Obama is now planning to require students to perform unpaid community service every year. “Obama will call on citizens of all ages to serve America, by developing a plan to require 50 hours of community service in middle school and high school and 100 hours of community service in college every year.” Community organizers will welcome all the unpaid labor this makes available to them.
It is unclear if any federal power authorizes such a requirement: the Supreme Court’s decision in United States v. Lopez (1995), which struck down the Gun-Free School Zones Act as unconstitutional, made clear that private citizens and education are not inherently commercial enterprises subject to federal regulation under the Commerce Clause. (That decision was reaffirmed in United States v. Morrison (2000), which dismissed a federal lawsuit alleging violence between college students, as beyond federal jurisdiction).
My guess is that Obama will try to get around those decisions by conditioning federal grants to school districts on their mandating unpaid service by students. (The Supreme Court hasn’t struck down a spending-condition since United States v. Butler (1936)). Prior to the election, Obama supporters also spoke of sweetening the pot for college students (but not other students) by giving them a tax-credit in exchange for the community service.
The “Liberaltarians” — self-styled Libertarians who backed Obama — claimed that Obama wouldn’t require unpaid community service, which they regard as a violation of the Thirteenth Amendment (an argument rejected by federal appeals courts). But it turns out that they were wrong (and not for the first time).
UPDATE, November 8: Walter Olson of Overlawyered writes that after he publicized the Obama community-service requirement, and his post “began drawing thousands of visitors, the Obama website administrators at change.gov silently replaced the ‘require’ language with something new and different: ‘Obama will call on citizens of all ages to serve America, by setting a goal that all middle school and high school students do 50 hours of community service a year and by developing a plan so that all college students who conduct 100 hours of community service receive a universal and fully refundable tax credit ensuring that the first $4,000 of their college education is completely free.’ Robert Bidinotto noted the switch and Mike LaSalle saved the original page as a PDF for those who didn’t see it the first time. Glenn Reynolds did a second post taking note of the substitution and quoting the witty comment of reader Nancy Anne Potts: ‘Looks like the change.gov site is true to its title – it changes!'”