Ninth Circuit strikes down ban on military recruitment of minors

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[JURIST] The US Court of Appeals for the Ninth Circuit [official website] on Friday upheld [opinion, PDF] a lower court’s ruling invalidating the ban on the military recruitment of minors passed by two Northern California cities. In 2008, voters in Eureka and Arcata each passed the Youth Protection Act [text], identical ballot measures which prohibited the military recruitment of children under the age of 18. The Coalition to Stop Recruiting Kids! [advocacy website] accused [materials] recruiters of ignoring the dangers of military service while exaggerating the benefits. The cities argued that the ordinances prohibit conduct already forbidden by the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict [text], which the US ratified in 2002, and the Tenth Amendment [text]. The appeals court rejected the arguments because the ordinances impose greater restrictions on military recruitment than federal law and the regulation of federal military recruitment policies is not a power reserved to the states. The appeals court concluded that the ordinances were unconstitutional under the doctrine of intergovernmental immunity, first descrobed in McCulloch v. Maryland [opinion, text], because they expressly and directly regulate and discriminate against the federal government’s recruitment policies and the conduct of federal agents.

Military recruitment policies recently became an issue in the June confirmation hearings [JURIST report] of Supreme Court Justice Elena Kagan [JURIST news archive]. During her deanship at Harvard Law School [academic website], Kagan reinstated a prohibition against military recruiters because the military’s “Don’t Ask Don’t Tell” (DADT) [10 USC § 654; JURIST news archive] policy violated the school nondiscrimination code. In 2006, the Supreme Court upheld [JURIST report] the 1996 Solomon Amendment [text, Georgetown backgrounder], which blocks federal funding for schools refusing to allow military recruitment on campus. The military’s DADT policy was repealed [JURIST report] by the US Senate [official website] on Saturday. After September 11th, US military branches have increased recruiting waivers and continue to enlist a greater number of recruits with criminal records [JURIST reports].

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