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Chief Justice Roberts, Meet Obiter Dicta



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Early reports and commentary about the Rumsfeld v. FAIR ruling, upholding the Solomon Amendment, make a big deal out of some remarks Chief Justice Roberts made about the scope of Congress’s power to impose its open-to-recruiting mandate on universities.

The case concerned the Congress’s conditioning of federal funds for universities on the openness of those universities to the activities of military recruiters, on terms at least equal to those enjoyed by the best-treated employers who visit university campuses. But at one point Roberts seemed to say that Congress could have required such favorable terms for military recruiters directly, without using the lever of federal funding and the threat of its withdrawal for noncompliance. (For reports that this was in fact announced as a legal rule in the opinion, see here and here and here and here.)

I’m not sure I’m ready to read the opinion that way–or to agree with the new chief justice if he really did mean to say that. First, I would note that Roberts was writing in the context of the “unconstitutional conditions” doctrine, which holds that one cannot be required to surrender one’s constitutional rights as a condition of enjoying a governmental benefit. According to the chief justice, the best way to begin reasoning about whether an “unconstitutional condition” has been imposed is to ask whether the right claimed in the case would be violated by a law directly effecting the same result as is achieved by the policy of conditioning benefits to effect that result. In this context, Roberts says that “the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement.”

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.

The case for reading Roberts more expansively, as actually affirming a congressional power to impose such a mandate, relies chiefly on an earlier remark in his opinion:

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.

But literally, “no dispute in this case” means, well, just that. The Rumsfeld case involves no argument on either side about the scope of Congress’s power to “raise and support Armies.” I’m still not quite ready to say that the chief justice positively affirmed a power of Congress to tell universities they must permit military recruiters on campus whether they accept federal funds or not.

Here’s why. 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.) 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.

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.)

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?

In another statement that could either mislead or alarm (depending on what he really meant), the chief justice said this: “Under . . . 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.” This is a sentence that doesn’t say enough, in my opinion. I’d be happier if it read, “if Congress could not, owing to the First Amendment, directly require universitities . . .” If he didn’t mean this narrower statement–if this is not a “friendly amendment” of his opinion–then I’m troubled by the breadth of what Roberts is saying.

In the end, Roberts’ widely reported remarks on this matter can be read in three possible ways:

1. As implicating nothing at all about any power of Congress to impose a no-strings open-to-recruiting mandate, except to underscore that no violation of freedom of speech would occur under such a regime.

2. As suggesting but not positively holding that such a power exists, and so offering only obiter dicta on the point, a nod toward a probable rule in the law that is not necessary to the decision at hand.

3. As positively holding for the existence of such a power, though the question was not briefed or argued, nor is it necessary to decide.

These three possibilities are in descending order with respect to their acceptability. Number 3 is more than a careful thinker like John Roberts should be read as saying. Even number 2 is rather too incautious for my taste. I think the chief justice might reasonably be called upon to clarify this business in the next case that presents an opportunity.



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