The best piece of news to come out of Tuesday’s Supreme Court oral argument on Rumsfeld v. FAIR is the surmise, based on the justices’ questioning, that the court will roundly reject the argument of law schools who want to receive federal money while blocking on-campus military recruiting. Constitutionalists can also smile because of the logic that the justices might use to reach their conclusion. The universities argued that the case hinges on the First Amendment, but government lawyers asked the court to look beyond the free speech clause to other important parts of the constitution and it sounds like at least some justices are doing so.

The government argued in its brief defending the law that, as much as any question of the universities’ First Amendment rights to object to the military’s “don’t ask, don’t tell” policy on homosexuality, the court should also consider Congress’s constitutional responsibility, enumerated in Article I, to “raise and support” a military for the common defense. “To meet that challenge,” the acting solicitor general, Paul Clement, wrote in a government brief, “Congress has long required the armed forces to ‘conduct intensive recruiting campaigns’ to encourage military enlistments.” Therefore, any First Amendment interest – if there even is one – must be balanced against Congress’s responsibility to carry out its constitutional obligation as it sees fit. The Great Scalia suggested to Mr. Clement during the oral argument that the Article I issue ought to be enough on its own to settle the case.

If the point about raising and supporting an army does figure prominently in the court’s ruling, it will be a victory for those who still credit such quaint notions as separated and delegated powers. Rumsfeld is about whether Congress will be able to exercise its own judgment about how to fulfill its duties, or whether instead the courts will force the legislative branch’s hand by manufacturing “rights” where none exist. Universities undeniably have a right to free speech, for example, but not the right to require the government to pay for their speech.

This case is but another one in a long string of cases that have sought to secure a “right” to government money in many areas. One of the lawyers for the universities, Joshua Rosenkranz, assisted in another such case in the late 1990s when he was head of the Brennan Center for Justice at New York University. In Velazquez v. Legal Services Corp., the center argued against a law prohibiting federally funded legal aid lawyers from using taxpayers’ money to sue to overturn welfare reform enacted by the taxpayers’ elected representatives. In that case, the Supreme Court ultimately sided with legal aid; Velazquez and Rumsfeld are not truly analogous, however, so the court will not have to overturn its own precedent to rule correctly in this case. It will be encouraging if the justices decide to credit legislative judgment.