Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
First, a confession. Having concluded early on that constitutional challenges to the individual mandate were meritless, I have paid far less attention to the debates over the constitutionality of the ACA than is professionally responsible. I’m coming to this party embarrassingly late.
Next, a little background. About a dozen years ago, I offered an original solution to the unconstitutional conditions problem. (Coercion Without Baselines: Unconstitutional Conditions in Three Dimensions, 90 Geo L.J. 1 (2001).) Very roughly, the account purports to explain (a) how conditional offers of benefits that the state is not required to provide can be impermissible because coercive and (secondarily) (b) how conditional offers can be unconstitutional even when not coercive. As best I can tell, my account has had zero influence. I’d guess that the paper has been read by about a dozen folks, understood by half, and thought plausible by half again. Mostly my fault, no doubt. But as it happens, I still believe the account was correct—not in all particulars, of course, but in more than just very broad strokes.
Now, to the chase. Sandy is one of the very few scholars who both (a) read the piece and (b) entertains the possibility that there might be something to my account. So he invited me to speak yesterday with his class about the ACA and conditional spending. Thanks to that prod, I’ve now bothered to read Paul Clement’s brief and Marty’s response, posted here on March 27. My provisional conclusions are: first, that Paul Clement’s arguments to the effect that the Medicaid provisions of the ACA are unconstitutionally coercive are mistaken; and second, that his conclusion is nonetheless correct. Here’s an outline of my analysis. (Even though just an outline, it is very long. Sorry about that.) You will see that, unlike you working constitutional lawyers, I don’t start with the cases. Instead, I start by trying to analyze the relevant normative concepts. I think that’s the better way to go when, as here, the case law is plainly a muddle. I don’t claim that this way of proceeding offers the greatest hope of successful judicial uptake. I’m claiming, at most, merely that it’s right.
1. Conditional spending proposals are really biconditional proposals. Simplified, I understand the Medicaid provisions at issue here to operate as follows: If you (a state) agree to contribute specified sums of your own funds for the medical care of various categories of needy persons, then we (the federal government) will give you some much larger sum of funds for the medical care of persons in each category; if you do not agree to contribute the specified sums for all categories of beneficiaries, then we will not give you federal funds for any category of beneficiaries.
2. Both sides to the debate play fast and loose with the notions of coercion and compulsion. Of course, Dole does too, when recognizing the possibility that some particular spending condition “might be so coercive as to pass the point at which pressure becomes compulsion.” The overall impression from the Clement brief is that it treats coercion and compulsion as synonymous. (For a particularly good illustration, see p.27, but it’s reasonably clear throughout, I think.)
3. If the conflation of coercion and compulsion is a mistake, then significant consequences might follow. In particular, it would be incumbent upon challengers to explain which is the constitutional wrong—coercion or compulsion, or perhaps the union of the two—and then to carefully establish that the features of the Medicaid provision to which they object make out the concept that is constitutionally significant and not the related concept that might be constitutionally irrelevant.
4. In fact, coercion and compulsion are different concepts with different normative (including constitutional) significance. Coercion is a type of wrong. It’s something that we ought not to do, and that makes us properly subject to criticism (or worse) if we do. In particular, coercion is the wrong of exerting wrongful pressure on a subject to do as the coercer wishes. Normatively (as opposed to descriptively) speaking, compulsion is a type of excusatory or mitigating condition. It’s something to which, ideally, we would not be subject, and that, when present, can ground relief from responsibility or liability. I recognize that the foregoing claims are both abstract and merely asserted. So putting aside for the moment just what is the normative difference between coercion and compulsion, the more critical claim for the moment is simply that these are distinct concepts. And that claim is demonstrated by the fact that there exists both compulsion-without-coercion and coercion-without-compulsion. (If you accept all this, you can skip points 5-7.)
5. Here’s just one quick example of compulsion-without-coercion. Law student, L, accepts a job with a firm that represents clients to whom L strenuously objects or that, in any other fashion, runs contrary to important principles or values of L’s. L wouldn’t accept the job but for the facts that it’s L’s only offer and that L has very substantial loan obligations. L can properly answer, in response to the charge that she has compromised her principles, that she “was compelled” to do so or “had no choice.” Nonetheless, L wasn’t “coerced into” accepting the job and nobody—not the firm or anybody else—is properly charged with coercion.
6. And here’s an example of coercion-without-compulsion: T, a thug, threatens H with some moderate violence unless H turns over his briefcase. H complies. Unbeknownst to T, the briefcase contains most of H’s & W’s savings. When H returns home and reports the robbery, H’s spouse, W, is aghast. “How could you possibly have given up all our savings for Junior’s education?!” W demands. If H responds that he “was compelled to do so” or “had no choice,” W will be right (depending upon the details, of course) to reject the claim. H was not compelled to give up that money. Given the threat he faced, H should have resisted or run. Yet T did engage in coercion. T didn’t merely try to coerce H, for he did, after all, succeed. T coerced H into giving up his money, though H wasn’t compelled to do so. (T threatened H with unpleasantness that T was wrong to threaten but that H could have endured and should have under the circumstances.)
7. Naturally, there are countless instances of interactions that amount to both coercion and compulsion—what we might term either coercion-through-compulsion or compulsion-by-coercion. (“Your money or your life” is a paradigm.) That is to be expected because coercive proposals are intended to induce compliance with a condition or demand, and the issuer of the proposal—the coercer—understands that success in this aim is a function of the pressure that the target of the coercion experiences, and not the bare wrongness of the consequence threatened. But the key point is that coercion and compulsion are analytically distinct and can and do come apart in the real world.
8. The critical question, therefore, is this: In the context of constitutional challenges to the Medicaid provisions of the ACA (and in the spending context more generally, and in other conditional offer contexts more generally still), which is or should be the operative concept—coercion or compulsion?
9. I have already said that the Clement brief speaks in terms of both coercion and compulsion, without distinguishing the underlying ideas. To a very great extent, its favored language is that of coercion. By and large, however, the concept it invokes is that of compulsion. The gist of the petitioners’ argument is that acceptance of the condition is “not truly voluntary,” that the states are “given no meaningful choice,” and that declining the deal is not “a real option.” (p.22)
10. Therefore, the most obvious possible responses to Clement are: (a) states do have a realistic choice regarding whether to accept this deal (i.e., are not compelled to accept it); or (b) compulsion is the wrong concept, and coercion is the right one.
11. Response (a) is a bad response: rejecting this deal is not a real option for the states. There is a perfectly plausible sense in which the states are compelled to accept. (Imagine that a state legislator had run for office, prior to passage of the ACA, vowing that she would not vote to spend state monies to provide health care for non-disabled, non-elderly adults. After the ACA, she votes to accept the deal. Surely she could defend her vote to her constituents on the ground that she was “compelled” to do it.)
12. But response (b) is a good response. Coercion is the constitutionally relevant concept, compulsion is not. Compulsion cannot be the constitutionally relevant concept because pressure sufficient to realize compulsion can be exerted by action that is itself wholly legitimate. Our students and employees are not infrequently compelled to do something they would much prefer not to do because the consequences we would impose, wholly legitimately, render nonperformance or noncompliance not realistically eligible for them. That might be unfortunate for them, but doesn’t render our conduct impermissible. Coercion is a wrong. So if a conditional spending proposal is coercive that looks like a promising ground for holding it unconstitutional.
13. Interestingly, Nollan v. California Coastal Commission, decided a mere three days after Dole, recognized precisely this. The Court struck down the land-use exaction at issue there as an “out-and-out plan of extortion” not because the Commission’s proposal exerted so much pressure on the Nollans that they had “no choice” but to accept, but because the pressure exerted was wrongful in character. (What rendered the proposal wrongful in character? I’ll get to that below.) In the Court’s eyes, the wrong of the conditional proposal in Nollan was that it was coercive, not that it amounted to compulsion. As it happens, I’m skeptical that the proposal in that case was in fact coercive. The point, though, is that the Nollan Court had grasp of the right concept.
14. I have argued (or sometimes just asserted) the following: (1) coercion and compulsion are not synonymous but represent different concepts; (2) although the Clement brief speaks in terms of coercion and compulsion seemingly interchangeably, the concept that it invokes as grounds for striking down the Medicaid provisions of the ACA is the concept of compulsion; and (3) a conditional spending proposal is not rendered unconstitutional by the fact that (for reasons of political economy) the state offerees have no realistic choice but to accept (i.e., that the proposal “compels” the states to accept). If all this is right, then Clement’s argument is wrong.
15. However, I have also argued (4) that a conditional spending proposal is rendered unconstitutional by the fact that it exerts wrongful pressure on the state offerees (i.e., that the proposal coerces the states to accept). If this is right, then we cannot conclude that the Medicaid proposal is constitutional without determining whether it exerts wrongful pressure on the states to accept.
16. Perhaps a conditional proposal can exert wrongful pressure on the offeree—and thus amount to the wrong of coercion—in various ways. But here’s the most common and salient way: a proposal is wrongful if the act it threatens would be wrongful. This, of course, is why the gunman’s threat is coercive: what it threatens—shooting the victim—would be wrongful. By wrongful, though, I do not mean morally wrongful. Rather, I mean wrongful by reference to the norms of the particular normative system at issue. So a conditional proposal is unconstitutional because coercive if the act threatened would be unconstitutional.
17. The Medicaid provisions of the ACA should be held unconstitutional, then, if the consequence that the biconditional proposal threatens to impose on a non-accepting state—withdrawal of all Medicaid funding—would be unconstitutional. Would it?
18. Marty says that it would not be—in fact, that it could not be. He derives that conclusion from a striking major premise that he draws from an amicus brief filed for former Surgeon General David Satcher and others: “For the financial inducement offered by Congress to become unconstitutionally coercive, that inducement must, at a minimum, deprive the state of something to which the state is otherwise entitled.” And, Marty adds, “the state is not entitled to the federal funds at all.” (p.9)
19. Marty is right that the state is not “entitled” to federal Medicaid funds. But what we might dub the Satcher principle is very deeply mistaken: a conditional threat to withhold funds to which an offeree is not otherwise entitled can be unconstitutionally coercive. Indeed, it is slight exaggeration to say that that is the entire point or insight of the unconstitutional conditions doctrine. It is sometimes unconstitutional because coercive to threaten to withhold a benefit. And what makes such a proposal coercive, when it is, is that the withholding would be unconstitutional. And the withholding would be unconstitutional if it were motivated or based on bad reasons.
20. What could possibly be a bad reason for withholding a benefit—a reason that would render the withholding unconstitutional and, as a further consequence, that would render the conditional threat to withhold the benefit unconstitutionally coercive? One bad reason derives from this plausible general truth about constitutional rights: the government has a duty not to treat a right-holder less well than it otherwise would for the purpose of punishing the right-holder for exercising her (or its) right or for the purpose of discouraging other right-holders from exercising their rights. (This, I think, is just what Justice Scalia recognized was constitutionally impermissible in his opinion for the Court in Nollan.) In the context of conditional federal spending to states, this means that the federal government may not withhold a benefit—even one to which the state is not constitutionally entitled—for the purpose of punishing states for not complying with the stated condition if the state has a constitutional right not to comply.
21. If this is right, then two final questions must be answered to resolve whether the ACA’s Medicaid provisions are unconstitutionally coercive: First, do the states have a constitutional right not to comply with the stated condition? Second, if they do, would the reason for withholding all Medicaid funds on a state’s non-acceptance of the condition be to punish the state for doing what it is constitutionally entitled to do?
22. I think that the answer to that first question is relatively easy. The condition at issue here is that the state pay some amount of money from state coffers to provide health care for some class of beneficiaries (non-disabled, non-elderly persons with income less than 138% of the poverty line). Under pretty well-settled understandings of our federal structure, the states do have a right against the federal government not to spend that money. Such a right is established, I’d think, by the various anti-commandeering doctrines. (I fully grant that the rest of my argument depends upon this premise. I think it’s pretty secure but don’t have arguments for it.)
23. The answer to the second strikes me as pretty easy too. The key point is that the state that does not agree to pay some relatively small sum to provide health care for the new class of Medicaid beneficiaries is still agreeing to pay some other sum, as Congress demands, to provide health care for other classes of beneficiaries. The states’ argument is not—or at least should not be—“that a state may freely choose which conditions on the use of federal funds it will honor.” (Marty, p.10) The argument is that if the state is willing to pay the $X demanded of it to provide health care benefits to disabled persons, then the federal government would have no legitimate, public-oriented reason for withholding its share of Medicaid funds destined for disabled persons just because the state decides not to pay the $Y demanded of it to provide health care benefits to an entirely different class of beneficiaries. The federal government’s reason for doing that would only be to punish the state for doing what it is entitled to do (or to deter other states from doing what they are entitled to do).
24. To be sure, the federal government has a yet further purpose in mind when punishing or discouraging the exercise of what we are supposing is the state’s constitutional right to spend its money (or not) as it sees fit. But that further purpose is relevant only to whether the constitutionally wrongful withholding of the benefit is constitutionally justifiable all things considered; that further purpose does not bear on whether the withholding is wrongful.
25. To sum up, here’s the heart of the unconstitutional conditions doctrine in a bumper sticker: it is unconstitutionally coercive for a state to threaten to withhold even a “gratuitous benefit” from a right-holder if its reason for withholding that benefit would be to punish or discourage the exercise of constitutional rights. This is true regardless of whether the loss of the offered benefit would be so consequential for the offeree that it has no realistic choice but to accept the condition. Compulsion without coercion does not make out a constitutional wrong, and coercion does make out a constitutional wrong even if not amounting to compulsion. The Medicaid provisions of the ACA appear to be coercive, hence unconstitutional, for the reasons I have offered though not for the reasons Paul Clement did.