Most lawyers today seem to believe that they must make new law because the one they inherited was in fact fundamentally unjust.
The United States seeks to secure the rule of law, on which our freedom and prosperity depend, through written constitutions enforced by an independent judiciary. Although governments will sometimes get away with ultra vires acts, we rely on constitutional checks and balances to prevent serious usurpations of power. If Philip Hamburger is right, however, constitutional violations by the federal government have become so pervasive, oppressive, and readily tolerated that we Americans risk becoming incapable of self-government.
In 2014, Hamburger published a massive historical and analytical study arguing that modern administrative law is really a revival of the prerogative power once exercised by English monarchs. The English successfully fought to replace this power with constitutional law, under which statutes are adopted by an independent legislature and enforced by independent courts. Our Founders fortified the barriers against arbitrary rule with written constitutions that provide for judicial review of actions by the executive and the legislature alike. But Hamburger argued that we are now largely ruled by unelected and unaccountable bureaucrats who exercise a form of administrative power that “systematically steps outside the Constitution’s structures, thereby creating an entire anti-constitutional regime.”
Hamburger’s new book, Purchasing Submission, describes a departure from the Constitution that is even worse. While administrative law may be “anti-constitutional,” it is typically applied with at least a simulacrum of the formal protections offered by the Constitution’s prescribed mode of making and enforcing law. When our rulers require us to surrender our legal rights as a condition of receiving benefits from the government, even this protection is lost.
It is true, of course, that most conditions on the receipt of benefits are manifestly innocuous and perfectly constitutional, as when government employees agree to show up at work and do their assigned tasks as a condition of receiving a salary. With this paradigm in mind, one might think that government should be just as free as anyone else to put additional conditions in its employment contracts, or on any benefit or privilege it offers to those who are free to decline the offer. Private firms, for example, frequently and justifiably require their employees to curb their tongues, on and off the job, and governments often have good reasons for doing the same.
The Supreme Court has declined to accept “consent” as a universal solvent with which government can eliminate barriers to regulation. It has identified some “unconstitutional conditions,” such as conditioning some government jobs on some forms of political silence or conformity. But the Court has notoriously never offered a satisfactory explanation of the difference between permissible and impermissible conditions. That failure has generated a large academic literature that reflects the difficulty of devising a doctrinal solution to the problem.
Purchasing Submission offers insightful discussions of this topic, especially with respect to regulations that are imposed indirectly through state and private actors. One federal agency, for example, requires colleges and universities, as a condition of receiving federal grants, to police the speech of their students and faculties in ways that the government could not do directly. These institutions are required to impose prior restraints on speech by requiring every researcher (not just recipients of federal grant money) to obtain a license before talking to “human subjects.” Before the Trump administration changed the policy, another agency effectively required colleges to try students accused of sexual misconduct (including “unwelcome” speech) in kangaroo courts that lacked anything resembling due process of law.
Hamburger’s greatest contribution to the literature may be his analysis of government’s use of conditions (including threats that are withdrawn on condition of compliance) to alter the Constitution’s allocation of power. Apart from violating specific individual rights, the government uses conditions on benefits as a tool for imposing regulations that the legislature has not adopted and frequently would not enact into law. For example, Congress conditioned a portion of the funding it offered the states for highway construction on their setting the legal drinking age at a minimum of twenty-one. More egregiously, the Federal Trade Commission frequently brings administrative proceedings against telecommunication companies for breaches of data security that do not violate any statutory or common law standard. Typically, the agency then uses the threat of regulatory harassment to extort from the company a consent decree that establishes a new security standard and waives the firm’s right to judicial review.
Many varieties of such techniques, including abusive threats to withhold permits and licenses, evade the Constitution’s vesting of the legislative and judicial powers in Congress and the federal courts respectively. Hamburger considers them unconstitutional for that reason. This reallocation of power is supposedly necessary to meet the demands of a citizenry that has no interest in crippling the government with an outmoded straitjacket on its regulatory flexibility. If so, it should be done through a constitutional amendment. But Hamburger is dubious about the need, suggesting instead that genuinely necessary regulations, and those that really do have broad political support, could be enacted in real laws enforced by real courts.
Hamburger rejects the conventional assumption that the Constitution allows the government to do whatever the Supreme Court endorses or tolerates. But he also recognizes that there is not much chance of enforcing the Constitution without the Court’s help. Accordingly, he points wherever he can to judicial precedents and comments that at least partially support his positions. And he suggests that many of the constitutional violations he identifies have not been ratified so much as overlooked by the Court. So he sees hope for progress.
I am largely persuaded by Hamburger’s diagnosis of the constitutional disease, which includes corruption of the republican spirit in a people that accustoms itself to governance by institutionalized bribery and extortion instead of by law. I wish he had provided more examples of the practices he condemns, and that he had more clearly defined the overlapping categories of unconstitutional conditions and “worrisome” or “disturbing” conditions. More importantly, I agree that the nation could make substantial progress in restoring the constitutional order without disabling government from adopting regulations that truly are needed and wanted by the public. Although the book does not present a detailed reform program, I also agree that such progress is very unlikely to occur except through the mechanism of judicial review.
The Supreme Court’s Original Sin
How much relief can we realistically hope for? Not much, if the past is any guide. Four decades ago, a vigorous reform movement arose from frustration with the politicized adventurism of the Warren and Burger Courts, which showed little respect for the original meaning of the Constitution and statutes, or for the Court’s own precedents. This movement has labored ever since to make fidelity to the written law respectable, and to encourage the appointment of sound-minded jurists. Four administrations beginning with President Reagan’s have accepted these goals as their own. Reagan elevated William Rehnquist to the chief justiceship, and he and his Republican successors have appointed ten new Justices. Members of this group have now constituted a majority of the Court continuously for over thirty years. Although most of these individuals have resisted major new departures from the Constitution, the principle of originalism has enjoyed little consistent support. The Rehnquist and Roberts Courts have sometimes cut back on unconstitutional excesses from the past, but mostly in tiny increments that have had little practical impact.
The dearth of real progress may be illustrated by a phenomenon to which the Court has given quite a bit of attention: conditional grants to the states. Alexander Hamilton argued that Congress derives a free-standing power to spend money from the reference to the general welfare in the following provision of the Constitution: “The Congress shall have Power to lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.” This clause specifies the purposes for which Congress may tax the people. That specification does not imply a power to spend for the general welfare any more than it implies the power to regulate for the general welfare.
As Madison insisted, repeatedly and irrefutably, treating the Taxation Clause as a grant of substantive regulatory or spending power effectively renders meaningless the enumeration of Congress’ limited substantive powers. Congress is certainly authorized to spend money, but only as a necessary and proper incident of the exercise of its enumerated powers. Otherwise, by substituting the carrot of money for the stick of direct commands, Congress could effectively exercise what we call the police power.
Hamburger thinks that Madison was right, as I do. The Supreme Court, however, issued a peremptory ipse dixit adopting Hamilton’s interpretation in 1936. This had little practical effect at first because the Court soon licensed Congress to regulate almost everything in human life. With next to no judicial limits on direct regulation, Congress had little need to use its judicially invented spending power to evade the Constitution’s limited enumeration of legislative powers.
Prospects for Redemption
Congress eventually became unsatisfied even with the unconstitutionally sweeping power that the Supreme Court had given it. Although free to exercise what amounts to the police power directly, or by purchasing compliance from regulated parties, Congress frequently finds it more convenient to launder its impositions through the state governments. In 1987’s South Dakota v. Dole, the Court summarized the limits on this use of the spending power, which are notable for their modesty. Hamburger stresses the Court’s statement that Congress may only spend money in pursuit of “the general welfare,” a constraint that even Hamilton accepted. But this limitation has never been enforced, and the Court itself admitted that it has extended so much deference to Congress that there may be no judicially enforceable restriction at all.
Five years later, in New York v. United States, the Court reviewed a statute that ordered the states either to adopt regulations for disposing of low-level radioactive waste generated within their borders or to take ownership of the waste or to become liable for all damages suffered by the owner as a result of the state’s refusal to take ownership. The Court properly held that Congress has no authority to force a state to do any of these things, and thus could not offer a “choice” that amounted to “your money or your life.” But this ruling was bound to have limited practical effect because the Court upheld other provisions that authorized sanctions on states that did not comply with the federal regulatory program. Those sanctions were based in part on Congress’ limitless power to tax and spend. They were also based in part on the legislature’s unfettered discretion to grant compliant states exemptions from the Court’s dormant commerce policy, a policy that unconstitutionally suppresses the states’ concurrent authority to regulate interstate commerce.
In 2012, NFIB v. Sebelius invalidated a law that threatened the states with the loss of all Medicaid subsidies unless they agreed to expand coverage in return for some new subsidies. A majority concluded that the size of the threatened loss was large enough to constitute unconstitutional coercion. This may appear to be a promising step toward curtailing federal extortion, but I am not sure it is legally sound. In dissent, Justice Ginsburg argued that Congress was free to repeal the entire Medicaid program and then replace it with a new program of subsidies conditioned on acceptance of both the previous and expanded coverage. Why should Congress be forbidden to accomplish in one step what it could certainly accomplish in two? Chief Justice Roberts responded by speculating that it would not be “that easy” politically to make the change in two steps. So Congress violated the Constitution by taking the politically easier path to a constitutionally permissible goal?
The Supreme Court could probably initiate meaningful constitutional reform if it corrected its 1936 mistake about the spending power, though the effects would be limited unless it also cut back significantly on its extravagant interpretation of Congress’ regulatory power. While we’re waiting, might the Court start enforcing a “general welfare” restriction by defining and invalidating impermissible pork-barrel spending? Not an appetizing prospect for the Justices, I suspect. Or perhaps the Court will police a line between inducement and coercion, as seven Justices purported to do in the Medicaid expansion case. Maybe. But Roberts’s lame response to Ginsburg’s legal argument in Sebelius, and his success at inducing Justices Breyer and Kagan to join his opinion on this issue, suggests that this case is not a harbinger of meaningful reform.
Hamburger’s diagnosis of the purchased-submission malady will enhance every reader’s understanding of this debilitating political and judicial pathology. The friends of constitutional government should hope that his book will help the Supreme Court to administer some effective medicine. Maybe that will happen this term in a case involving judicial deference to administrative agencies or a case involving the extent of congressional power to delegate legislative power to administrative agencies. But unless the Court acts with unexpected boldness, we will instead have more evidence suggesting that our system of constitutional self-government is experiencing the relentless progress of a terminal illness.