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is mandatory school for kids constitutional?


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I'm not sure I agree with you that the current Supreme Court would strike down a federal compulsory education law. Even during Rehnquist's time, they were very reluctant to strike down anything that was justified by the Commerce Clause. I think that the Rehnquist, O'Connor, and Scalia that ruled against Raich were probably stronger on the 10th Amendment than Roberts, Alito, and Gorsuch as a whole. It was certainly a bigger priority for Rehnquist than Roberts. Plus Kennedy has drifted to the left over the years.

 

Not that we'll ever get a test for this as such a law is unnecessary.

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I think the current court would probably strike it down- with the caveat that I think Kennedy would probably just vote however the political winds at the time are blowing, and I'd assume such a law would be exceedingly unpopular, even if it miraculously it got through Congress.

 

I'll add that Gorsuch is a bit of an unknown too. So, come to think of it, I'm a little less confident than I was before, but I think the court would ultimately bend to public pressure.

 

Only Scalia ruled against Raich. Rehnquist and O'Connor both dissented. Which, on a side note, is one of my most disliked Scalia opinions- I found it incredibly strained. Thomas writes one of his better dissents (IMO) in that case. But then again, that was consistent with Scalia- he was never very strong on the 10th- see, e.g., South Dakota v Dole... where Rehnquist and O'Connor both dissented as well (but Scalia did not).

 

So would Roberts and Alito be weaker on this than Rehnquist, Scalia and O'Connor? Well, I think they'd probably be stronger than at least Scalia. Rehnquist and O'Connor are closer, but they don't necessarily have to be stronger, just not any weaker. In other words, they'd have to want to at least keep the commerce clause at the levels in Lopez and Morrison, and I think they probably would want to. What would be the alternative? We could go back to the pre Lopez days... say, Perez v US.. a somewhat lesser known case from 1971 (probably because it isn't good law anymore), where the Court said loan sharking in one state by one guy (even if completely limited to that state) was 'interstate commerce' and subject to the Consumer Credit Protection Act... arguably the height (if you will), of the commerce clause.

 

If we went back to the Perez test, then arguably a national education law is constitutional, but I think Roberts and Alito would be very hesitant to overturn the Lopez rule. They would be looking at the long game, and that rule is basically the only thing holding back sweeping national legislation on all sorts of traditionally state matters. In typing this post, I've actually talked myself into thinking Kennedy might not be a sure bet either. He did, after all, vote in the majority in Lopez and Morrison. Sure, he voted against Raich too, but I think one big difference in that case (even though it goes unstated), was that it was a drug case, and conservatives kinda 'look the other way' when it comes to states rights and drug enforcement. I'm 100% convinced that's why Scalia was in the majority- he certainly wouldn't have ever admitted it, but it's pretty transparent. On the other hand, national education policy is very much a liberal thing, so I don't see the conservatives 'looking the other way' on this one. Kennedy would have to essentially overturn his own rule from Lopez for a liberal policy and I don't know that I see it.

 

Still agree that Gorsuch is a bit of a wild card. Would be good to get another commerce clause case- haven't had one since Raich, so it's a good question where people are on the issue right now.

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