Thoughts on Rumsfeld v. FAIR

“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. That is, of course, unless Congress exceeds constitutional limitations on its power in enacting such legislation. 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…. This case does not require us to determine when a condition placed on university funding goes beyond the “reasonable” choice offered in Grove City and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly.”

2. Historical Problems with Military Recruitment. There are well-recognized historical reasons for the sweeping powers given to the federal government in the realm of military affairs. Read Joseph Ellis’ biography His Excellency: George Washington and you cannot help but be struck by the overwhelming struggle Washington faced in securing adequate resources and recruits to effectively wage war against the British. One of the central objectives of the new Constitution was to change all that. Here is how Akhil Amar puts it in his recent book America’s Constitution (p. 114-15):

“Under the Articles of Confederation, Congress could raise troops only by ‘requisition[ing]’ each state for its proportionate ‘quota’ of men determined by white population. Each state legislature retained the power to ‘raise, … cloath, arm and equip’ its troops, and to appoint all regimental officers ‘of or under the rank of colonel.’ To raise the funds to pay for these men and material, Congress once again had to rely on state governmental compliance with a quota system, this time based on wealth. The requisition system failed miserably and came perilously close to handing victory to the British in the Revolutionary War. With inadequate mechanisms to enforce states’ obligations, many states held back, hoarding resources for local defense despite more urgent need for them elsewhere on the continent. The challenge facing America in the late 1780s, then, was to find a way to strengthen its military structure against foreign foes without imperiling domestic liberty. Breaking with the old requisition system, the new Constitution empowered the central government to raise its own army and navy without state intervention, to impose taxes and duties on individuals to pay for these armed forces, and to appoint all professional military officers.”

The importance of effective military recruitment is one of the central features of the constitutional authority granted to Congress in the realm of national defense. But that does not answer why military recruitment is so critical today. An examination of our current geopolitical situation underscores the importance of effective recruitment of military lawyers.

3. The Government Interest in Recruiting Military Lawyers. There is no doubt a compelling government interest in effective recruiting of military lawyers. The Court emphasized “that Military recruiting promotes the substantial Government interest in raising and supporting the Armed Forces–an objective that would be achieved less effectively if the military were forced to recruit on less favorable terms than other employers.” It did not elaborate.

But examine the briefs and a clearer picture emerges. The role of military lawyers was particularly well described in the amicus brief by the Judge Advocates Association (2005 WL 1351113):

“During … combat operations, judge advocates provide[] critical international law support involving such topics as the legal basis for the use of force, rules of engagement, capitulation, parole and local cease fire agreements, civilians on the battlefield, war crimes investigation, negotiations with armed groups, the wearing of non-standard uniforms, and child soldiers on the battlefield. Judge advocates are critical and much relied upon members of the military commander’s staff, and move when and where their units move…. The enforcement of the Solomon Amendment is essential to supporting and maintaining the military, especially considering the “increasingly challenging recruiting environment” brought about by the Global War on Terror. For example, with the enforcement of the Solomon Amendment, Air Force Judge Advocates were able to interview “approximately 2,275 law students representing almost all of the 188 ABA-accredited law schools in the United States.” If enforcement of the Solomon Amendment were prohibited, it would create a significant obstacle to Judge Advocate recruiters, one not experienced by other employers, thus placing the military at a disadvantage…. If this honorable Court prohibits the enforcement of the Solomon Amendment, the Armed Forces will have to select from a smaller pool of applicants, which will impair the military’s “ability to convey the great advantages and opportunities of a legal career in the Armed Forces,” and ultimately result in accession of less talented Judge Advocates. “The military cannot afford to recruit and access less talented candidates, given the complexities and demands of today’s military environment.”

This is a powerful argument. Think about the role of the military lawyer on the field when our troops face questions of the legality of military conduct. Think about the need to have the best possible military lawyers to advise soldiers on the ground. Think about Geoffrey Corn’s observation that Abu Ghraib serves “as a powerful reminder to all those who serve in uniform … that in the brutal and dangerous realm of warfare, the law of war provides a barrier between the necessary infliction of harm associated with conflict and the devolution into the unacceptable realm of the infliction of suffering for personal and often perverse reasons.” Do we really want to shield recruiters from the best and the brightest law students in the country? Don’t we want our best lawyers to fill the ranks of our military and provide invaluable counsel about the legality of military conduct?