Congress and the States are better judges of what constitutional amendments should exist than the Court.
Abusing the Power of the Purse
Richard Reinsch (00:04):
Today we’re talking with Philip Hamburger about his new book, Purchasing Submission: Conditions, Power and Freedom. We’re glad to welcome Philip Hamburger back to Liberty Law Talk. We featured his work extensively here, including his wonderful book, Is Administrative Law Unlawful? He’s also the author of earlier studies, Law and Judicial Duty and Separation of Church and State.
Philip Hamburger (01:15):
Well, thank you. It’s great to be here with you. I love these podcasts and everything you all already do, so it’s an honor to be here.
Richard Reinsch (01:21):
Philip Hamburger (01:22):
Really appreciate it.
Richard Reinsch (01:23):
So tell us about this book, Purchasing Submission. Who is purchasing submission?
Philip Hamburger (01:30):
Right. The government. It’s, of course-
Richard Reinsch (01:37):
Aren’t they always.
Philip Hamburger (01:38):
They collect our money and use our own money in a sense to suborn us and to purchase our freedom. And they do it in more interesting ways than I think is commonly recognized. So when the government gives one money or it gives one some other privilege like a license, they often attach a condition to it. You can get a license as long as you let us use a piece of your land, or you can be a lawyer subject to the following conditions, or we’re going to give you research grants, but you have to do the following. And these conditions are widely recognized by scholars of constitutional law and the sort of technical legal question, a technical question as to when conditions violate constitutional rights because, ordinarily a right is violated when some sort of coercion is supplied, some sort of force of law of bought.
And so when you’re simply asked, well, how have you done X, Y, and Z, and if so, we’ll give you money. It doesn’t seem terribly pressured and coercive. And as a result, it seems a technical problem, when did these conditions actually violate one’s rights and when do they not, and this whole literature on this. But it’s not just that literature I think is incomplete, I think this fails to recognize what’s actually going on, this much bigger problem. It’s not just the threat to rights. There’s a purchase of consent to a whole new mode of governance, an alternative mode of control. And so when you step back and see that, conditions are no longer a technical problem, that’s actually a profound question of political theory and law.
Richard Reinsch (03:12):
Thinking about these conditions, which you kind of go through a range of different types of conditions that seem to be attached to privilege as the government is offering you. Do you see yourself as sort of, is this sort of groundbreaking in the sense of people have noticed this, talked about it, there’ve been some judicial notice of it, although I take it from the book, not enough. And you see yourself with this book trying to call our attention to this way the government is increasingly operating by sort of stripping us of rights and offering for porridge. And we give that because we want that.
Philip Hamburger (03:55):
So I hesitate to say anything I do is groundbreaking, but I do think it is new to see the breadth of the problem and there are two layers to the problem, to the difficulty. One, as we discussed is the threat to rights. They give you money in exchange for giving up some of your speech, for example, which is very common I’m afraid, but it’s a much broader problem in the sense that it’s a new mode of governance. One’s giving up, not just our rights, but one’s freedom of self-government. One way of thinking about it is it’s a new irregular pathway of power. So we’re all familiar with a regular avenue of power through acts of Congress and the courts. And you can get that from School House Rock, or you can get that from the Federalist Papers and the Constitution. Then there’s an alternative pathway of power, an irregular path, which is through administrative rules and adjudications where you’re commanded, do this, don’t do that. And if you violate that, we’re going to bring you in front of the administrative law judge to punish you, make you pay a fine. And that imitates the regular avenue of power in creating binding rules and binding adjudications, but not in our institutions. Those are the constitution, but new institutions that have an unelected law makers, the bureaucrats and judges who aren’t really independent. And that dichotomy between the regular and irregular path between the acts of Congress and administrative rules is quite familiar, but it turns out that’s another irregular path.
There are a host of these, but the main one that’s been missed is this purchase of submission because sometimes the government, when it cannot get something through Congress, or doesn’t think it will, and it cannot get an administrative rule because it might be unconstitutional or politically unpalatable, it then will turn to another irregular path, not an agency rule that purports to bind, but rather a condition on the receipt of money. And what’s interesting about these conditions is they do not purport to bind. In fact, the whole point is they’re not binding. They don’t really restrict one, so theory goes because they’re just conditions on the money and that liberates the government to do all sorts of things that never otherwise could have done, things that would have been impossible even to administrative power. So it’s an additional irregular path and therefore profoundly dangerous. Because if you think about this as evasion as a cascade of evasions, you first evade the Constitution through administrative power, and then you evade it yet again through purchasing submission. So it’s moving ever further away from law.
Richard Reinsch (06:24):
Listening to you now, as I was reading this book, I thought I was reading this book with your other book, Is Administrative Law Unlawful?, in mind. And you’ve been talking about this. There you argued, you weren’t so much concerned with constitutional law regarding the administrative state, what you wanted to show is how the administrative state operates outside the bounds of constitutional norms, basic structural powers and responsibilities and accountability. And as I read this book, I thought, well, he’s done something like that here, too.
Philip Hamburger (07:00):
I beg to differ.
Richard Reinsch (07:01):
Philip Hamburger (07:02):
I actually, in the administrative law book, I actually was making a constitutional argument, but it wasn’t the conventional one in case of the doctrines. But rather by showing that there was a danger out there of this irregular power, which was familiar to the framers of the constitution and so we shouldn’t assume that administrative law is something new and unattended to by the constitution. Here, there is some parallel you’re absolutely right, that this is similarly a study of an irregular path of power, but this was actually much worse. If you thought administrative law was bad, worry about conditions. And if you think administrative power is actually okay, just need little trimming at the edges, you shouldn’t be complacent about the next irregular pathway, conditions, because this subverts our rights and undermines our self-governance in a way that administrative power does not. You at least had administrative rule, as published, we all know what it is. And it goes through a process. Conditions don’t have to do that. And many of them are private.
Richard Reinsch (08:10):
Help us help listeners understand maybe more concretely what you’re describing here. What are prominent instances of conditions that the government uses?
Philip Hamburger (08:20):
Well, Joe Biden, our president, helps people understand this. And so in that sense, the book is unexpectedly relevant. When the administration tells states, we’re going to give you money for Medicaid and Medicare, but only if you make certain requirements regarding vaccines, what they’re doing is regulating the states and the people within the states through purchase of compliance. When the government gives money to let’s say, Columbia University for research and says, here’s money for research, but the way, though, you have to first assure us that you have institutional review boards, which will censor what one can read and what one can say and what one can publish. What it’s doing is it’s paying these institutions to regulate people like me. It’s a regulatory condition and it’s doubly bad because it works for a private institution. So what we have are a lot of, not just unconstitutional conditions, that violate rights, but conditions that are regulatory, that are substitutes for the command of a statute or the command of an administrative rule.
Richard Reinsch (09:34):
As I was reading your book, one thing that comes to mind is sort of a prior choice, a decision that’s been made that the spending power, that there is sort of a standalone spending power the federal government possesses, and can do whatever it wants, like build a sidewalk for fitness reasons in towns across America, fund that, or be heavily involved in education or things like that, where you say, well, why does the federal government have this power? Well, as I was taught in law school, it’s the spending power. And how do you think about that problem?
Philip Hamburger (10:11):
It’s funny. I was also taught that, but the difficulty is to find that spending power, I thumbed through the constitution, where is it? Is it on page one, page two? You read through it. It was found there. Article one, section eight gives the power to lay and collect taxes, duties and so forth. And there’s a limit on that power to collect taxes, which, and that limit is you can collect these taxes to pay the debts and provide the common defense, general welfare of the United States. What we’ve done is we’ve replaced the comma after exercises is an inserted, a semi-colon. And in fact, Gouverneur Morris drafting, the constitution tried to do this. And then the convention said, no, no, no, no. This is one clause. You’re not splitting into two, but by interpretation, we’ve created a general spending power. So where it’s spending had to go through individual enumerated powers and that’s what’s limited in subject matter. It now just can be done, is not limited. And so conditions on spending are unlimited, which means you can regulate through conditions in ways that you could not regulate even with the expense of reading of congressional power. It gets worse than this, of course, because the so-called spending power or the limit on the taxing power, has to be for the common defense, general welfare of the United States, which if it means anything is, it doesn’t go to or for the states. So in fact, all the spending and aid to the states is unconstitutional, but the courts have just ignored this. And with that spending to and for the states, a lot can be extorted from them.
Richard Reinsch (11:49):
And then you couple that with, as I was thinking about it, the ability of the federal government to borrow unlimited amounts of money, and also having vast revenue as well, coming in. It’s an unlimited source of power. And there’s also this aspect of, John Diulio has written about this acronym called, BIGPAP and the idea being that the federal government is able to use states, nonprofits, all sorts of other agencies to in effect, regulate the country without actually doing it itself, but doing it through partnerships. And I was reading your book, I thought, well, so Professor Hamburger has uncovered yet another, is bringing to our attention in a dramatic way, this new mode of power. So how does one go about, I’m just sort of thinking practically here, because you say these are sort of, I mean, one is old Medicare. I mean, that’s obvious but constraints on Medicare, but you said these are a lot of just almost private deals because I read it and I thought, well, this is just another mode of administrative power.
Philip Hamburger (12:54):
It’s done by the same people, it’s usually done by the agencies, but the agencies don’t just have administrative power, which the power to make rules or edicts or expectations that functions rules. They also can dangle some money in front of you or a privilege like licensing and then say, but we’re only giving this to you after you’ve done something, X, Y, or Z, seeking so-called assurances about what you’ve done. And that’s the mode of control that’s quite profound. They can do almost anything that way. So an agency may pass regulation, continues conditions. So HHS has regulations stipulating the conditions on which universities get research funding and requires establishment of review boards and the like, but much of the conditioning that’s regulatory comes in site visits, private conversations, or just letters. Because these are private deals essentially, all sorts of bad things happen. For one thing, you don’t know whom it applies because only those who consent are subject to it. So in really rare cases, do we know who has submitted to the conditions. You don’t know who has, who hasn’t. What’s more, additional conditions are added in an informal way. And when there’s no way of knowing what these are, even within one’s own institution, because these things are often kept private even within the effected institutions. And this happens to banks and universities. And if it happens to banks and universities, which have so much power, what’s the fate of individual?
Richard Reinsch (14:28):
As I was also thinking about your book, you think about the administrative state and and it has sort of official legal channels by which it’s supposed to operate in terms of proposing a rule and debating it, implementing it. But then increasingly we know it operates outside of those rules and does a lot of unofficial things. Like say a Dear colleague letter to every university in America, if you want federal funding, you will basically wipe away protections for those accused of sexual assault, longstanding protections. So is that unofficial? Do you see that as, is that conditioning as well?
Philip Hamburger (15:04):
That’s right. And Title IX has the sex discrimination condition on federal funds to educational institutions. But of course what’s happened is then that gets interpreted in semiformal and then less formal ways. And of course, ultimately it may depend on private conversations. And just to give you an example, Congress hands off regulatory power to the Securities Exchange Commission, hands off power to private regulatory groups and the like, or the exchanges. And they in turn regulate their members, but they regulate their members in ways that are overseen by the SEC. So you’ve essentially privatized regulation under the oversight of the federal government. Now this is highly advantageous, of course, for the federal government. For one thing, they say, we’re not forcing you to do anything, it’s just a private matter. So they can escape any accountability, again, much of it often for that to be private in conversation. And then of course, when rights are violated and there has to be an adjudication, well, there’s no violation of rights, it was just a private organization so no state action. And what’s more, when this adjudication, not only do you not get a jury, you don’t even get an administrative hearing because these are private institutions that can handle it as they wish. So this is complete degradation of our regular system of government through statutes and court proceedings to just private little inquisitorial tribunals and Title IX tribunals are a good example of this.
Richard Reinsch (16:41):
Thinking about, you said individual rights. In your research, what kept troubling you about this mode of governance?
Philip Hamburger (16:51):
I got into this, the book actually begins with an explanation of how it happened. An after dinner conversation, I was having a very nice dinner with wonderful friends. And after dinner I made offer the foolish question. Why haven’t you published an article that you were circulating in draft? And indeed it circulated like samizdat only in manuscript, quite widely read, but not published. He said, oh, I can’t publish it. The IRB won’t let me. I said, what? That sounds like the 17th century inquisition. No, no, no, it’s real. I can’t publish it. I could publish it, but they’d never allow me to publish again if I did. And then his wife, a cited geneticist and one of the best in the country said, yes, I lose several children each year this way, because under HIPAA, I can’t consult the tissue banks. And whatever you think about the use of that information, it’s quite sobering that someone with a scientific endeavor cannot consult information in these circumstances. So what was going on here? And I learned it was IRBs. I never heard of them before.
Richard Reinsch (17:58):
Yeah, talk about this.
Philip Hamburger (17:59):
Well, I never knew what an IRB was. I thought it was bizarre. And for three years, I refused to do anything about it though I was upset because of course I didn’t want to do administrative law. I didn’t want to do conditions. That’s boring. But it turned out to be ever more interesting. And the final straw was when a friend of mine went and I went and talked to the local ACLU and they said, oh yeah, we know all about this. Indeed, they knew the law beautifully, but they said they weren’t really against it. They weren’t against the censorship. And what institutional review boards, should I talk about that?
Richard Reinsch (18:32):
Philip Hamburger (18:34):
So most of you have never heard of these things. They’re the ones that introduced the oversight, sensitivity about the speech into campuses ages ago. If I want to do research and want federal funding, I can’t get the money directly, instead under HHS guidelines, I have to get the money to the institution. And that’s because institutions are more easily controlled and institutions then gets the money only if it has made an assurance to the federal government that has established a sort of ethical review of research, institutional review boards. Now that sounds all very jolly, that can’t be bad, but what these institutional review boards are mostly concerned with is speech. They’re worried about insensitive speech or harmful speech to the people who study. For example, if you’re interviewing somebody, if I were to interview a member of the KKK, I don’t really care that much about the harm to the individual, but the IRB will. And I can’t ask questions that might cause not only legal and financial loss to the individual, but also might cause stress. And so then also one can’t publish details that the IRB worries might be harmful individuals. The net result of course, is the complete deadening of research and it’s worse in medicine.
So in medicine, when there’s actually a death toll to this because when you discourage research, and by the way, you particularly discouraged research on minorities, one of the goals of IRBs, the net result is of course you don’t have information to save lives. I give you one example just to make this real. Dr. Pronovost of Johns Hopkins, I think it was 2006, did a study of Michigan intensive care units of catheters inserted into the heart. These procedures are necessary to save the life of the patient, but there used to be something like a two-thirds death rate because of infection. So what Pronovost did, went to the intensive care units in Michigan and said, let’s ask the doctors before they do it to wash their hands. And lo and behold, when they washed their hands, they saved, I think 1500 lives just in the course of the study. And then it was shut down by HHS because it did not have sufficient approval from the institutional review board. Nonetheless, by miracle, it gets published. And the publication of this, because of information about keeping clean, how important it is to these operations, has saved 17,000 lives a year in the United States alone. And what this tells you is that the suppression of information, the institutional review boards, even if it only suppresses a few important studies a year, quickly adds up to hundreds of thousands, if not millions of lives lost. That’s sobering. But this is the blessing of conditions. You can suppress speech without accountability.
Richard Reinsch (21:16):
Where have, in your research, where the federal courts been on conditions? From your book, I take it they’ve largely stood down. How should they step back up?
Philip Hamburger (21:32):
Well, so the book, although it’s at a broad level about the problem and it’s near political theory, much of it is also technically about law and actually ends the checklist for lawyers and judges. There are things that judges can do. And I think the first step is just to recognize the problem. Once it recognizes the seriousness of the problem, I think there will be a response. The other thing that’s important to do here is to recognize that actually there isn’t much precedent barring the development of doctrine or recognizing the constitution as to say. There are precedents, occasional precedents protecting freedom of speech, for example, but they’re fairly mild. The precedents have very little to say actually about, for example, regulatory conditions. The courts just haven’t recognized the problem. So I think one can go to the courts and ask them to work on this difficulty without even having to undo precedent. Now that’s not entirely true, there are areas where they will have to reconsider precedence, but much of it is just unexplored territory. It’s terra incognita, which is sad. Isn’t it strange, we have a method of government that’s now been in place for at least 70 years, perhaps a little more, but it’s been widespread since the 1960s and we don’t see it.
Richard Reinsch (22:56):
And I was going to ask you is, so when did this really kick into high gear?
Philip Hamburger (23:02):
Right. Probably, I’d say the sixties and seventies. Yes. But also in the nineties and since then, where the amount of money spent on the states is massive.
Richard Reinsch (23:05):
Yeah. You note that in the beginning, that 30, for most states, it’s about 30% of their budget comes from the federal government. And I’ve read previously is state bureaucracies have grown, state employees have grown. Federal government employees really haven’t I’ve read, which kind of speaks to this phenomenon, I think, of indirect government.
Philip Hamburger (23:33):
Part of it also is that we think of conditions to the states is violating rights. They also regulate state policy in violation of so-called commandeering doctrine. But they don’t just regulate state policy, they actually reshaped state governance, which I don’t think anyone’s really paid attention to other than Martha Derthick in the 1970s. She noted it briefly. Grants to the states when used to convert elected power to administrative power because the federal agencies like to deal with state agencies. They don’t want to deal with state elected officials. And so they give money on the condition, for example, that the power once exercised by selectmen in Massachusetts towns gets handed over to administrators. And there’s a class issue of course, because it means taking power out of folks in a community who may not have college degrees and giving the power to people in Boston who are distanced from the communities, but have PhDs.
Richard Reinsch (24:31):
Yeah. Oh yeah. In government administration or something. Thinking about this, also you hit too that maybe the New Left was onto something and the protection of privileges in the late sixties, which I thought that was an interesting argument and made sense in light of the book.
Philip Hamburger (24:50):
I don’t want to praise the New Left generally, but Charles Reich, Charles Reich was brilliant and wrote a piece called “The New Property.”
Richard Reinsch (25:02):
Philip Hamburger (25:02):
And he discusses this problem very accurately and candidly. And he’s worried about it, but he phrases it in terms of property, not power. So if he were here in our conversation with us is I would simply beg him to say, it’s not really new property, it’s a new power. He recognizes that the government is buying its way into regulation and buying its way to adjudication of any process. And he worries about this, but because he’s so focused on the new property, the property that consists of government benefits and the like, he didn’t address the question of power, but he sure was on to it and I must say if there’s any prior scholarship that I thought was illuminating, it was his. It was more on point than I think anything else I’ve read.
Richard Reinsch (25:53):
That’s interesting because I’ve always seen it as sort of the turning and progressive government in America or the attempt to legitimate it more and more. So I’ve always sort of recoiled from it. So I thought that was an interesting part in your book. Yeah.
Philip Hamburger (26:06):
Right. So I would not agree with him about the analysis of the new property. I think actually that did a lot of damage to, for example, rights of due process rights. I think that endeavor to get processed for grant, for the denials of, let’s say welfare ended up degrading, diminishing due process across the board, including constraints illustrated, for example, by Hamdan vs Rumsfeld where we now can imprison people without anything more than a neutral adjudicator deciding it, no jury, no judge, et cetera. And that’s a product of this is a new property as well and the attachment of due process to that. But at the same time, I want to give him credit where it’s due. He did understand that there were risks in the purchasing compliance.
Richard Reinsch (26:53):
More sticky question. I take it you don’t think all conditions are unconstitutional.
Philip Hamburger (26:58):
No, most conditions…
Richard Reinsch (27:00):
So how in thinking about the government extending conditions on privileges or attaching them to privileges, how do you sort of work out an analysis like this, it’s something like plea bargaining. What do you think about that?
Philip Hamburger (27:11):
Right. So most government conditions such as we’ll give you money for an airplane on the condition that it flies are perfectly reasonable and lawful. And the book goes out of its way to emphasize is not a complaint about conditions on the whole. I do see contracts law, and I know the value of conditions. But on the margins, there are conditions that are being used for less innocent purposes and to regulate and deprive people of rights, to control the states and so forth. And that’s what’s very dangerous. So for example, Cass Sunstein discussed nudges. I can’t say that I think most people like being nudged feels more like a push usually, but that’s not necessarily unconstitutional. What becomes problematic is when the conditions deprive one of rights or it’s used as a mode of regulation. And plea bargains, let’s talk about that. Is it 95, 97% of criminal cases end in plea bargains, at least at the federal level. It’s prodigious and many of those conditions are not unreasonable, but they can overstep the line. And it’s an interesting delicate question. So for example, suppose you’re asked to give up your right to a jury trial. Well, that’s not necessarily unconstitutional, the jury trial is not mandatory. You can agree to give it up voluntarily or when you’re given something. But what if you’re asked to give up your jury trial in future cases, that would be different. That’s an attempt to restrict your exercise to the right in the future. More commonly, more typical sort of condition would be to require one to provide testimony or not exercise ones right against self-incrimination. If that extends too far into the future, then I think when runs into constitutional problems, but if it’s confined to the case itself, there needn’t to be a problem. So one has to parse these things in a fairly careful way to get there. What I found most interesting-
Richard Reinsch (29:23):
And I’m ignorant here, are you saying federal prosecutors are frequently-
Philip Hamburger (29:27):
I’m talking about federal prosecutors.
Richard Reinsch (29:29):
Federal prosecutors are frequently reaching beyond the case at hand to future cases with defendants.
Philip Hamburger (29:32):
I don’t know how frequently it happens. It just happens occasionally, but sometimes it does happen. And then one has to be careful. When we get to the free speech conditions, I think there’s something important to be observed in the word “abridge.” The first amendment is actually carefully worded. Congress should make no law abridging the freedom of speech or of the press. And that word, abridging actually is helpful because when Congress passes a statute that restricts what you can say, one might have a difficult question as to whether or not the law abridges the freedom of speech, but when it or an agency using money on the condition that you similarly restrict your speech, it’s actually much easier because if the condition goes further than what is constitutionally allowed in a direct restraint you know that it’s abridging the freedom of speech, because the word abridging suggests you’re going a little bit further. And so we actually have some clarity in the speech cases. That isn’t always true in some of the Bill of Rights.
Richard Reinsch (30:36):
So for example, you don’t have to pay taxes, you’re a non-profit, but with that comes all sorts of restrictions on your speech.
Philip Hamburger (30:47):
Right. And so the limitations on nonprofits, not to get involved in politics, political speech and elections or in lobbying. As we know, I’ve written on this, and it actually, it’s first proposed by Hiram Evans, the rather unlovely Imperial Wizard of Ku Klux Klan, and it’s a way of silencing relatively Orthodox, IE Catholic institutions even if that’s the risk of silencing others. This is a constraint on speech and on political speech. We would’ve thought we’d all be concerned about that, but we’re told reassuringly that no, no, no, it’s just a condition on a privilege, that of tax exemption. But it’s really just saying, you’re going to get different tax rate depending on whether you silence yourself. And once you understand it that way, it’s quite clear this is actually a penalty on speech. But even if you just understand it as a condition, and by the way I say that, because lowered taxes and receiving money are actually quite different. You have a choice as to whether or not you receive money, not as to whether or not you’re on the tax system. But even if you just do this as a condition on a privilege, and there’s no sort of coercion here, this is a condition that one could never impose directly. The only reason it’s been accepted is because it’s thrown in as a condition on a privilege. And that shows how these are used to evade the first amendment.
Richard Reinsch (32:16):
And I take it. I mean, there is a level of political theory, there’s this sort of assumption here working that rights themselves, property is something that the government really has control of and doles out. So I’m not violating. Like to the nonprofit, it’s like, well, you’re getting this tax deference, aren’t we generous to you. And it’s like, well, why did you assume that it was yours to begin with? I mean, that’s kind of the way I’ve always looked at it.
Philip Hamburger (32:46):
Right. So this gets back to the debates between Pufendorf and Locke. Pufendorf understood the contract proceeded government, but he thought that property was the product of agreement. And so from that perspective, it wasn’t clear that property necessarily preceded government, could have followed from the government, in which case property is dependent on government. Marcez had a certain priority of government before property and property is really protected. John Locke, so he’s often thought to be responding to Hobbes, is also responding to Pufendorf quietly. And John Locke offers a different account of the development of property. It’s the so-called labor theory of property, put labor into something then it becomes yours. Why would he do this? If you take this as a grand theory of property, it doesn’t explain all property. And so therefore seemed rather weak, but he wasn’t trying to explain all property. He was just trying to show that some property, institutional property, preexists government. And that’s crucial because property is his metaphor, if you will, for all liberty, it’s something that’s yours and that proceeds government. And so that conversation between Pufendorf and Locke, although I think often missed and misunderstood these days is very relevant here, property proceeds government. And by the way, notice if the IRS could treat any sort of tax exemption as largess to which you can attach conditions depriving you of your rights, notice it can just give you a hundred percent taxation. And then when it lets you keep 1%, he says, but of course, on the condition that you could subvert all rights instantly this way. So I don’t think it makes sense.
Richard Reinsch (34:34):
So the progressive mode of government has to dispense then with, I think that was a lock-in position necessarily if it’s going to be able to move money around and engage in the transfer payments and the regulatory system that it needs to. So it sort of has to disestablish that mode of thinking. You find in the book, I think that Americans have largely accepted this, but maybe they need to be reminded of what they’ve forgotten.
Philip Hamburger (35:01):
Well, I think what’s happened is that money has appealed to people, as always. And the folks who get money, don’t worry too much about the conditions. But as they pile up, there are profound costs, not only to the individuals and institutions, but also to the whole nature of our society, where we’re turning into a society in which everything can be bought. And I think actually a lot of progressives understand that this is dangerous. A lot of progressives regret commodification as they would put it. And what we’ve done is commodified our government. And there is something which I would have thought people from many different perspectives can agree on that. This is somewhat worrisome. Can I add a thought about the work, just how dangerous this is?
Philip Hamburger (35:48):
To the degree conditions are the primary means of privatizing control, privatizing regulation by funneling it through employers, universities, banks, and so forth. There’s a very great danger that all institutions will end up being aligned under centralized control and I discuss this towards the end of the book. The danger is that if federal money and policy runs through the states, runs through the banks, runs through the universities, runs even through churches who tried to silence their members to avoid violating 501(c)(3), we end up in the system in which all of institutions are aligned. It used to be because institutions were not aligned in this way, either those institutions were different and because regions were different, you could find some sort of solace, some safety, if not at one level of the system than in another one type of institution or another. If you don’t fit into the banks, you fit into the universities. If you don’t put in there, you can fit in, let’s say in the state government. That’s no longer true because they’re all being aligned in their policies, mostly through conditions also to some degree through direct regulation. And that ultimately is very, very dangerous.
Richard Reinsch (37:11):
Just to go back to the dear colleague letter to higher education. I mean, did any institutions receiving federal funds object to that?
Philip Hamburger (37:17):
I don’t know, but there certainly wasn’t mass objection of that.
Richard Reinsch (37:21):
Philip Hamburger (37:24):
And notice, it’s one administrator to another. They’re talking to their own people.
Richard Reinsch (37:29):
And realizing that their institution would fall apart without federal funds.
Philip Hamburger (37:34):
That’s right. But they fail to realize that their institutions are going to be rendered impotent and unfree and utterly, utterly irrelevant if they accept the conditions.
Richard Reinsch (37:46):
I can think of, since that letter was issued, a number of private, higher education institutions coming into being, which made it very clear, they would never take federal funds, but those are a few.
Philip Hamburger (37:58):
Very, very few.
Richard Reinsch (37:59):
A scattered few.
Philip Hamburger (38:01):
Right. Hillsdale doesn’t take federal funds, but Hillsdale is a lonely voice.
Richard Reinsch (38:06):
And I think a lot of these new class, schools that are coming online, they’re very clear even in states like where I’m at in Indiana that have very widespread voucher programs, they will take none of that money because they’re worried about conditions that come with it. Is this just though the way of, I mean, I’m thinking about it. I mean, there is just sort of a, they’re offering people something, they’re going to take it.
Philip Hamburger (38:28):
Yes. But they’re corrupting us with our own money. They’re bankrupting us by dangling in front of us things we can’t afford with conditions that will destroy our freedom.
Richard Reinsch (38:39):
And as you think about this, what are the low hanging fruit that could be picked here, the fruit, to try and peel away this mode of governance?
Philip Hamburger (38:50):
So I think it’s already happening. The states increasingly are being offered money on the condition they submit to conditions, dictating their policies. Certainly any connection with vaccines from like this is happening, right. Or the tax reduction earlier this year, the states were told you could have federal money, but you’re not allowed to reduce your taxes.
Richard Reinsch (39:13):
Philip Hamburger (39:14):
So this is problematic on many grounds. So one thing it’s a mode of regulation through conditions, which shouldn’t be allowed. For another, it’s the spending into the states, is unlawful. But at the very least, there’s a commandeering doctrine, which really just reflects the structure of our constitution. Now the judges will say, commandeering, that’s about the relationship between two separate sovereigns. Not really. They got that wrong. It’s really about our right of localized self-government, it’s about freedom, not just structure. And the structure depends upon that freedom of localized self-government, so it’s really much more threatening than they think.
And although the term commandeering suggests that there has to be coercion or gun to the head, that’s what the Supreme Court’s apt to say, that’s actually the standard for duress in contract law, actually 19th century contract law, not even contemporary contract law. And structural problems, which is what this is, do not need any coercion. You can corrupt the construction of the constitution with money as well as by force. So I think we’re going to see arguments along these lines, arguments, I hope I can draw from the book that in fact commandeering doctrine is grossly misunderstood by the court and that these demands on the states not to lower the taxes or to impose vaccines, the like are unconstitutional interferences with separate sovereignties and with our right of localized self-government. So that’s, I think, would be an opening wedge.
Richard Reinsch (40:40):
There’s also something, as I’m listening to you, and I’m thinking, I think it was with regard to the states is sort of the increased ideological competition over policies and which policies lead to growth and flourishing, economic flourishing in particular. And it seems to be, you’re also getting this realization amongst both sets of governing elites of how they want to live. And red states are making decisions based on that as to what money they’ll take from the federal government. Witness red states, like Florida, not taking money regarding unemployment benefits because they think it actually would lead to a decreased labor market, depressed labor market. So already it’s almost like politics, the return of politics could also help here.
Philip Hamburger (41:22):
Possibly. Anything that helps, I think, would be welcome. My fear always has been, we’ll be woken, not by ideas, not by ideology, but by calamity. And it’s a stiff competition. Will it be in foreign matters or domestic matters that our collapsed will get our attention and will it then be too late? I don’t know.
Richard Reinsch (41:45):
Philip, maybe we’ll end on that note.
Philip Hamburger (41:48):
Thank you for giving me an optimistic ending.
Richard Reinsch (41:50):
We’ve been talking with Philip Hamburger, author of the new book, Purchasing Submission, I hope it has the impact all of your other books have had. Thank you for discussing it with us today.
Philip Hamburger (42:04):
You’re very kind. Good talking with you. Thank you so much.