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

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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.

        •  Yes (0+ / 0-)

          It is every bit as bad as is implied by the syllabus.  

          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 12:44:28 PM PST

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