By RANDY J. KOZEL
Review of Purchasing Submission: Conditions, Power, and Freedom, by Philip Hamburger
Cambridge: Harvard University Press, 2021
What the government wants, the government buys. That’s one way to describe the thesis of Philip Hamburger’s Purchasing Submission: Conditions, Power, and Freedom.
The U.S. Constitution provides a blueprint for the enactment and execution of laws. But that blueprint is only the beginning in understanding the various “pathways of government control” at work in modern America (11). In a 2014 book, Professor Hamburger discussed one of those pathways: regulation by administrative agencies. Purchasing Submission takes up another technique—which sometimes is linked with administrative action and sometimes is not—by which public officials utilize inducements to encourage compliance instead of demanding it outright. The federal government uses money to encourage states to change their drinking ages (46) or expand their Medicaid coverage (203). State and local governments permit landowners to alter their property in exchange for granting easements (226). Governments of all types provide salaries and benefits to employees who abide by workplace rules and carry out professional tasks (177). The list goes on and on.
Many of these strategies are unremarkable, and even laudable. Government couldn’t function without employees, and the employment relationship necessarily entails some degree of managerial oversight. Likewise, monetary grants can serve the greater good by, among other things, allowing the government to enlist allies in worthwhile pursuits. Yet as Professor Hamburger explains, governance via inducement also raises concerns. Some government programs put pressure on constitutional liberties like the freedom of speech. Others chip away at principles of federalism by challenging the sovereignty of the states. Still others complicate the separation of powers by melding the legislative, executive, and adjudicative functions.
Notwithstanding these dangers, it’s far from obvious what, if any, role the Constitution should play in limiting the government’s power to attach conditions to benefits. Viewed from one angle, government conditions aren’t the stuff of constitutional law at all. Voluntary agreements between individuals and the government are just like countless other agreements that occur every day. The validity of those agreements doesn’t depend on the Constitution. It depends on the law of contracts.
And, indeed, the U.S. Supreme Court has looked to contract law in seeking to resolve disputes over government conditions. Yet it has also made clear that the Constitution remains an important part of the story. The authority of the federal government (which will be my focus here) is constrained even when officials are technically asking for compliance instead of insisting upon it. While many conditions are perfectly fine, some turn out to be unconstitutional.
Under existing law, the legality of conditions thus has something to do with contracting and something to do with constitutional principles that transcend the domain of voluntary exchange. Purchasing Submission offers a powerful challenge to the former concern, and some readers might be moved to conclude that the Supreme Court’s jurisprudence requires a reset. But even if contract law serves as a valid jumping-off point, Professor Hamburger sheds light on the unique challenges that arise when the government uses inducements to blaze a trail instead of trudging through the Constitution’s established (if not always inviting) paths. The law of conditions may draw on the law of contracts, but it must also draw on something more.
I.
Imagine that the date is September 17, and you receive a call from an unknown number. You answer, against your better instincts, and learn that the caller is a federal official in Washington, D.C. The official reminds you that September 17 is Constitution Day and insists that you commemorate the date.
The proper response to such a demand, and the response most consistent with the American constitutional tradition, is: “Buzz off.” If an individual wants to celebrate Constitution Day, he is welcome to do so. The government can also engage in its own programming to mark the occasion. Even so, there is no lawful basis for public officials to force private individuals to celebrate any event, no matter how important.
No basis, that is, unless you happen to be an educational institution that receives federal funds. Such institutions have a duty each September to, as the U.S. Department of Education puts it, “hold an educational program about the U.S. Constitution for [their] students.” As someone who teaches about the Constitution for a living, I hardly object to such programming on the merits. The enterprise, however, takes on a decidedly different complexion when it arises by fiat. There is something striking about the government’s commandeering individuals to celebrate the very document that protects them from official orthodoxy.
But is the government really commandeering anyone when all it does is offer money to those who play ball? A school could avoid any obligations surrounding Constitution Day simply by turning down federal subsidies. In the same way, a state could decline federal money and exercise its prerogative to set its own drinking age. And a state employee could quit working for the government to free himself of various restrictions on his speech and conduct. Maybe these types of relationships are best understood as run-of-the-mill contractual arrangements rather than governance mechanisms with constitutional implications.
II.
The Supreme Court has recognized the conceptual similarity between conditions on benefits and contractual arrangements, noting that the former can seem to be “much in the nature of a contract.” The essence of a contract is voluntary exchange between willing parties. If one party to a contract doesn’t like what he signed up for, he generally has no one to blame but himself. After all, he could have walked away.
Applying the rules of contract law to the government’s attachment of conditions suggests a similar approach: If you don’t like the government’s terms, don’t take the benefit that comes with them. So long as the government isn’t making demands—as it does when, say, it attaches a criminal punishment to a statutory prohibition—it exercises a form of “soft power” (108) that doesn’t raise serious constitutional concerns.
Yet the law of contracts depends on the presence of a bargain that is genuinely voluntary. Take away the parties’ choice, and you take away the justification for enforcement. In addition, there are some things we simply don’t allow contracts to do; even the most eager band of bankrobbers can’t bind themselves to go through with tomorrow’s heist. Contract law tells us which agreements are enforceable, and also which agreements are not.
Professor Hamburger explores the vulnerabilities of a consent-focused, bargain-centric approach in challenging the Supreme Court’s adoption of a contractual mindset (31– 33, 200). For some, the flaws he highlights may be reason enough to repudiate any contractual focus. But even for those who are inclined to view the contractual approach as holding some promise, Professor Hamburger’s arguments suggest the need for attention to the failures of the bargaining model. An agreement with the government might be infected by duress because the government’s counterparty had no meaningful choice in the matter (200). The agreement may have arisen from the government’s undue influence in exploiting a relationship (213). It may contravene public policy in its substance and effects (215). At very least, a contractual vision of government conditions demands appreciation of the various defenses to liability alongside the potential bases for liability. The Supreme Court has started down this path, most notably by rejecting conditions that are coercive or that fail to put offerees on notice of what they stand to lose. Yet the law of conditions is far less developed than the law of contracts. That state of affairs is problematic if the former is expected to follow the latter’s lead.
III.
There’s a deeper problem with relying too heavily on the analogy to contract law. Even when contractual principles are properly understood and applied, they can’t account for all the implications of government conditions. As Professor Hamburger reminds us, “no amount of consent can relieve the government of its constitutional limits” (242). This is not to suggest that all, or even most, conditions bring about outcomes that the Constitution forbids. The point is that conditions can subvert the processes set forth by the Constitution for the pursuit of public objectives. The American constitutional project depends on the premise that rights and structure are inexorably linked. If we treat constitutional processes as defeasible, we might not like what happens to law, liberty, and democracy.
Of course, it’s never just structure for the sake of structure. We care about the separation of powers because we think private citizens stand to benefit from keeping the authority to create, execute, and interpret laws in different places (95–96). Likewise, we care about federalism because we want (at least sometimes) states to be in position to “push back” on our behalf “against the centralized interests and prejudices that flourish in Washington” (125). These commitments should lead us to worry when the federal government seems to be taking advantage of the states, or when a complicated federal program blurs the lines between legislation, execution, and adjudication. In any given situation, it may be true that the federal government could have pursued the same outcomes through alternative avenues without causing any constitutional consternation. But process matters. When the government spends its way to political success, we have no way of knowing whether resort to “the Constitution’s more regular and public process” would have been availing (88)—and even if it was, whether it might have resulted in changes at the margins of a law, or greater mobilization of aggrieved stakeholders, or political compromises with wide-ranging ramifications.
We would, quite rightly, be deeply skeptical of the government’s announcement that it was dispensing with the requirements of bicameralism and presentment because they are just too difficult to satisfy. Professor Hamburger implores us to assume the same skeptical posture when the government achieves its goals by dangling benefits. The government can’t loosen the Constitution’s restrictions unilaterally. Nor can states or private citizens license it to do so (153). Article V sets forth an amendment protocol that depends on widespread consensus and public action. Cumbersome though it may be, that protocol is the only lawful means of renegotiating the constitutional compact (254).
IV.
Stepping back, I have described two principles as informing the law of government conditions. The first is that if we accept the Supreme Court’s current, contractual approach to the problem, we must insist on assurances of a legitimate bargain worthy of enforcement. The second is that even where those assurance are present, contract law can’t be the only place we look. As Professor Hamburger emphasizes, some constitutional imperatives resist waiver even by willing and knowledgeable parties. Theoretically, we might respond by treating arrangements that contravene the Constitution as void for reasons of public policy—much as we would refuse to enforce a contract to rob a bank. Ultimately, though, we would still be left with the question of which constitutional principles are defeasible. In seeking an answer, we would still need to look beyond the realm of contract law.
As for where to start, allow me to offer a suggestion that I’ve discussed in other work. A key distinction, which the Supreme Court has recognized and which Professor Hamburger notes (64), is between conditions that restrict the use of a benefit and restrictions that seek to control other conduct. It’s one thing to tell people what they can and can’t do with a federal grant. It’s quite another thing to tell them what they can and can’t do on their own time, with their own money, in pursuits that have nothing to do with the grant. Much the same is true of interactions between the federal government and the states. Indeed, one of the problems the Supreme Court found with Congress’s attempt to expand Medicaid coverage in 2010 was that states had to provide new services if they wanted to keep participating in an existing program. That type of mismatch is a red flag. As Justice O’Connor explained decades before the Medicaid decision, “When Congress appropriates money to build a highway, it is entitled to insist that the highway be a safe one.” But the government oversteps when it uses the allure of highway funding to influence other areas of “social and economic life.” The flaw in the Medicaid program and the danger highlighted by Justice O’Connor are different instantiations of the same phenomenon: the government’s improper use of leverage to connect “the funding for one sort of thing” with “conditions about other sorts of things” (64).
When the government threatens to withhold benefits based on unrelated or remote behaviors, it moves beyond the stewardship of public resources into the world of regulation. But as Justice O’Connor observed, and as Professor Hamburger underscores (61), attempts at regulation trigger constitutional requirements that go far beyond writing a check. The use of leverage can also make it harder for people to understand what the government is doing and to figure out whom to hold accountable. And leverage poses a unique threat to the constitutional order by dramatically extending the government’s reach. To be sure, some restrictions on the use of benefits are unavoidable if the government is to achieve public objectives. Yet the government doesn’t need to control the behavior of recipients outside the boundaries of a federal program. Where the Constitution’s individual rights or structural principles are at stake, attempts to reach beyond a federal program can come at the cost of liberty and democracy.
Acknowledging the centrality of leverage need not entail rejecting the contractual mindset. Under a contractual approach, the threshold inquiry should concern the terms of the agreement and the process that led to them. If there was no genuine bargain—if, for example, the agreement was infected by fraud or duress—there is no basis for enforcement. Even in the presence of a bona fide agreement, however, the government lacks authority to manipulate behavior unrelated to the provision of a public benefit. The government may be a contracting party, but it is also something more.
Posted on 17 November 2022
RANDY J. KOZEL is Fritz Duda Family Professor of Law at the University of Notre Dame School of Law. He is the author of Settled Versus Right: A Theory of Precedent (Cambridge University Press, 2017).
