Solomon Amendment

Douglas Laycock DLaycock at law.utexas.edu
Tue Dec 6 19:26:01 PST 2005


Well, that's the trouble with tossing off short comments when one really should be working on other things.  Sorry.
 
Of course the existence of Article I power does not override constitutional limitations elsewhere.  So the unstated premise in my unfortunately short comment is that there's nothing to the constitutional argument -- that violating a law, and being immune from any penalties for that violation, is not a constitutionally protected means of protesting the law.  
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)

________________________________

From: Mark Tushnet [mailto:tushnet at law.georgetown.edu]
Sent: Tue 12/6/2005 9:23 PM
Cc: Douglas Laycock; Dellinger, Walter; Sanford Levinson; conlawprof at lists.ucla.edu; DavidEBernstein at aol.com
Subject: Re: RE: Solomon Amendment



And, by the way, surely it isn't the case that Congress's power to
raise is, in itself (or coupled with the Supremacy Clause),
sufficient to displace all constitutional limitations.  I thought that
was the lesson of Burns v. Wilson, among other cases.  Would it
be constitutional for Congress to exercise its power to raise
armies by drafting all and only those who voted for the
Democratic Party's candidate in 2004 (or by accepting into a
volunteer army only those who voted for the Republican
candidate in 2004?  The fact that the armed forces are involved
might affect the standard of review applied, but it can't possibly be
enough in itself to resolve the First Amendment, etc., claims
raised in FAIR (unless this country has a Constitution very
different from the one I thought it had -- not an impossibility, I
acknowledge).

----- Original Message -----
From: Mark Tushnet <tushnet at law.georgetown.edu>
Date: Tuesday, December 6, 2005 10:14 pm
Subject: Re: RE: Solomon Amendment

> I could be wrong. but I thought the point of the amicus brief was
> that law schools were in fact complying with the Solomon
> Amendment properly interpreted (that is, properly interpreted,
the
> statute required that law schools give access to military
> recruiters
> equal to that provded any other discriminatory employer).  That
> argument may be too cute, but if you were attracted to it, the
fact
> that Congress has the power to raise armies, etc., wouldn't
have
> anything to do with the case.  If Scalia's intervention was
> sufficient
> to deflect the argument, it can't be that  the justices discussing
> the
> amicus argument were all that serious about the argument.
> Content-class: urn:content-classes:message
> Content-Type: multipart/alternative;
>       boundary="----_=_NextPart_001_01C5FAD9.D9BAB0A1"
>
>
> ------_=_NextPart_001_01C5FAD9.D9BAB0A1
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>
> Isn't Scalia right?  I have long wondered why the power to raise
> armies, =
> together with the Supremacy Clause, isn't the end of the case.
> =20
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX  78705
> 512-232-1341
> 512-471-6988 (fax)
>
> ________________________________
>
> From: Dellinger, Walter [WDellinger at OMM.com]
> Sent: Tue 12/6/2005 5:59 PM
> To: Marty Lederman; Sanford Levinson; Douglas Laycock; =
> DavidEBernstein at aol.com; conlawprof at lists.ucla.edu
> Subject: RE: Solomon Amendment
>
>
> I will weigh in when I can.  for now, here's is Dahlia -- she links
> to =
> the HLR brief if you go to Slate.=20
>
> Justice Stephen Breyer cites one of the amicus briefs =
> <" target="l">http://www.law.harvard.edu/news/2005/09/
21_brief.pdf>
> in the case that =
> suggests that the law schools have not discriminated against
> military =
> recruiters, but rather have adopted an evenhanded policy from
which
> the =
> military seeks an exemption <"
> target="l">http://www.slate.com/id/2131465/> . For a =
> few moments several justices are in the thrall of the amicus
brief, =
> until Scalia reminds Clement that the Constitution grants
Congress
> the =
> power "to raise and support armies." Scalia wonders why that
isn't
> the =
> end of this case.
>
> =20
> Walter Dellinger
> O'Melveny & Myers
> 1625 Eye Street, NW
> Washington, DC 20006
> TEL:  (202) 383-5319
>
> ________________________________
>
> From: Marty Lederman [marty.lederman at comcast.net]
> Sent: Tue 06-Dec-05 5:36 PM
> To: Sanford Levinson; Douglas Laycock;
DavidEBernstein at aol.com; =
> conlawprof at lists.ucla.edu
> Subject: Re: Solomon Amendment
>
>
> I think Sandy's broader point is an important one -- namely, that
> the =
> government has been pitching this, and virtually the entire press
> corps =
> has been reporting it, as a case in which schools are
> discriminating =
> against the military and denying them equal access.  I think it's
> almost =
> certain the Court will uphold the law; but I think it's a salutary =
> development that at least some of the Justices seem to
understand =
> clearly that what the SA condition coerces is not equal treatment
> (as in =
> title VI), but an exclusive pro-military privilege -- an exemption
> from =
> the rules that bind everyone else.  Put that way, perhaps the
> public =
> support for the law --the "Military Gets an Exemption From the
> Basic =
> Rules That Apply to Everyone Else Act of 2001" -- would be a
bit
> more =
> equivocal.
> =20
> P.S.  I should have noted that the very first challenge to Clement
> on =
> the "equal access" question was from Justice Scalia, followed
by =
> Justices O'Connor, Kennedy and Breyer, and then Scalia again,
> insisting =
> that Clement had had them "off galloping in the wrong direction"
by =
> stressing "same access":  "The statute requires much more
than
> that."  =
> Here's a link to the audiotape:
> =20
> rtsp://video.c-span.org/archive/sc/sc120605_rumsfeld.rm
>
>       ----- Original Message -----=20
>       From: Sanford Levinson <')" >SLevinson at law.utexas.edu>
=20
>       To: Douglas Laycock <')" >DLaycock at law.utexas.edu>  ; =
> DavidEBernstein at aol.com ; marty.lederman at comcast.net ; =
> conlawprof at lists.ucla.edu=20
>       Sent: Tuesday, December 06, 2005 4:54 PM
>       Subject: RE: Solomon Amendment
>
>       Doug concludes his posting by writing:
>
>       =20
>            So I think the objection to the government's equality
> argument is =
> not that it is false, but that it assumes the conclusion.
>       =20
>       =20
>       But isn't this the thrust of Peter Westen's "emptiness"
argument,
> that =
> all equality arguments assume their conclusion (i.e., that one
has
> a =
> right not to be discriminated against on grounds of race, religion,
=
> gender, etc., as against a widely shared perception that it is
> perfectly =
> all right to discriminate against people on grounds of residence,
> age, =
> attractiveness, etc., etc., etc.)?  My initial posting was that the =
> NYTimes was "misleading," not that it was necessarily "false." 
The
> term =
> "equality" is too capacious to generate easily identifiable "true"
> or =
> "false" arguments (or perhaps I should omit "easily"). =20
>       =20
>       sandy
>
>
> ------_=_NextPart_001_01C5FAD9.D9BAB0A1
> Content-Type: text/html;
>       charset="iso-8859-1"
> Content-Transfer-Encoding: quoted-printable
>
> <META HTTP-EQUIV=3D"Content-Type" CONTENT=3D"text/
html; =
> charset=3Diso-8859-1">=0A=
> =0A=
> <!DOCTYPE HTML PUBLIC "-//W3C//DTD HTML 4.0
Transitional//EN">=0A=
> <HTML><HEAD>=0A=
> =0A=
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BACKGROUND-
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> <DIV id=3DidOWAReplyText27712 dir=3Dltr>=0A=
> <DIV dir=3Dltr><FONT face=3DArial color=3D#000000
size=3D3>Isn't
> Scalia =
> right?  I =0A=
> have long wondered why the power to raise armies, together
with the =
> Supremacy =0A=
> Clause, isn't the end of the case.</FONT></DIV>=0A=
> <DIV dir=3Dltr><FONT face=3DArial color=3D#000000 =
> size=3D3></FONT> </DIV></DIV>=0A=
> <DIV id=3DidSignature67902 dir=3Dltr>=0A=
> <DIV><FONT face=3DArial color=3D#000000
size=3D2>Douglas =
> Laycock</FONT></DIV>=0A=
> <DIV><FONT face=3DArial size=3D2>University of Texas Law
=
> School</FONT></DIV>=0A=
> <DIV><FONT face=3DArial size=3D2>727 E. Dean Keeton
> St.</FONT></DIV>=0A=<DIV><FONT face=3DArial
size=3D2>Austin, TX 
> 78705</FONT></DIV>=0A=<DIV><FONT face=3DArial
size=3D2>512-232-
> 1341</FONT></DIV>=0A=<DIV><FONT face=3DArial
size=3D2>512-471-6988
> (fax)</FONT></DIV></DIV>=0A=<DIV dir=3Dltr><BR>=0A=
> <HR tabIndex=3D-1>=0A=
> <FONT face=3DTahoma size=3D2><B>From:</B> Dellinger,
Walter =0A=
> [WDellinger at OMM.com]<BR><B>Sent:</B> Tue 12/6/2005 5:59
=
> PM<BR><B>To:</B> =0A=
> Marty Lederman; Sanford Levinson; Douglas Laycock; =
> DavidEBernstein at aol.com; =0A=
> conlawprof at lists.ucla.edu<BR><B>Subject:</B> RE: Solomon
=0A=
> Amendment<BR></FONT><BR></DIV>=0A=
> <DIV>=0A=
> <DIV id=3DidOWAReplyText61057 dir=3Dltr>=0A=
> <DIV dir=3Dltr><FONT face=3DArial color=3D#000000
size=3D2>I will
> weigh =
> in when I =0A=
> can.  for now, here's is Dahlia -- she links to the HLR brief if =
> you go to =0A=
> Slate. =0A=
> <P>Justice Stephen Breyer cites one of the
> href=3D"http://www.law.harvard.edu/news/2005/09/21_brief.pdf"
=
> target=3D_blank><FONT =0A=
> color=3D#0066cc>amicus briefs</FONT> in the case that
suggests that =
> the law =0A=
> schools have not discriminated against military recruiters, but
> rather =
> have =0A=
> adopted an http://www.slate.com/id/2131465/"><FONT =0A=
> color=3D#0066cc>evenhanded policy from which the military
seeks an
> =0A=exemption</FONT>. For a few moments several justices
are in the =
> thrall of =0A=
> the amicus brief, until Scalia reminds Clement that the
> Constitution =
> grants =0A=
> Congress the power "to raise and support armies." Scalia
wonders
> why =
> that isn't =0A=
> the end of this case.</P></FONT></DIV>=0A=
> <DIV dir=3Dltr><FONT face=3DArial color=3D#000000 =
> size=3D2></FONT> </DIV></DIV>=0A=
> <DIV id=3DidSignature18519 dir=3Dltr>=0A=
> <DIV><FONT face=3DArial color=3D#000000
size=3D2><STRONG>Walter =0A=
> Dellinger</STRONG></FONT></DIV>=0A=
> <DIV><STRONG><FONT face=3DArial size=3D2>O'Melveny
&amp; =
> Myers</FONT></STRONG></DIV>=0A=
> <DIV><STRONG><FONT face=3DArial size=3D2>1625 Eye
Street, =
> NW</FONT></STRONG></DIV>=0A=
> <DIV><STRONG><FONT face=3DArial size=3D2>Washington,
DC =
> 20006</FONT></STRONG></DIV>=0A=
> <DIV><STRONG><FONT face=3DArial size=3D2>TEL:  (202)
=0A=
> 383-5319</FONT></STRONG></DIV></DIV>=0A=
> <DIV dir=3Dltr><BR>=0A=
> <HR tabIndex=3D-1>=0A=
> <FONT face=3DTahoma size=3D2><B>From:</B> Marty
Lederman =0A=
> [marty.lederman at comcast.net]<BR><B>Sent:</B> Tue 06-
Dec-05 5:36 =0A=
> PM<BR><B>To:</B> Sanford Levinson; Douglas Laycock; =
> DavidEBernstein at aol.com; =0A=
> conlawprof at lists.ucla.edu<BR><B>Subject:</B> Re: Solomon
=0A=
> Amendment<BR></FONT><BR></DIV>=0A=
> <DIV>=0A=
> <DIV>I think Sandy's broader point is an important one --
namely,
> that =
> the =0A=
> government has been pitching this, and virtually the entire press
> corps =
> has been =0A=
> reporting it, as a case in which schools are
> <EM>discriminating</EM> =
> against the =0A=
> military and denying them <EM>equal access</EM>.  I think it's
=
> almost =0A=
> certain the Court will uphold the law; but I think it's a salutary =
> development =0A=
> that at least some of the Justices seem to understand clearly
that
> what =
> the SA =0A=
> condition coerces is not equal treatment (as in title VI), but an =
> exclusive =0A=
> pro-military privilege -- an exemption from the rules that bind
> everyone =0A=
> else.  Put that way, perhaps the public support for the law --the
=
> "Military =0A=
> Gets an Exemption From the Basic Rules That Apply to
Everyone Else
> Act =
> of 2001" =0A=
> -- would be a bit more equivocal.</DIV>=0A=
> <DIV> </DIV>=0A=
> <DIV>P.S.  I should have noted that the very <EM>first</EM> =
> challenge to =0A=
> Clement on the "equal access" question was from Justice
Scalia,
> followed =
> by =0A=
> Justices O'Connor, Kennedy and Breyer, and then Scalia again,
> insisting =
> that =0A=
> Clement had had them "off galloping in the wrong direction" by
> stressing =
> "same =0A=
> access":  "The statute requires much more than that."  Here's =
> a link =0A=
> to the audiotape:</DIV>=0A=
> <DIV> </DIV>=0A=
> <DIV>rtsp://video.c-span.org/archive/sc/
sc120605_rumsfeld.rm</DIV>=0A=
> <BLOCKQUOTE dir=3Dltr =0A=
> style=3D"PADDING-RIGHT: 0px; PADDING-LEFT: 5px;
MARGIN-LEFT: 5px; =
> BORDER-LEFT: #000000 2px solid; MARGIN-RIGHT:
0px">=0A=
>  <DIV style=3D"FONT: 10pt arial">----- Original Message -----
> </DIV>=0A=  <DIV style=3D"BACKGROUND: #e4e4e4; FONT:
10pt
> arial"><B>From:</B>   title=3DSLevinson at law.utexas.edu =
> href=3D"SLevinson at law.utexas.edu">Sanford =0A=
>  Levinson </DIV>=0A=
>  <DIV style=3D"FONT: 10pt arial"><B>To:</B>
> title=3DDLaycock at law.utexas.edu =0A=
>  href=3D"DLaycock at law.utexas.edu">Douglas Laycock ;  
> title=3DDavidEBernstein at aol.com =0A=
> 
href=3D"DavidEBernstein at aol.com">DavidEBernstein at aol.com ;
=
>  title=3Dmarty.lederman at comcast.net =0A=
>  =
>
href=3D"marty.lederman at comcast.net">marty.lederman at comc
ast.net=
> ;   title=3Dconlawprof at lists.ucla.edu =0A=
>  =
> href=3D"conlawprof at lists.ucla.edu">conlawprof at lists.ucla.edu
=
> </DIV>=0A=
>  <DIV style=3D"FONT: 10pt arial"><B>Sent:</B> Tuesday,
December
> 06, =
> 2005 4:54 =0A=
>  PM</DIV>=0A=
>  <DIV style=3D"FONT: 10pt arial"><B>Subject:</B> RE:
Solomon =
> Amendment</DIV>=0A=
>  <DIV><BR></DIV>=0A=
>  <DIV dir=3Dltr align=3Dleft><SPAN class=3D093204921
-06122005>Doug =
> concludes his =0A=
>  posting by writing:</SPAN></DIV><BR>=0A=
>  <DIV dir=3Dltr align=3Dleft><SPAN =
> class=3D531553421-06122005></SPAN> </DIV>=0A=
>  <DIV dir=3Dltr align=3Dleft><SPAN =
> class=3D531553421-06122005>    So I =0A=
>  think the objection to the government's equality argument is not
> that =
> it is =0A=
>  false, but that it assumes the conclusion.</SPAN></DIV>=0A=
>  <DIV dir=3Dltr align=3Dleft><SPAN =
> class=3D531553421-06122005></SPAN> </DIV>=0A=
>  <DIV dir=3Dltr align=3Dleft><SPAN =
> class=3D531553421-06122005></SPAN> </DIV>=0A=
>  <DIV dir=3Dltr align=3Dleft><SPAN class=3D531553421-
> 06122005><SPAN =0A=
>  class=3D093204921-06122005>But isn't this the thrust of Peter
> Westen's =0A=
>  "emptiness" argument, that <EM>all </EM>equality arguments
assume =
> their =0A=
>  conclusion (i.e., that one has a right not to be discriminated
> against =
> on =0A=
>  grounds of race, religion, gender, etc., as against a widely
> shared =
> perception =0A=
>  that it is perfectly all right to discriminate against people on =
> grounds =0A=
>  of residence, age, attractiveness, etc., etc., etc.)?  My initial =
> posting =0A=
>  was that the NYTimes was "misleading," not that it was
> necessarily =0A=
>  "false."  The term "equality" is too capacious to generate easily
> =0A=  identifiable "true" or "false" arguments (or perhaps I
should
> omit =0A=
>  "easily").  </SPAN></SPAN></DIV>=0A=
>  <DIV dir=3Dltr align=3Dleft><SPAN class=3D531553421-
> 06122005><SPAN =0A=
>  class=3D093204921-06122005></SPAN></SPAN> </DIV>=0A=
>  <DIV dir=3Dltr align=3Dleft><SPAN class=3D531553421-
> 06122005><SPAN =0A=
>  =
> class=3D093204921-
> 06122005>sandy</SPAN></SPAN></DIV></BLOCKQUOTE></
DIV></=DIV></BODY></HTML>=0A=
>
> ------_=_NextPart_001_01C5FAD9.D9BAB0A1--
>


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