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Friday, December 09, 2005 

Rumsfeld v FAIR Oral Argument

Last night, I listened to the audio recording of the oral argument for Rumsfeld v FAIR, the case about the Solomon Amendment. I know, I live a wild and exciting life.

Before I start discussing it, I have to make a disclaimer. I have requested (and received) information concerning the Army JAG program. I am considering applying after graduation to become a military lawyer. Have your bias detectors on maximum.

I think that it's pretty clear from the oral argument that the Solomon Amendment is here to stay. At most, FAIR will get Justices Souter and Ginsburg to support them, but I think that's questionable. The Chief, Justice Scalia, and Justice Kennedy seemed to be totally unconvinced of FAIR's position. SG Clement lost Kennedy for a moment at the beginning with one of his arguments, but I think that the Solicitor General just made a slip up.

The Justices did not buy the argument that conduct can become speech simply by asserting some underlying reason for the conduct (as if "meaning" turned conduct into protected speech). Justice Stevens remarked that you can't justify not paying your taxes by say that you don't agree with a war.

If I remember correctly, the Chief was the one who brought up South Dakota v Dole. That case upheld conditioning the receipt of federal highway funds on a state raising its drinking age to 21. I remembered that case from Con Law and thought that the comparison was quite apt. Here, the law schools are in the same position as the states. They don't have any right to the federal funds. Congress can demand that they meet certain conditions, and if they do, then they get the funds. It's all about the Spending Power.

Another interesting aspect of this is the extent of the Spending Power. FAIR is asserting that it does not go this far. Oddly enough, they are also arguing against a sizable amount of civil rights legislation. The feds have used the Spending Power as a tool to support civil rights by cutting off federal funds for those who do not comply. The Court has given Congress a wide berth with spending.

Justice Scalia also brought up the fact that the Solomon Amendment can easily survive judicial review based on the Congressional power to raise armies. That's sort of the trump card here. It's an explicit power of Congress, and the Court defers to them to as far as how they do it.

Hey, I sympathize with FAIR... sort of. But it's very simple. If you do not agree with the policies of the military, refuse the funding. Take a principled stance and accept the financial consequences.

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  • I'm Steve
  • From Milwaukee, Wisconsin, United States
  • "There is only one basic human right, the right to do as you damn well please. And with it comes the only basic human duty, the duty to take the consequences." P.J. O'Rourke
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