Law Professors Must be Regretting Even Bringing this Case

I have a feeling that the law profs who brought this case are regretting doing so. The law profs were upset about the ''mere presence of military recruiters" and now the court has gone on record that congress could require that the military be allowed to interview recruits even if there was no funding attached.

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 … is at its apogee” when Congress legislates under its authority to raise and support armies. Id., at 70. . . .

This case does not require us to determine when a condition placed on university funding goes beyond the “reasonable” choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. See Speiser v. Randall, 357 U. S. 513, 526 (1958) . 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.

Now I am sympathetic to one argument that the law professors made, but I would be a lot more sympathetic if they recognized that it applies whenever government funding has strings attached:

For the Faculty now to surrender to the Government's coercion--even to protect the University's finances--would inevitably erode all students' faith in the Faculty Members' commitment to treat them with equal respect and dignity.

The point that I would make is that if the government takes your money from you and then gives it back if you only use that money the way the government wants, that is coercion.


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