Monday, March 06, 2006
I've only just heard the news reports of the Supreme Court decision in Rumsfeld v. FAIR announced today (the military recruiting case), and haven't yet read the opinion, but will offer some reactions. I had written earlier that if I were a justice, I would rule in favor of Rumsfeld in this case, on principle and against my preference in the outcome. While the announced decision in favor of Rumsfeld is not a surprise to me, there were a couple of surprises related to it. First, that the decision of the Court was unanimous. Second, that the decision of the Court was not found in the "power of the purse". The Court went beyond "he who pays the piper calls the tune" to state that Congress could have directly compelled military recruiter access, without conditioning it on the acceptance of government funding, based on their constitutional power to "raise and support armies". I have to admit I hadn't been considering it that way, but I don't disagree. Certainly if Congress has the power to compel private citizens to serve in the military, then they have the power to compel private organizations to cooperate in recruiting efforts. Some are already arguing about whether this decision gives the government merely equal access to law school recruiting, or whether it actually gives preferential treatment. What such critics seem to be missing is that the government could legitimately compel preferential treatment. For example, as a matter of law, the government requires contractors doing business with them to give them the best price (i.e., it is illegal for any company to give a better deal to any other customer than they give to the government). This seems like similar "preferential" treatment to what is being demanded for the military recruiters. I would like to see law schools be free of this compulsion, but I reluctantly agree with the Court that it is a matter for Congress to decide. Meantime, let's protest the military's despicable discriminatory policy, and lobby our Congress to get it changed. That's the way forward.