A Stitch in Haste

Many libertarians refused to get uppity about Rumsfeld v. FAIR, 04-1152, because they believe that government subsidizing colleges and universities with taxpayer dollars is an improper activity to begin with. They couldn't be bothered with nuanced differential applications of the Spending Power such as those imposed by the Solomon Amendment. To them, it's just all bad, period.

Many anti-libertarians, meanwhile, refused to get uppity about Rumsfeld v. FAIR because of what might be called the "Piper Doctrine" — as in "He who pays the piper calls the tune..." If the government is giving money, then what's wrong with attaching strings?

Fair enough, I suppose.

But can't we all just get uppity now?

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." Congress' power in this area "is broad and sweeping" ... and there is no dispute in this case that it includes the authority to require campus access for military recruiters.
...
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.

Translation: Congress doesn't even need the Spending Power or the "Piper Doctrine." They can simply commandeer colleges and universities wholesale under the power to raise and support armies. Colleges can be forced to accommodate the military, with or without federal money.

Or so says Chief Justice Roberts, speaking for a unanimous Supreme Court.

So much for the libertarians who couldn't be bothered about this issue.

And so much for those who said that "schools could just turn down the funding if they really cared so much about their principles." No, it wasn't quite that simplistic after all.

Of course, these days the Court considers just about any and every Article I power to be essentially plenary — just look at the Court's Commerce Clause jurisprudence. Still, in these War on Terror times the notion that Congress can commandeer our private civic institutions and enjoy a presumption of constitutionality simply by parroting "it helps the military" is almost as frightening as the Bush Administration's claim that the Commander-in-Chief power authorizes warrantless wiretapping of Americans in America.

The Dark Side clouds everything...

Similar observations from How Appealing, SCOTUSblog.

(Note: I hope to address the question of "Rumsfeld v. Dale" tomorrow.)