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View Diary: DADT: End the ROTC ban? Not so fast, NY Daily News! (71 comments)

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  •  I don't disagree (10+ / 0-)

    but it also bumps up against the University's right to decide whether it "makes sense" for their institution to participate.

    I'm  not a fan of using Federal funds to bully institutions and people which is generally the argument for lifting the bans.

    "You can't hardly separate homosexuals from subversives."--Senator Kenneth Wherry, 1950.

    by Scott Wooledge on Mon Jan 03, 2011 at 09:01:18 AM PST

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    •  Whether it "makes sense" or not ... (3+ / 0-)
      Recommended by:
      psychodrew, Clarknt67, KroneckerD

      ... is somewhat irrelevant given the Solomon Amendment.  Yes, it's bullying, but Congress uses funds to bully for good reasons too.

      •  Ah, the Solomon Amendment (6+ / 0-)

        That takes me back to my time in private practice.  I filed an amicus brief in the Third Circuit in FAIR v. Rumsfeld.  I was thrilled when that court struck down the Solomon Amendment.  The victory was brief, though, and we lost in the U.S. Supreme Court.

        Congress may use funds to bully for good reasons, but the Solomon Amendment is not an example of "good bullying."

        Maladie d'Amour, Où l'on meurt d'Aimer, Seul et sans Amour, Sid'abandonné

        by FogCityJohn on Mon Jan 03, 2011 at 09:38:54 AM PST

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      •  The Solomon Amendment, and the resulting... (3+ / 0-)

        ...Pacifist Purges of the university system, is why I don't have a BA, and never will.

        (How many amendments does this guy have, anyway?)

        illegal, n. A term used by descendants of European immigrants to refer to descendants of Indigenous Americans

        by ricardomath on Mon Jan 03, 2011 at 09:48:04 AM PST

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      •  I have a problem.. (0+ / 0-)

        ...with the view that Congress could compel the universities to allow the military on campus; the outcome, as Chemerinsky noted, is ironic when you consider the holding of both BSA v Dale and  Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston.  The Supreme Court is teetering on the edge of declaring that anti-gay associative conduct enjoys greater constitutional protection than pro-gay associative conduct; alternatively, they are intruding too much into the character of the organizations being regulated by local, state or federal governments.  There's something amiss here.

        And I have some of the same problems with ADA decisions and gaming.  

        For there our captors demanded of us songs, And our tormentors mirth, saying, "Sing us one of the songs of Zion."

        by Alec82 on Mon Jan 03, 2011 at 11:34:13 AM PST

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        •  I'd love to read a post (1+ / 0-)
          Recommended by:
          Alec82

          Where you and Adam debate the relative merits and failings contrasting those decisions.

          "You can't hardly separate homosexuals from subversives."--Senator Kenneth Wherry, 1950.

          by Scott Wooledge on Mon Jan 03, 2011 at 11:37:58 AM PST

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          •  We are both a little more.. (3+ / 0-)
            Recommended by:
            psychodrew, Predictor, Clarknt67

            ....libertarian (or not, depending on your view) than FogCityJohn, as I have no problem with Congress withholding funds from private universities if they refuse to accept recruiters.  What I do have a problem with is the argument that Congress may directly compel the universities to accept recruiters, which the Supreme Court (in its infinite wisdom) held that Congress could do.

            There is a substantial difference between the use of incentives and the blunt instrument endorsed by the Supreme Court in that opinion.

            For there our captors demanded of us songs, And our tormentors mirth, saying, "Sing us one of the songs of Zion."

            by Alec82 on Mon Jan 03, 2011 at 12:03:23 PM PST

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            •  Very broad strokes, I know, but (3+ / 0-)
              Recommended by:
              psychodrew, Predictor, Alec82

              I think the BSA decision was BS. I think if a private org was getting free rent in a gov't building and discriminating against Jews or Blacks, it would have been an open and shut case and probably never would even made it to the SCOTUS. (Well clearly not, we ended those situations with the Civil Rights Act.)

              But the SCOTUS essentially validated the view that there is discrimination we, as a country condemn and discrimination we abide.

              We'll get another bite at the apple, I'm sure. That one was rotten.

              "You can't hardly separate homosexuals from subversives."--Senator Kenneth Wherry, 1950.

              by Scott Wooledge on Mon Jan 03, 2011 at 12:07:05 PM PST

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        •  It's two separate issues, isn't it? (0+ / 0-)

          Congress' ability to use the spending power to strongly urge private organizations in a particular direction is separate from its ability to compel their action through direct bans on private behavior.  

          Congress could just as easily use its spending power to bar aid to states which threw roadblocks into students' ability to form Gay-Straight Alliances in public schools ... which, in fact, it does.

          •  A total layman's impression (0+ / 0-)

            may conclude there is always a perfectly understandable reason why the decision to continue a policy of discrimination is always the correct conclusion to come to, regardless of how you approach the question.

            I am totally teasing you Adam, I know full well that is not your personal take on it.

            But it may the thought process that can lead us to lose faith in a just system.

            "You can't hardly separate homosexuals from subversives."--Senator Kenneth Wherry, 1950.

            by Scott Wooledge on Mon Jan 03, 2011 at 11:54:21 AM PST

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          •  Well it would be.. (0+ / 0-)

            ...a completely separate issue, but for this gem:

             Although there are limits on Congress' ability to condition the receipt of funds, see, e.g., United States v. American Library Assn., Inc., 539 U. S. 194, 210, a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment's access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds. Pp. 8-20.

             That would be Part III of the decision, which is the most interesting application of judicial "minimalism" I think I have ever seen.

            For there our captors demanded of us songs, And our tormentors mirth, saying, "Sing us one of the songs of Zion."

            by Alec82 on Mon Jan 03, 2011 at 12:21:24 PM PST

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            •  You may be over-reading this. (0+ / 0-)

              That the First Amendment doesn't prevent Congress from doing so doesn't mean there aren't other restrictions on Congress' ability to impose this by fiat.  Solomon Amendment might be seen as a natural outgrowth of the Congress Can Regulate The Military stuff, but on non-military matters where's the authorization? Commerce Clause?

              •  It is horrid (0+ / 0-)

                I am sorry, but the idea that Congress has the power to compel private universities to accept the recruiters, that they could do it directly without the use of the stick and carrot...I find that very problematic, particularly in light of the Hurley and Dale decisions.  

                For there our captors demanded of us songs, And our tormentors mirth, saying, "Sing us one of the songs of Zion."

                by Alec82 on Mon Jan 03, 2011 at 12:43:24 PM PST

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                •  But what if ... (0+ / 0-)

                  ... this is truly limited to the military context?

                  •  In principle.. (1+ / 0-)
                    Recommended by:
                    Clarknt67

                    ...I reject that; I don't think that can possibly be right, except under exigent circumstances.  

                    And I don't believe that it would be limited; the military is a very big thing.  Will the Supreme Court be intervening to determine that the university may or may not object to defense contractor research being conducted on campus, even when they go to great lengths to cut off federal funding?

                    For there our captors demanded of us songs, And our tormentors mirth, saying, "Sing us one of the songs of Zion."

                    by Alec82 on Mon Jan 03, 2011 at 12:51:03 PM PST

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            •  indeed. (0+ / 0-)

              That's from the syllabus; here's what the decision says:

                 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. That is, of course, unless Congress exceeds constitutional limitations on its power in enacting such legislation. See Rostker v. Goldberg, 453 U. S. 57, 67 (1981) . But the fact that legislation that raises armies is subject to First Amendment constraints does not mean that we ignore the purpose of this legislation when determining its constitutionality; as we recognized in Rostker, “judicial deference U is at its apogee” when Congress legislates under its authority to raise and support armies. Id., at 70.

                 Although Congress has broad authority to legislate on matters of military recruiting, it nonetheless chose to secure campus access for military recruiters indirectly, through its Spending Clause power. The Solomon Amendment gives universities a choice: Either allow military recruiters the same access to students afforded any other recruiter or forgo certain federal funds. Congress’ decision to proceed indirectly does not reduce the deference given 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.

      •  I meant this challenge (1+ / 0-)
        Recommended by:
        Predictor

        sincerely, as I'd enjoy reading smart legal minds take on this. The challenge.

        "You can't hardly separate homosexuals from subversives."--Senator Kenneth Wherry, 1950.

        by Scott Wooledge on Mon Jan 03, 2011 at 11:39:02 AM PST

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