Any word on the oral argument in the compelled student fees
Mcconnellm at LAW.UTAH.EDU
Thu Nov 11 10:00:01 PST 1999
Thanks to Ann Althouse for the reports on the oral arguments in
Condon and Southworth. I wanted to respond to some of her
> I think it's clear that there is a majority on the Court that disagrees
> with Garcia, but I had thought they had chosen to go about protecting state
> interests in other ways (eg Printz, Seminole) and to leave Garcia in place.
I think this depends on what is meant by leaving "Garcia" in
place. The law at issue in Garcia subjected states to regulation with
respect to their participation as employers in interstate commerce,
on exactly the same terms that nongovernmental employers are
regulated. It therefore appears constitutional under New York/Printz.
But the reasoning in the opinion -- that the federalism-based
limitations on the enumeration of power are nonjusticiable -- is
obviously inconsistent with subsequent decisions (as well as previous
decisions), and is very hard to justify.
> As to Southworth, the student fees case,
> It seems crucial to the University's case to persuade the Court that the
> funding of student groups is analytically equivalent to building a
> speaker's platform: that it's a neutral forum. I think the Justices had
> difficulty believing that funding is like building a forum and believing
> that the system is handled neutrally.
> I attended a forum on the Southworth case here at the law school last month
> and heard the University's lawyer discuss the arguments. Then, it appeared
> that everyone was assuming that the system did hand out the money in a
> neutral way, though I was not sure how that issue had dropped out of the
This goes to the heart of the case as I understand it. The parties
have stipulated that the money is allocated neutrally. I think this
was a tactical error on the plaintiffs' part. The money is allocated
through a political process, which cannot possibly be neutral. Thus,
the case has been briefed and argued on the basis of a strange and
unnatural premise. What the Court will do about that is anybody's
guess -- though it is surely almost certain that the Court will
strike down the special treatment for the PIRG group, which seems
indefensible on any reading of the First Amendment.
-- Michael McConnell (U of Utah)
More information about the Conlawprof