presumably honest-to-god) wartime?

No, because the parts of the university that they have access to will usually not be houses within the meaning of the third amendment, because the recruiters are not "quartered" there in any case, and because they are tied to funds that the university (the owner of the property) voluntarily requests with full knowledge of the conditions, they, therefore, have the consent of the owner.

If they weren't tied to funds, I'd say there was a colorable 5th amendment (taking clause) case, especially if, e.g., corporate recruiters only got the space either with payment or on satisfying some other condition of benefit to the university (including, arguably, compliance with a nondiscrimination policy), so long as Congress didn't authorize just reimbursement for the time and space used.

Posted by: cmdicely on March 6, 2006 at 11:43 PM | PERMALINK

Suffice it to say, I wouldn't have a problem nuking L.A. and San Francisco though.

Ah, that old time religion. Can you say brotherly love?

Well, thanks for showing your true, hideous self.

Posted by: craigie on March 6, 2006 at 11:43 PM | PERMALINK

I thought withdrawal of federal funding was tested in the courts under various rules withdrawing funding from universities with diversity issues... where as any other method might not be tested in courts.

Posted by: Mca on March 6, 2006 at 11:47 PM | PERMALINK

Craigie,

Regarding the "Cheney" posts, do you actually believe he is serious? Do you not sense that maybe its not REALLY Cheney, and the person writing is actually in agreement with you on these issues? I recommend you re-read his/her posts. And maybe suspend the knee-jerk indignation a bit.

Posted by: Simon on March 7, 2006 at 12:21 AM | PERMALINK

This post actually made go re-read the 3rd Amendment!

Posted by: Robert Earle on March 7, 2006 at 12:37 AM | PERMALINK

You people supporting the schools in this case are just plain full of shit. Old doctrine, going back centuries: "take the king's money, do the king's bidding." If those schools wanted to stand on principle, then they should have refused the federal money. These people you're supporting are just a bunch of hypocrites.

The people in charge in these schools are acting like the spoiled rich people they are. "What, you mean we can't do whatever we want? But...but, we're the chosen people." Assholes is what they are.

Even without getting into Article One, these schools never had a case. All they did was waste their moneyregarding which I don't careand taxpayers' moneyregarding which I care very much. The unanimous vote says it all.

Posted by: Nixon Did It on March 7, 2006 at 12:53 AM | PERMALINK

Do you not sense that maybe its not REALLY Cheney,

Actually, no. It seems completely in character.

The Cheney at 9:16 is a fake. The rest are him/it.

Posted by: craigie on March 7, 2006 at 2:00 AM | PERMALINK

Re: "if Congress could have simply forced universities to provide access to military recruiters, why didn't they do it? Why bother with all the federal funding cutoff folderol? Seems pretty inefficient, no?"

But if you tie it to funding, then you can argue that the schools were not forced to do it -- that they did it of their own free will -- which you cannot argue if you mandate access. So tying it to funding has less of an authoritarian ring and is thus the preferred authoritarian mode.

Posted by: focus on March 7, 2006 at 6:01 AM | PERMALINK

I agree wholeheartedly with Nixon above. That's one reason why the wingnut colleges are fanatic about not recieving any federal dollars. They don't want the Federal Govt. telling them to do something they don't want to do. Colleges & Universities upset at the Military's anti-homosexual policy should be lobbying their institutions to reject federal funds.

Posted by: Dustin Ridgeway on March 7, 2006 at 6:20 AM | PERMALINK

Let's remember, the actual case has little to do with homosexuality. I see it as a First Amendment issue all the way. Whether or not you agree with the military (and no, I don't) the universities are restricting the free speech rights of the recruiters. If you dislike a law so much that you feel you must break it, than you have to be courageous enough to accept the consequences. This is a democracy, if we don't like a law, we have to convince a majority that our opinion is correct, and change the law. That is how it works. My reading of the decision supports this: If you find the presence of military recruiters objectionable, then don't accept the federal funding. Although reference is made to the government's having a RIGHT to have these recruiters there, it is not part of the actual opinion. I see this as a deliberate use of a minimal expression of the rights of the governament. If this is what a Robert's court will look like, well, it could be a hell of a lot worse.

Posted by: Simon on March 7, 2006 at 9:19 AM | PERMALINK

If the Third Amendment were read that way, it might, for instance, ban military recruiters from going door to door to sign people up. And that's clearly within the power to raise and support armies.

No, that's not correct.

Nothing would prohibit door-to-door visits ("Can I interest you in joining the Army?").

The Third Amendment prohibits Quartering and also IMPRESSMENT. "Say, that's a nice looking kid you have- Corporal, take him to Boot Camp!". The Military can't do jack in your home without your permission. The 13th Amendment also has a few things to say about involuntary service without recourse.

A Draft is not prohibited by the 3rd, 13th, and 14th Amendments because it is lawfully and equally applied- your chances of going are random. It applies to (almost) everyone, and you serve for a limited time.

You guys are reading way too much power into the "Raise an Army" section. Congress has the power to ask people to join, to randomly select them via a draft, or make access to recruiters a condition of funding.

They absolutely cannot show up at Yale and point at everyone and say "Congrats, you are now in the Navy".

Going to ORIGINAL INTENT, Impressment was a cause of the War of 1812 and a serious concern of the Founding Fathers.

Roberts is correct in this case, there is no reason why Congress can't advertise for military service in any circumstance, so tying it to Federal funding is okey-dokey.

Posted by: Alderaan on March 7, 2006 at 10:13 AM | PERMALINK

Sorry, what's the distinction between conscription and impressment? Because the military (or their agents) certainly can come into your home and take your son off to the army if he refuses to go. (Draft dodging ring any bells?)

Posted by: ajay on March 7, 2006 at 10:59 AM | PERMALINK
The Third Amendment prohibits Quartering and also IMPRESSMENT.

No, it doesn't present impressment. It only restricts (not prevents) quartering.

Posted by: cmdicely on March 7, 2006 at 11:08 AM | PERMALINK

Conscription: 'Greetings, Mr. Fred Smith, of 1234 Fifth Street, City, State, Zip. You are being conscripted ....'

Impressment: 'Grab that one. And that one. And this one over here. And the ones hiding in the back room. And get us two more. Okay, wagon's full. Take them to the ship.'

Posted by: me on March 7, 2006 at 11:10 AM | PERMALINK
They absolutely cannot show up at Yale and point at everyone and say "Congrats, you are now in the Navy".

Constitutionally, at least to the able-bodied adult males, they certainly can.

Posted by: cmdicely on March 7, 2006 at 11:14 AM | PERMALINK

Only one comment here about this, by Mike K, so I'll add my voice to it: how can Yale be heard to complain about the Army's "don't ask" policy when Yale has in a very high profile way recruited as a student Sayed Rahmatullah Hashemi, the former deputy foreign secretary of the Taliban government in Afghanistan, whose only apparent credential for attending Yale is that he is the former deputy foreign secretary for the Taliban?

As Mike K points out, Hashemi is a high school dropout with naught more than a G.E.D. in his academic past. But his professional career highlights include serving in the most virulently and homicidally anti-gay government that's been seen on this planet since Herr Hitler departed this mortal coil.

I really wish I had a degree from Yale. Maybe then I could get my mind around the kind of thinking that says that U.S. Army recruiters shouldn't be allowed on Yale's campus, but a man who in all probablility has the blood of gays on his hands should be. Apparently it takes an Ivy-League education for such things to start making sense.

Posted by: Smaack on March 7, 2006 at 12:09 PM | PERMALINK
As Mike K points out, Hashemi is a high school dropout with naught more than a G.E.D. in his academic past. But his professional career highlights include serving in the most virulently and homicidally anti-gay government that's been seen on this planet since Herr Hitler departed this mortal coil.

I really wish I had a degree from Yale. Maybe then I could get my mind around the kind of thinking that says that U.S. Army recruiters shouldn't be allowed on Yale's campus, but a man who in all probablility has the blood of gays on his hands should be.

Yale probably wouldn't object to military recruiters as students either. The comparison is nonsense.

Posted by: cmdicely on March 7, 2006 at 1:12 PM | PERMALINK

Constitutionally, at least to the able-bodied adult males, they certainly can

Uh, no.

First, the 3rd Amendment is not just about G.I. Joe snoozing on your couch. It prohibits any use of private property or labor by the military without consent (and the 5th provides backup as well). Over 200 years of common and black letter law back this up.

Second, there is this little thing called the 13th Amendment that says that no one, including the Government, can just show up and keep you against your will without due process, and even then only for a crime.

Third, do you know what 'raising an Army' is? It's not going to the U. of Wherever or Main Street and helpfully telling everyone there they are going to Iraq. It has a lot to do with funding, command and control, etc., all of which is pretty easy to understand as the original intent of the framers.

Raising an Army means that Congress can fund it, command it, restructure it, disband it, honor it with decorations, commit it to tasks, etc. Google 'Cromwell' and 'Parliament' for further hints. It does NOT mean that Congress can eliminate all your other Constitutional rights to force you to join it indefinitely, and that is distinctly NOT what Roberts said.

The draft, as said before, is a different story because (as lawsuits have proven time after time) it is random, it is equitable, and it provides EXCEPTIONS FOR RELIGIOUS OBJECTORS. Notice that your 1st Amendment right to religious observation trumps Congress' right to raise an Army, time after time, suit after suit. Even in a time of great national need, devout Quakers and the Amish don't have to serve. You claim that Congress can tell them they have to. The Supreme Court has said 'hell no' so many times that I wonder why it hasn't sunk in yet.


Posted by: Alderaan on March 7, 2006 at 1:39 PM | PERMALINK
Second, there is this little thing called the 13th Amendment that says that no one, including the Government, can just show up and keep you against your will without due process, and even then only for a crime.

Which doesn't stop conscription.

Third, do you know what 'raising an Army' is? It's not going to the U. of Wherever or Main Street and helpfully telling everyone there they are going to Iraq.

Correct. The latter is an example of a different clause of Art. I, Sec. 8: "To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;"

Now, admittedly, one could argue that doesn't really allow a draft for foreign wars, but, while the plain language clearly supports that view, the case law does not.

Raising an Army means that Congress can fund it, command it, restructure it, disband it, honor it with decorations, commit it to tasks, etc. ...It does NOT mean that Congress can eliminate all your other Constitutional rights to force you to join it indefinitely, and that is distinctly NOT what Roberts said.

Well, yeah, the boundaries of the power to conscript, which stem from a different provision, were not at issue.

The draft, as said before, is a different story because (as lawsuits have proven time after time) it is random, it is equitable, and it provides EXCEPTIONS FOR RELIGIOUS OBJECTORS.

IIRC, the draft has not always been random, and its certainly arguable that it has often not been equitable either. Nor does it include exceptions from "involuntary service" for objectors, who are, at best, assigned alternative compulsory public service, in or out of the military.

Posted by: cmdicely on March 7, 2006 at 2:02 PM | PERMALINK

Further, it's unclear as to whether equal protections apply to women as well when it comes to military recruitment. No wonder the right fought and fought against the ERA...they don't want women or gays in *their* military.

Posted by: parrot on March 7, 2006 at 2:03 PM | PERMALINK

You want Grove City overturned? Hahahahaha
You reap what you sow

Posted by: donsurber on March 7, 2006 at 2:07 PM | PERMALINK

Which doesn't stop conscription.

I explicitly said that. Did your computer not display that part?

Correct. The latter is an example of a different clause of Art. I, Sec. 8: "To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;"

Now, admittedly, one could argue that doesn't really allow a draft for foreign wars, but, while the plain language clearly supports that view, the case law does not.

No, no and no.

BY DEFINITION wars in which the Army and Militia are called upon to defend the Several States are wars with foreign powers. Yes, even Indian Wars, which are against sovereign tribes. Thomas Jefferson would laugh himself to death if he heard you claim that the 'plain language' prohibits conscription for foreign conflicts. Confederate States of America is either a foreign power or a domestic insurrection, choose one. Either falls under Constitutional authority.

Well, yeah, the boundaries of the power to conscript, which stem from a different provision, were not at issue.

Since it's settled, then, why not try arguing something else?

IIRC, the draft has not always been random,

It has been since at least 1917.

and its certainly arguable that it has often not been equitable either.

It's equitable in the sense that it has never been along the lines of "All Jews report for service" or "Party Members only". All healthy male citizens of a certain age could be called. It's what they do AFTER being called that is unfair.

Nor does it include exceptions from "involuntary service" for objectors, who are, at best, assigned alternative compulsory public service, in or out of the military.

This is comically incorrect.

Try these Supreme Court Cases:

United States vs. Girouard (1946)

Welch vs. United States (1970)

Or, even better:

United States vs. Seeger (1965)

What's it about?

This case involved the application of the Universal Military Training and Service Act which exempted people from military service if their religious training or belief makes them opposed to such service. It defined appropriate training or belief as an individual's belief in a relation to a Supreme Being involving duties superior to those arising from any human relation, but [not including] essentially political, sociological, or philosophical views or a merely personal moral code." One person involved in the suit believed in a supreme reality while another believed in a universal reality. Neither of these were included in the class of beliefs covered by the Act. They claimed that the law unfairly did not exempt non-religious conscientious objectors and that it discriminated between different forms of religious beliefs.

The Court found for Seeger. UNANIMOUSLY.

Posted by: Alderaan on March 7, 2006 at 4:50 PM | PERMALINK

CM,

>
Yale probably wouldn't object to military recruiters as students either. The comparison is nonsense.
>

Um, it strikes me actually as a fairly relevant comparison, since I (admittedly a rank amateur) interpret Roberts's opinion as saying that rejecting someone as a student (and therefore a member of a university) would have a greater claim to Constitutional protection than would keeping a recruiter off the school grounds. Based on Roberts's analogies in the decision, I would say that it is starkly relevant to tell a law school, "Whom you accept as a student is more expressive of your beliefs than whom you allow to recruit at your school, and therefore if you are actively recruiting Hashemi to enroll in your school you are expressing more hatred of homosexuals than if you allow military recruiters onto your campus." And frankly, I think that would be a perfectly fair thing to say, by common sense as well as by analogy with parades and Boy Scouts.

Posted by: Ken Pierce on March 7, 2006 at 4:57 PM | PERMALINK

It's equitable in the sense that it has never been along the lines of "All Jews report for service" or "Party Members only". All healthy male citizens of a certain age could be called.

"Could be". Not "were". The actual selection criteria, particularly for more recent iterations of the draft, have not been particularly equitable.

This case involved the application of the Universal Military Training and Service Act which exempted people from military service if their religious training or belief makes them opposed to such service.

Incorrect, from the decision itself:

These cases involve claims of conscientious objectors under 6 (j) of the Universal Military Training and Service Act, 50 U.S.C. App. 456 (j) (1958 ed.), which exempts from combatant training and service in the armed forces of the United States those persons who by [380 U.S. 163, 165] reason of their religious training and belief are conscientiously opposed to participation in war in any form.

Your summary has replaced "combatant training and service in the armed forces of the United States" with the less accurate "military service" (not all people except from combatant service were excused from military service altogether under the act), and, even if it was accurate, would be off point, since the case was about who was qualifeid for the exception. Under the act, those exempt from all military service (a smaller group than those exempt from combatant service) were subject to alternative, non-military, compulsory public service for the same length of period that a draftee was obligated to military service, as I said.

Pointing me to cases interpreting who is eligible for the statutory exemptions from combatant service is hardly any kind of rebuttal to my claim that those exemptions are not exemptions from compulsory service, just diversions from one form of service to others. But thanks, anyway.

Posted by: cmdicely on March 7, 2006 at 5:07 PM | PERMALINK

meatss,
The feds withholding from state child welfare programs is a whole other kettle of fish than witholding from universities. In addition to big corporate links to universities, many schools are also invovled in federal research projects - including military. For instance, UC Berkeley runs the Los Alamos lab. MIT has deep connections to the defense industry. Do you think that the feds would enforce penalties even at these schools - it just makes no sense. The feds would risk alienating these institutions and those who provide vital research on mission critical systems.

Posted by: jman on March 7, 2006 at 5:14 PM | PERMALINK
For instance, UC Berkeley runs the Los Alamos lab.

Well, technically, the University of California runs the Los Alamos, Lawrence Livermore, and Lawrence Berkeley National Laboratories, under contract to the Department of Energy. Its not actually the Berkeley campus that runs the labs.

Do you think that the feds would enforce penalties even at these schools - it just makes no sense.

Possibly; IIRC, some prominent Republicans pushed hard to get Los Alamos opened up for more competitive bidding (which UC managed to win in partnership with Bechtel), and they probably would love to be able to have an excuse to hand the contract over to the team led by the University of Texas that was the main competition in that bidding.

It may or may not make policy sense, but it makes political sense.

Posted by: cmdicely on March 7, 2006 at 5:32 PM | PERMALINK




 

 

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