Solomon's Army

Bashman reported yesterday that the Court has granted cert to the Third Circuit on the Solomon Amendment case. (Quick recap: Solomon Amendment ties Federal funding to schools with access granted to military recruiters). Carter offers his thoughts here. It is times like this that I wish Con Law was a required course for first years here at Boalt, but oh well. Moving on...

I think I agree with everything Carter says. Putting aside the legal questions for a second, recruiting from the colleges and universities that are now most opposed to the SA would be one of the easiest ways to effect change in the military. Furthermore, to the extent that the military should reflect our society as a whole, it is one of the best ways to get people to join who aren't necessarily looking to move "onward" as "Christian soldiers." I can go on ad nauseam about the disservice such an image does to our foreign policy.

But then there's the legal question. I'm almost certain the SCOTUS will uphold the SA, even under strict scrutiny. There's a constitutional provision for Congress to raise the armies and the navies, and the executive has the power of commander-in-chief (the argument may sound a tad too John Yoo-esque, but then taken to the other extreme the draft can be unconstitutional as a burden on the freedom of association if it were not for the Congressional and Executive war powers). Second there is a statute under which the Executive (DoD) operates, viz. the Solomon Amendment. Thus the Executive authority on this point is at its maximum (to paraphrase Justice Jackson's concurring opinion in Youngstown, and I think that opinion should be perused by anyone interested in the interaction of Congressional and Presidential war powers).

This leaves a vexing problem that I'm not so sure the SCOTUS will get to (questions presented has not yet been presented online...so I wait). But the trouble I see down the road is like any other slippery slope issue. ALREADY, the Federal lunch money leverage is being used at high schools to gain PERSONAL INFORMATION regarding students. This isn't having meetings with recruiters or taking the ASVAB, it's outright extortion to get phone numbers and addresses of students who "fit" a certain profile. There is a useful purpose to having military recruiters interview on campus to get future JAG lawers or other officers, but to essentially have schools be pawns of the DoD's recruiting efforts is a tad too much.