Brought to you by the Religious Liberties Practice Group

Many provisions of the “Edward M. Kennedy Serve America Act” (H.R. 1388) or “Generations Invigorating Volunteerism and Education Act” (“GIVE Act”) (the Act’s previous moniker) took effect on October 1, 2009.1  The Act was passed by the House by a vote of 321-105 on March 18, 2009,2 ratified by the Senate on March 26, 2009 by a vote of 79-19,3 and signed into law by President Obama on April 21, 2009.4  The final legislation measures 142 pages.5  Sponsored by Rep. Carolyn McCarthy (D-NY),6 the Act reauthorizes and expands federally funded national service programs by amending the National and Community Service Act of 1990 (“NCSA”) and the Domestic Volunteer Service Act of 1973 (“DVSA”)7 and authorizes between $5.7 billion8 and $6 billion9 to support various community service-oriented initiatives, including AmeriCorps (and others),10 over the course of the next six years through its scheduled conclusion in 2014.11

The Act proposes to:

“recognize social entrepreneurs, increase public and private investment in nonprofits, leverage Federal investments, expand service learning, coordinate service learning, coordinate citizen service in emergencies or disasters, increase service opportunities for retiring professionals, encourage continued service of national service alums, support colleges that engage students in community service, encourage service by individuals age 55 and older, expand the participation of veterans in national service, and focus national service on education, energy conservation, and improving the health status of and economic opportunity for economically disadvantaged individuals.”12

The Act passed by clear margins in both the House and Senate, and supporters hail this as evidence of broad support for an increased federal role in encouraging volunteerism and service learning.  Supporters also note that, given the current national economic situation, the need for volunteer assistance for low and middle income people is at an all-time high.  Critics of the Act in the public at large have attacked it on a variety of grounds.  Some have objected to the economics of the Act by simply asserting that the government should not spend six billion taxpayer dollars employing volunteers.13  Others have expressed concern over the moral basis for legislation that usurps the volunteer nature of service on the grounds that volunteer service has traditionally been a hallmark of the United States’ political identity.14 A recurring criticism of the Act has been that it is unconstitutional.15  More specifically, two distinct provisions of the initial bill drew criticism.16  An initial draft contained language indicating that government was investigating mandatory volunteer service,17 while a different provision indicated that service learning would become a mandatory part of secondary school curriculum.18  Both of these controversial passages were excluded from the version of the Act that was ultimately ratified.19 

*Robert Luther III is an attorney whose scholarship on constitutional law has been published in the law journals of George Mason University, UC Davis, Santa Clara University, Valparaiso University, and Creighton University.  He is a member of the Civil Rights and the Religious Liberties Practice Groups.

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  1. The Edward M. Kennedy Serve America Act: Answers to Frequently-Asked Questions: http://www.nationalservice.gov/pdf/09_0519_serveact_faq.pdf
  7. Id., supra, at n. 3.
  10. See “Service America Act: Detailed Summary” at 3 http://www.nationalservice.gov/pdf/09_0331_recovery_summary.pdf (“AmeriCorps State & National programs may be funded through one of five Service Corps – Educational Corps, Healthy Futures Corps, Clean Energy Corps, Veterans Corps, and Opportunity Corps – or as a National Service Program.”)
  11. Id.
  12. See “Service America Act: Detailed Summary” at 1 http://www.nationalservice.gov/pdf/09_0331_recovery_summary.pdf
  13. “House PASSES “The GIVE Act” – Mandatory Volunteerism (HR 1388) http://www.campaignforliberty.com/blog.php?view=13880 (“The idea that government should order its people to perform acts of charity is contrary to the idea of charity and it removes the responsibility for charity from the people to the government, destroying private initiative.”)
  14. Paul M. Weyrich, “The Proposed GIVE Act: Government Usurpation of Volunteerism”; http://www.nationalledger.com/cgi-bin/artman/exec/view.cgi?archive=23&num=19248
  15. Id.  (“Who knew that [providing government funded service opportunities] was one of the obligations and enumerated powers of Congress under the Constitution?)
  17. See H.R. 1388, Sec. 6104(b)(6) (March 9, 2009) (“Whether a workable, fair, and reasonable mandatory service requirement for all able young people could be developed, and how such a requirement could be implemented in a manner that would strengthen the social fabric of the Nation and overcome civic challenges by bringing together people from diverse economic, ethnic, and educational backgrounds.”)
    http://www.scribd.com/doc/13389002/HR-1388
  18. See H.R. 1388, Sec. 120((b)(3)(B) (March 9, 2009) (“Service-learning is a mandatory part of the curriculum in all of the secondary schools served by the local educational agency.”)