No good news goes unsullied

Updated Not even "pretty" good news.

I learn from JayV at Blazing Indiscretions that the day before the Senate vote on DADT, the Ninth Circuit Court of Appeals struck down a ban on military recruitment of minors that had been instituted by the voters of the northern Califormia cities of Eureka and Arcata. The court found the laws to be unconstitutional on the grounds that they interfered with the constitutional activities of the federal government.

"The states have no power to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by Congress to carry into execution the powers vested in the general government," the judges said.

That strikes me as an astoundingly broad and rather dangerous assertion. Consider this: The No Child Left Behind Act already mandates that military recruiters must have free access to students in every one of the country’s public schools. Imagine Congress passes a law expanding on that, one that requires any school system that is the direct or indirect recipient of federal aid (which means pretty much every public school in the country and a lot of private ones as well) to arrange for one-on-one "interviews" with military recruiters for every high school senior. In fact, at least for one such interview per student per year, from the age of 14 on. Based on the precedent of NCLB and the argument of the court here and given the practice of the federal courts to bend over and grab their ankles whenever the phrase "national security" is uttered - this case being such an example - do you truly think such a law would fail to pass muster? How? Why? Do you think that if towns and states tried to restrict recruiters in ways equivalent to how they regulate businesses that would survive a challenge to it as a "burden?" How? Why?

It's one thing to argue for federal pre-eminence, to argue that states have no authority to override federal law. It's one thing to say states can't unduly hinder the feds in carrying out constitutional activity (such as, as in this case, raising an army). It's quite another to say, as the court did, that states can do absolutely nothing to even regulate how the feds go about carrying out those activities within their borders.

One interesting thing, however: The linked article says that

[t]he campaign literature [used in the effort to pass the laws] accused recruiters of disseminating ads "glorifying military service and exaggerating the educational and career benefits, while ignoring the dangers."

I don't know if this was part of the pitch for the laws, but in a sense, it seems to me, they were accusing the recruiters of false advertising. What if that was made explicit? That is, what if towns and states said "Sure, recruiters, you can recruit, even among teenagers and others without the worldly experience to judge your claims. But you have to be honest. You have to tell the truth. No false advertising. You have to tell of the hardships, the dangers. You have to tell their targets that you can't promise them anything, you can't promise them any particular assignment, training, or education and that once they sign up, the military makes all those decisions and they have no say."

Various places have passed laws trying to restrict abortion by requiring physicians to tell a woman considering an abortion certain things, things intended to scare her out of having one. These laws have in at least some cases been upheld under the rubric of making a "fully-informed" decision. This would use the same idea: making a "fully-informed" decision about enlisting.

I frankly doubt that would succeed - but damn it would be good fun to see the federal courts, by knocking it down, have to openly assert that the government is not only free to, it is empowered by the Constitution to, lie in order to secure its cannon fodder.

Updated with the reference to NCLB and the addition of the paragraph about laws on abortion.