Tuesday, March 07, 2006

Did Chief Justice Roberts mean that?

I stated yesterday that I thought C.J. Roberts implied that the Congress could pass a law that forced universities, even those that did not accept federal funds, to allow equal access to military recruiters. Matthew Franck makes the argument at Bench Memos that he didn't. I am still not sure that the Chief did intend to state that but I find Matthew's argument very weak.
If Roberts was speaking carefully, he could be read (equally carefully) as saying only that a direct federal statute requiring universities to open their doors to military recruiters (without relying on strings attached to federal funding) would not infringe on the freedom of speech -- while the chief would be saying nothing at all about whether Congress otherwise possessed lawful authority to impose such a mandate on universities directly.
I accept this as an entirely viable possibility and was the reason that I said I wasn't sure what the intent was, especially since even though the opinion is written mostly without frivolous legal-ease it wasn't entirely clear which way we should read that portion of the opinion. Matthew and I fully agree that the argument for intent to declare a direct requirement constitutional is in the "broad and sweeping" description the Chief gives earlier in the opinion in describing Congresses power to raise armies. This is where his argument and I part company.
Even the most expansive reading of "raising and supporting armies," augmented by the most latitudinarian reading of the "necessary and proper" clause, would hardly permit the U.S. Army to station a recruiting sergeant in my front yard all day long, to accost my young neighbors with offers of great career options if they sign on to be soldiers. (And if he doesn't move in and spend the night, Sarge is not "quartered" in my house contrary to the Third Amendment.)
While I don't disagree with the statement, it isn't relevant. There is something special about a school, even if private, in recruitment. That is why private companies recruit there and not on your front yard. Further, the Chief did not say that Congress could require a college or university that did not allow other recruiters access to give access to the military. This is a non-argument.
Or try it another way. It's one thing for Congress to create a draft and require all eligible young men to register for it. It would be quite another thing for Congress to require me, as a teacher, to check on the draft-registration status of young men in my classes.Um, not to put to fine a point on it, but not only can they, they have. Because of federal law I had to show my up to date draft registration card to enroll in college. As far as I know this is still the law of the land. Further, I don't believe you can avoid it by not accepting federal dollars. I am not sure about that last bit as it didn't come up for me, but I most certainly had to prove I had registered to get into the classroom. They don't explicitly require a teacher to double check the draft registration because presumably every young male in your class is registered with the school. As a practical matter, therefore, all college professors can guarantee that the young men over 18 in their classes have registered.
And what difference is there at Harvard? It's a private entity with its own property rights, entitled to govern its own affairs, and not as such to be dragooned into serving the government's recruitment purposes unless it accepts some quid pro quo as an institution. It's not even clear that public entities -- like state universities -- can be so dragooned, since they are not arms or creatures of the federal government. (I am not necessarily arguing for a judicial power to gainsay the sorts of laws I've mentioned, but I do think they are beyond any proper understanding of congressional authority.)
Again, a non-argument. General Electric is a private entity with its own property rights, entitled to govern its own affairs, etc. too. Congress regularly passes requirements for access, hiring practices, trade practices, manufacturing requirements, etc that General Electric can't ignore just because they are getting their money from actual customers and not the federal dole.
Does it make a difference that Roberts is only talking about the mandate of equal access being imposed on universities and their law schools? If so, my hypotheticals aren't apposite. But here's one that would be. If I run a career forum, off-campus in a rental property at my own expense, for political science majors to explore jobs they might seek after graduation, can the Congress dictate that I let in military recruiters on terms equal to everyone else I invite, even though I did not wish to invite the military? If you say no, what changes when I move it on campus and get my university to sponsor and fund it?
I say no and yes! In fact I would be surprised if Congress hadn't already said so. Again, I am not a lawyer, but the government routinely forces private companies to not only do business with them but to guarantee them a price no higher than their best customer. The exception to this rule is religious freedom, an exception found also in the text of the Solomon amendment. As a counter example, let's talk about something more mundane. Let's assume I operate a private and independent pen manufacturing and sales firm. I build super heavy duty pens. People like my pens because, while pricey, they hold up well to the stress of heat/cold/moisture/pressure/etc. Can I refuse to sell pens to a guy in uniform? How about a politician? How about the government/Pentagon? I don't think so. The government can't force me to be in that business but once I have chosen to do so they can regulate all sorts of things about it, including forcing me to sell to them.

The tougher question would be can Congress force military recruitment access on schools or businesses that don't allow other recruiters? Is the power to raise an army so broad that Congress could force a private institution to do something outside of it's normal course of business. For example, the military currently has a desperate need for folks who read and speak Arabic. Could the Congress force private businesses to make contact lists of people who work for them that speak Arabic available to the Penatagon so that the Pentagon can attempt to recruit them? I would hope not and the Chief certainly did not imply in any way that they can.

Again, I am not certain that Chief Justice Roberts intended to imply that this power is inherently constitutional, but I see no viable argument against that position in Matthew's post. In fact, his examples tend to enforce the idea that such a power, if exercised, would be constitutional.


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