Is the Solomon Amendment F.A.I.R.: Some Thoughts on Congress's Power to Impose this Condition on Federal Spending

Abstract

In this article, I explore the constitutionality of the Solomon Amendment, by which Congress required that recipients of federal grants to institutions of higher education permit the military to conduct job interviews on campus despite the institution's objection to the military's ban on homosexuality in the military. I first consider the constitutionality of the spending program on which the Solomon Amendment imposed conditions, recognizing that spending for education is not part of the enumerated powers of Congress. I then consider Congress's power to raise and support armies, and concludes that a plausible, originalist argument can be made that federal support for higher education may be a constitutionally adequate means toward that end and that this is, in fact, the strongest ground for federal spending on higher education. Conditions on that spending such as the Solomon Amendment, which insure that the federal grants supports the constitutionally valid purpose, are therefore not only constitutional but may well be necessary to render valid the federal spending program itself.

Keywords: Solomon Amendment, FAIR, Spending Clause, General Welfare Clause, Constitution

JEL Classification: H10, H11, H52, H56, I22, I28