As for direct authority versus spending clause, I don’t think either path clearly qualifies as the narrower holding and therefore the preferable ground under the rule of Liverpool, New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U. S. 33, 39 (1885). A holding that the spending clause authorizes this rule regardless of whether Congress has the authority to legislate it directly would also have broad implications.

Posted by: Kent Scheidegger at March 6, 2006 08:20 PM”

My point is, why would that court reach an issue necessary only in a hypothetical case, as it did with its power to raise armies argument in FAIR, rather than defer that decision to another day. The spending power argument was more than sufficient.

The Court didn’t rely on the Spending Clause, so it doesn’t really add to the unconstitutional conditions doctrine. The decision seems to rest on the government-can-do-anything-for-the-military rationale of O’Brien, which is cited favorably. The mention of September 11 early in the opinion also limits its importance to a historical moment. Forty years from now, when the don’t ask, don’t tell policy is as distant a memory as Vietnam era draft-card burning is for us now, will this case be seen as a major development in the law? I doubt it.

Although the outcome of the case wasn’t surprising, I was disappointed by one portion of the otherwise well-crafted opinion for the Court. I wasn’t persuaded by the Chief’s treatment of the argument in the Columbia professors’ brief–i.e., that the denial of on-campus recruiting to the military did not conflict with the plain language of the Solomon Amendment because the military was being treated in the same manner as any other recruiter that failed to comply with the schools’ non-discrimination policy.

The Court appears to adopt the (entirely plausible) view that the intent of the Solomon Amendment was broader than the plain language. But this part of the opinion appears to me to rely on an “ipse dixit.” It doesn’t give any legislative history or “surrounding circumstances” rationale for that view. Perhaps that’s because Scalia wouldn’t join an opinion with legislative history, and the Chief wanted a unanimous opinion if at all possible. But it’s not very satisfying. I thought the plain language argument was a clever and potentially serious escape hatch if the Court wished to affirm the 3d Cir. on different grounds. Obviously, there wasn’t such a desire on the Court.

“I shall be telling this with a sigh/
Somewhere ages and ages hence:/
two roads diverged in a wood, and I –/
I took the one less traveled by,/
And that has made all the difference./”
[copyright Frost family heirs; SCOTUSblog orthography apparently deletes hard-returns, so / indicates new line].
Perhaps the next SCOTUS decision in a related matter will include the social argument, from some campus which will have opted to refuse the government monies.
On a lesser scale, there are high school districts in CA which have banned all military recruitment.
Truly a clearcut decision by SCOTUS this time, but FAIR took a fragmented argument as its sole implement, when issues are deeper far.

Opinion p. 5: “The statute provides an exception for an institution with ‘a longstanding policy of pacifism based on historical religious affiliation.’ §983(c)(2).”

It would appear that your hypothetical will remain hypothetical. Congress has no intention of doing what you suggest.

There is already ample precedent under the spending power that could have supported the ruling and also further clarified whether that power truly is plenary or must be in support of some other Congressional power. (Surely, plenary power is closer to the truth, but cases like this muddy the issue).

It isn’t clear that the raising armies power adds a lot to the first amendment analysis, either, as the court looked to inherently v. not-inherently expressive conduct, and whether the compelled speech was retaliatory, rather than on the basis of the spending in the other cases. Was this necessary to bring some judge into a unanimous opinion, and if so, who and why? For example, was this stance necessary to bring Scalia and Thomas into the fold despite their skepticism of a plenary spending power, and if so, does that signal that they might part ways in some other spending power-compulsion case?

As it stands, FAIR v. Rumsfield now resolves, at least with dicta, issues quite unlike those involved with the spending power at the heart of the case.

For example, suppose a Quaker school like Antioch decides to reject all federal funding. Does the power to raise armies trump its First Amendment and property rights to exclude military recruiters from its campus, and if so, shouldn’t it be entitled to compensation for the taking? FAIR v. Rumsfield apparently holds that it does trump and isn’t a taking, even though by definition schools impacted by the Solomon Amendment, unlike a hypothetical Quaker school, are not consciencious objectors as a matter of policy, as they already receive military funds, and freedom of religion, another first amendment right, has historically been viewed to provide some insulation against the power to raise armies as expressed in the military draft. Does FAIR give organizations lesser rights than individuals in the face of that Congressional power?

Surely the justices can’t have been unaware that they were resolving issues well beyond the scope of the case with their reasoning, so one has to presume that there was a good [political] reason for this decision.

1) I think that you are being charitable when you suggest that the motives here are simply to create the best military possible. Many of these people are anti-military to the core.

2) I think that I should have said “ivory-tower attitudes” rather than thinking. I don’t mean to suggest that people who make specific arguments in favor of full integration of homosexuals into the armed forces are necessarily “ivory-tower” thinkers. Rather, there are very good arguments that the military should not care about sexual orientation–I happen to disagree, but that’s not really relevant.

What I was getting at is the arrogance of these individuals who refuse to accept the considered view of the people’s representatives on this issue. These people, instead of working within the democratic process to change the “don’t ask, don’t tell” policy, have decided to adversely impact armed forces recruiting; in other words, they are willing to impede military readiness because Congress doesn’t see things their way. That, Dan, is, in my view, reprehensible. Far from being team players–they are prima donnas. And to dress up this arrogance as concern for the military being the best that it can be is disingenuous.

Unless they thought they were going to get at least a significent minority of the SCOTUS Justices to agree with them, this suit was an exercise in self-absorbtion and hubris. I am inclined to credit Dan’s point that the suit was not intended to be an example of self-absorbtion or ivory tower thinking.

The fact that not one Justice agreed with them shows rather conclusively that while sincere, they simply exercised poor legal judgment.

Somehow, this could be more damaging to their collective professional competence and reputation than to their sincerity.

The object lesson they should impart to their law students is this:

If you are going to make a highly publicized federal case out of a political issue, at least make a analytically respectable argument.

Sometimes failures teach us more than successes.

Perhaps the law schools leading the fight against the Solomon Amendment are the real “team players.” They want the military to get the best research AND the best troops and JAG lawyers. If those schools and their parent institutions decided to bar recruiters until “Don’t Ask, Don’t Tell” was repealed, forcing DOD to cut off funds for particle accelerators, anti-bioterror
and cancer research, Congress could then decide what the American people want and act accordingly. I’m guessing defense and medical research are more important to the majority of Americans than excluding gays from the military. Under Solomon, however, we won’t get to have that debate unless a group of major research universities takes the risk of losing its research funds (which, as has been discussed above, isn’t going to happen because the law is cleverly coercive by design).

Most importantly, as someone who has recently graduated from one of the law schools where the FAIR litigation began, I can assure you that this is a fight about principles of equality and fairness, not, as you (Federalist) put it, “self-absorbed” “ivory tower thinking.”