Spending, Unconstitutional Conditions, and Coercion

[Lederman, Marty]

Mitchell Berman writes:  "I suspect, to wrap up, that many people who thought that prior discussions of the subject had the air of unreality about them would think all that I've just said suffers from that defect in spades."

Not in the slightest!  It's a great post -- much more sophisticated than our previous uninformed ramblings on the subject.  (And it's not at all "too detailed for listserv purposes," either.)  Welcome to CONLAWPROF!  (Love the Texas piece, BTW; highly recommended, along with Dan Meltzer's "counterpunch" in Stanford.)

There's a lot in your post to ponder.  For the time being, a few somewhat inchoate questions occur to me:

1.  You write in paragraph 4 that "the government 'penalizes' a right when it imposes adverse consequences (which includes the withholding of a benefit the government would otherwise provide) upon the exercise of the right and does so for the purpose of punishing or deterring that conduct."  Is your reference to "a benefit the government would otherwise provide" meant to refer to the same inquiry you raise in the next paragraph (#5), namely, "[t]aking as a given the offeree's refusal to comply with the state's 'demand', would the state offeror better advance its legitimate and actual interests by withholding the benefit offered or by granting it notwithstanding the offeree's (constitutionally protected) choice to do x?"  I assume the two are meant to be the same thing; but in the first formulation you refer to what the funding government *would* do, while in the second it appears that the question is what the government (a "reasonable" government?) *should* do in the face of a declination of the condition by the beneficiary.  More to the point:  How is a court supposed to discern what the [federal] government "would" or "should" do in the face of a beneficiary's declination of the conditions?  Is this simply a question of counterfactual legislative intent, analagous to what a court does when it attempts to answer questions of severability?  Or should the court defer to what the legislature *says* it would do?  Or should a court apply certain constitutionally compelled presumptions about what the legislature would do, in light of the "rights" at stake?  (E.g., how is the court supposed to determine whether, in Dole, "federal interests in promoting highway safety would have been better advanced by giving the State all federal highway funds otherwise allocable under a formula that only takes into account such factors as annual miles driven and the like"?)

2.  Back to your proposition that "the government 'penalizes' a right when it imposes adverse consequences (which includes the withholding of a benefit the government would otherwise provide) upon the exercise of the right and does so for the purpose of punishing or deterring that conduct."  How important is the final clause?  What if the government imposes the condition not (or at least "not only") "for the purpose of punishing or deterring that conduct," but primarily (or exclusively) because the government does not wish to subsidize or facilitate in any way the state conduct in question?  (That's the principal rationale underlying the "cross-over" spending statutes (e.g., title VI, the Rehab Act, RLUIPA) that you discuss in your Texas piece and that I've invoked in this thread.)  Does that change your analysis?  If so, couldn't the federal government almost always rely upon such a theory?

3.  You might be surprised to learn that I tentatively concur in the vast majority of what you write.  Certainly your analysis seems very persuasive to me with respect to classic unconstitutional conditions doctrine, involving many (if perhaps not all) individual rights.  However (and you knew there'd be an "however," right?) don't you take a pretty big leap in assuming the answer to the central question that we've been debating -- namely, whether the Constitution establishes "rights" of States vis-a-vis Congress that are in any meaningful sense analogous to the individual rights appearing in the Bill of Rights and post-Civil-War Amendments?  *Of course* if "states' rights" were a constitutional mandate on the order of individual rights, then Dole is wrongly decided.  If the Court were to apply Perry v. Sindermann, Sherbert v. Verner, Nollan, etc., to Dole, South Dakota wins in a per curiam, right?  That is to say, I can agree with you that that "all offers of benefits conditioned upon waiver or non-exercise of a constitutional right raise the same basic issues."  But just because the "basic issues" are identical doesn't mean that the outcome or analysis are.  Isn't it critical to next inquire what the nature and scope of the putative "right" is?  To be sure, if one thinks that a state's "right" not to have Congress require imposition of a certain drinking age is in some meangingful sense equivalent to the right of a schoolteacher (in her private capacity) to advocate or believe in Communist insurgency, then your conclusions about Dole might be correct.  And, to be sure, the "state's rights/sovereignty" theme has an increasingly (I would say distressingly) prominent place in the Court's recent federalism decisions.  But that doesn't make it correct, does it?  (Especially in light of the fact that the question in Dole is the scope of an affirmative congressional power, rather than of an express constitutional prohibition.)

4.  Sorry, I'm a government lawyer and hence woefully short of the $1 million that it would take to induce (coerce?) you to wash my car.  Besides which, it's not in my nature to make offers that can't be refused.  Nevertheless, it's good to know that in an alternative universe I wouldn't be censured!

Marty Lederman (in my personal capacity)


-----Original Message-----
From: Mitchell Berman [mailto:mberman at MAIL.LAW.UTEXAS.EDU]
Sent: Monday, August 23, 2010 12:20 PM
To: CONLAWPROF at listserv.ucla.edu
Subject: Spending, Unconstitutional Conditions, and Coercion


I've been told that Marty Lederman solicited my views on the spending power
(along with those of my colleagues Lynn Baker and Ernie Young). I'm happy
to weigh in. I should say at the outset, though, that I've just now joined
the listserve, so please understand if anything I say exhibits what might
strike you as woeful ignorance of what has already been said on this theme.

Here, somewhat simplified, but nonetheless probably too detailed for
listserve purposes, are my views:

1. I do believe in a general theory of unconstitutional conditions.  That
is, I think that all offers of benefits conditioned upon waiver or
non-exercise of a constitutional right raise the same basic issues.  The
core (but not sole) possible constitutional infirmity of a conditional
offer of a putative "benefit" is that it is coercive.

2. Coercion and its variants are used in a large number of ways in
normative and practical reasoning.  There's only one sense, though, that's
relevant for purposes of determining when a conditional offer is
unconstitutional by reason of coercion.  That's the sense in which one who
engages in coercion commits a prima facie wrong.  Coercion is the wrong of
trying to manipulate a person to act in a certain way (which could include
not acting) by means of placing wrongful pressure on her freedom to do
otherwise.  This is true of any normative system--ethics, criminal law,
constitutional law, etc.

3.  Coercion is a characteristic only of biconditional proposals (or their
functional equivalents), that is, proposals that contain a conditional
offer conjoined to a conditional threat.  The proposal is coercive in the
relevant sense if it would be wrongful for the offeror to engage in the
action threatened upon the offeree's failure to comply with the demand.
This is why, of course, the gunman's proposal ("Your money or your life")
is both morally and criminally coercive.

4. The challenge for unconstitutional conditions purposes, of course, is to
determine when it would be unconstitutional for the state to carry out its
threat--i.e., to withhold the benefit it offers.  The instinct is to say
that the answer is "never" in unconstitutional conditions cases: that's
what it means to call the thing offered a "benefit."  But this is too
quick.  The reason is this:  the very concept of a constitutional right
entails, at a minimum, that the government may not respond to a
right-holder's having exercised (or refused to relinquish) a right by
treating the right-holder less well than the government otherwise would but
for a purpose of punishing or deterring exercise of the right in question.
(I doubt that a coherent, or minimally persuasive, definition of
constitutional right can be advanced that does not include this criterion
or something very much like it.) I would say, accordingly, that the
government "penalizes" a right when it imposes adverse consequences (which
includes the withholding of a benefit the government would otherwise
provide) upon the exercise of the right and does so for the purpose of
punishing or deterring that conduct.  A conditional offer is therefore
coercive--hence presumptively unconstitutional--whenever the government
would, in withholding the benefit upon failure of the condition, be
penalizing the exercise of a right in the sense just defined.  (The state
is constitutionally free to penalize much conduct; it is not free, however,
to penalize exercise of a constitutional right.  That is, in large part,
what it means to have a constitutional right.)

5. In seeking to determine whether a proposal is coercive on the grounds
that carrying out the threat would "penalize" the exercise of a
constitutional right, the dispositive question will reduce to this: Taking
as a given the offeree's refusal to comply with the state's "demand", would
the state offeror better advance its legitimate and actual interests by
withholding the benefit offered or by granting it notwithstanding the
offeree's (constitutionally protected) choice to do x?

6. If all this is so, then Dole was wrongly decided: no matter what South
Dakota's minimum legal drinking age, federal interests in promoting highway
safety would have been better advanced by giving the State all federal
highway funds otherwise allocable under a formula that only takes into
account such factors as annual miles driven and the like.  (I'm just
asserting this at present; the full argument is somewhat lengthy.) But this
does NOT mean that it is categorically unconstitutional for Congress to use
its Spending Power to achieve ends it could not achieve through its other
powers.  For example, even though Congress might not be constitutionally
permitted to compel states to buy computers for their public schools,
Congress would not be threatening a penalty were it to offer money for
high-speed internet access on the condition that a state deploy a specified
number of personal computers in each public school.

As I mentioned, I fear that this summary is, at the same time, too detailed
for listserv purposes and yet nonetheless too condensed to be fully clear,
let alone fully accurate.  So here's a somewhat shameless plug:  my views
are elaborated in an article forthcoming in November's Georgetown Law
Journal.  Snippets also appear in a recent Texas Law Review article: 79
Tex. L. Rev. 1037, 1130-72.

I suspect, to wrap up, that many people who thought that prior discussions
of the subject had the air of unreality about them would think all that
I've just said suffers from that defect in spades.  I'd be happy to explain
why I don't think that's so and why I think that some existing case
law--most notably Nollan--already reflect this analysis.  But that would
take a separate posting.  I will note this, though:  Nollan and Dole
employed wholly different senses of "coercion" (what Scalia in Nollan
termed "extortio[n]").  Nollan used the concept in the sense of threatening
what it would be wrongful to do.  Dole, in contrast, used the concept in
the sense of imposing pressure substantial in magnitude.  (These are
entirely different senses conceptually notwithstanding obvious extensional
overlap.) Were Dole's conception a sensible one to employ, then Sandy
Levinson would be right, I think, that plea bargaining would be
unconstitutional.  But the Dole sense is not useful for most normative
purposes: were I in desperate financial straits and were Marty Lederman to
offer me $1 million to wash his car, his proposal would not warrant censure.

Mitch Berman