John Roberts on Unlimited Warfare (Rumsfeld v. FAIR on the Solomon Amendment)

Rumsfeld v. FAIR,” by John Roberts et al, Supreme Court of the United States, 6 March 2006, http://www.supremecourtus.gov/opinions/05pdf/04-1152.pdf.

John Roberts isn’t just right on . He also is ready to lead the Court of a nation in an unlimited war.

An cautiously alarmed post at Bench Memos, a blog of the the libertarian/conservative National Review, made me kick myself for not reading the decision earlier. Rumsfeld v. FAIR is the case that challenges the Solomon Amendment, which denied federal funds to schools that prohibit from recruiting on campus…


Living in South Dakota, which suffers under the federal thumb of highway money, I had little sympathy for the colleges. If South Dakota’s 10th amendment rights can be trampled on in the name of some Liddy Dole scheme, then I don’t see why Georgetown should hide behind the first. Yet even I was stunned by the formulation Chief Justice Roberts used to force the colleges to accept ROTC.

Anything that begins like this:

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.

has to be good.

And good it is. Roberts continues, saying that if Congress couldn’t have forced the universities to accept recruiters without compensation, they can’t force universities to accept with them compensation:

Under this principle, known as the unconstitutional conditions doctrine, the Solomon Amendment would be unconstitu­tional if Congress could not directly require universities to provide military recruiters equal access to their students

And because the opinion requires the universities to accept the recruiters, it’s clear what the Supreme Court believes.

This is a good thing. We are in a Long War. Chief Justice Robets has a lifetime appointment. Hopefully he will be able to lead the Courts through it.