an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.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
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto 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 princeton.edu
Rick Pildes rick.pildes at nyu.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
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Sandy gets my argument just right. (Thanks, Sandy!) Several of the comments, and several emails I have received, reflect confusion or uncertainty regarding what I mean by punishing the exercise of a constitutional right. (See paragraph 23 of my initial post.) As Andy Koppelman asked me: Am I not just reviving the discredited idea from Butler that Congress may not use its spending power to “purchase a compliance which Congress is powerless to command”?
The short answer is that I am not. Any conditional offer can be formalized as a bi-conditional of the following form: If you waive your right to X, then we will provide you benefit Y; if you do not waive your right to X, then we will not provide you benefit Y. Simplified: if –X, then Y; if X, then –Y. We are interested in those cases in which the offeree has a constitutional right to X. Now suppose that the offeree (be it an individual or a state—it doesn’t matter which) declines the offer. That is to say, the offeree exercises its constitutional right to X. In that event, the offeror withholds the offered benefit, Y.
On my analysis, the offeror infringes the offeree’s constitutional right to X if the offeror does not have legitimate public-serving reasons for withholding Y. Keep in mind: we are inquiring into the reasons the offeror would have for withholding the benefit on non-satisfaction of the stated condition; we are not inquiring into the public-serving reasons for extending the proposal or for attaching this particular condition. (This is an absolutely critical distinction; if you glide past it, then you have no chance to understand the analysis.) There’s a pretty simple test for determining whether the offeror would have acceptable reasons for withholding Y. This test is imperfect but good as a first pass. Imagine two things: first, that there is only a single offeree, not a class of them; and second, that the offeror knows that the offeree will not accept the deal, i.e, that it will not comply with the condition. Would the offeror, if genuinely motivated to advance the public interest, nonetheless withhold the benefit at issue? If so, then the withholding of the benefit does not punish the offeree for exercising its right to X. If not, then the withholding of the benefit does punish the offeree for exercising its right to X, in which case the conditional proposal threatens an unconstitutional penalty, hence constitutes the constitutional wrong of coercion.
Now apply this analysis to the Medicaid provisions. I set forth my simplified understanding of the provisions at issue in Paragraph 1 of my initial post. Here’s another way to describe things, as I understand it. Congress makes two separate offers: (1) if you pay $X for health care for the blind in your state (i.e., if you waive your constitutional right not to pay $X for health care for the blind), we will pay $2X for health care for the blind in your state; (2) if you pay $Y for health care for the nearly impoverished in your state, we will pay $2Y for the nearly impoverished in your state. Florida says: we’ll take deal (1) and decline deal (2), thank you very much. As I understand the ACA, Congress is saying in effect: if you don’t accept deal (2), then we withdraw offer (1). On my analysis of the unconstitutional conditions problem, the question becomes: Would Congress have any legitimate public-serving reason to then withdraw offer (1)?
My answer is that it would not. Whatever federal interests are served by offer (1) are served just as well regardless of whether Florida accepts deal (2) too. The only reason the federal government would have for pulling Medicaid for the Florida blind when Florida refuses to pony up for its nearly impoverished is to bolster the credibility of the federal government’s threat with respect to other states. That is not a permissible reason for the government to treat a right holder less well than it otherwise would.
Importantly, Marty says that the Medicaid provisions in the ACA do not in fact work as I have imagined them to work. I do not quite understand his argument. But I acknowledge that the application of my general analysis to the ACA does depend upon the picture I have just sketched regarding how the challenged provisions work to be schematically accurate. If it isn’t, then my conclusion might not follow.
So for purposes of understanding my general analysis, and not for purposes of applying that analysis to the Medicaid provisions of the ACA in particular, consider how it applies to another conditional spending program. Consider federal funding programs that benefit colleges and universities. Here are three actual or hypothetical conditional offers from the feds: (1) if you arrange your financial aid program in such-and-such a fashion, we’ll give you $X for financial aid; (2) if you investigate such-and-such questions of astrophysics, we’ll give you $Y for those experiments; (3) if you allow military recruiters on campus, we’ll give you $Z to spend as you wish. University says: we’ll take deals (1) and (2), but decline deal (3), thank you very much. But then Congress says: if you don’t accept deal (3), then we withdraw offers (1) and (2). That, in effect, is the Solomon Amendment.
The best objections to the Solomon Amendment take precisely the same form as what I have argued is the best objection to the Medicaid provisions of the ACA. If you were to take as a given that we would not accept the condition in (3), says University, then you would have no good reason not to give us the benefits offered in deals (1) and (2), assuming that we agree to comply with the conditions in those deals; your only reason for withholding the benefits offered in deals (1) and (2) is to punish us for exercising our constitutional right not to admit military recruiters on campus, or to discourage other colleges and universities from exercising their constitutional rights to do so. And that is not permissible.
My analysis of the ACA also explains why this constitutional objection to the Solomon Amendment is sound—or would be sound if it were true that the offeree universities have a constitutional right not to admit military recruiters on campus. In fact, though, it is plausible that universities do not have such a right. Plausibly, Congress could mandate that universities admit military recruiters on particular terms, as a necessary and proper way to carry out its constitutional power to raise an army and navy. But if Congress could not mandate such action by colleges and universities—if, say, colleges and universities enjoyed expressive rights against such a mandate—then the Solomon Amendment would be unconstitutionally coercive on my analysis.
Sandy worries that even if my general analysis of the unconstitutional conditions problem (what I prefer to call the conditional offer problem) is correct, the correct outcome of the analysis turns upon facts (or quasi facts) that courts usually cannot answer—namely, what the offeror’s reasons would be for doing as it threatens in the event that the offeree rejects the condition. Simply put, the analysis I’ve offered is entirely unadministrable.
To this I have two responses. First, I believe that Sandy overstates the difficulty of the inquiry. In many cases, a conclusion that the offeror would lack legitimate reasons for withholding the offered benefit on failure of the stated condition is easy as pie. Take Dole. The bi-conditional offer at issue there, from the federal government to the states, was this: “iff you legislate a minimum legal drinking of at least 21, then we will give you $X for highway construction and improvement.” Taking as a given a state’s failure to accept the condition, all the legitimate federal interests that justify federal spending on highway construction and improvement would still be served, and served to the very same degree, by granting the $X. There are no significant epistemic difficulties in this case. The spending condition at issue in Dole threatened an unconstitutionally penalty, rending the proposal unconstitutionally coercive. Dole was wrongly decided.
For an illuminating contrast, imagine a different condition. Suppose South Dakota didn’t have an unusually low minimum drinking age but did have an unusually high minimum driving age. Suppose its driving age was 50, and that the federal government had offered $X for highway construction and improvement iff the state legislates a minimum driving no higher than 21. Taking as a given the state’s failure to accept that condition, would it be true—as I claim it was true of the condition actually at issue in Dole—that all the legitimate federal interests that justify federal spending on highway construction and improvement would still be served, and served to the very same degree, by granting the $X? In this case, no. It might be that, in a state with a very high minimum driving age, there simply aren’t enough cars on the road and enough miles driven, to make it worthwhile for the federal government to spend, in that state, $X on highway construction and improvements. If this isn’t obvious to you, take an extreme case. Suppose a world in which some states ban automobile travel entirely, relying instead on rail. And suppose an understanding of our Constitution in which they have a right to do so, by which I mean that Congress could not mandate that they allow cars. Congress could offer $X of highway funding on the condition that the state allow cars. This would be entirely kosher because the government’s purpose in withholding the benefit on failure of condition would not be just to punish or discourage the state’s exercise of its (supposed) constitutional right to bar cars. Congress would be withholding the $X because the $X simply doesn’t buy any benefit in that state.
To repeat, then, my first answer to Sandy’s worry is that sometimes courts, like the rest of us, can infer with great confidence what the offeror’s purposes or reasons would be were it to withhold an offered benefit on failure of the offeree to accede to a stated condition. That said, he is surely right that sometimes we can’t. Plea bargaining is a good example of a situation in which we can’t. We don’t know whether the state is offering less than the sentence that it believes genuinely serves legitimate penological objectives or is threatening more than the sentence that it believes genuinely serves legitimate penological objectives. The proposal is unconstitutionally coercive if the latter is true and not if the former is true. Absent unusual circumstances, however, we simply cannot know which is which. So the courts are left with a dilemma: either allow all plea bargaining, in which case, they will be underenforcing the constitutional norm against penalizing the exercise of constitutional rights, or craft doctrine—what I call “constitutional decision rules”—that might police the practice even if imperfectly.
On this last point, consider Nollan. (For further discussion, see pp. 69-72 of my 2004 article, “Constitutional Decision Rules.”) As I explained in my previous post, Scalia, for the Court, treated the conditional offer of a variance on the condition that the landowner grant an easement as coercive (“an out-and-out plan of extortion”) precisely because he thought that the state commission would not have adequate reasons for withholding the offered benefit in the event that the landowner rejected the condition. How could he have known that? In truth, he couldn’t. Land-use exactions are, in the relevant ways, precisely like plea offers: sometimes the offeror’s reasons for withholding the offered benefit (a variance, a lower sentence) on failure of condition (granting an easement, pleading guilty) would be constitutionally permissible, sometimes not. Scalia says that the Commission would have illegitimate purposes for withholding the benefit “unless the permit condition serves the same governmental purpose as the development ban.” That is baseless as a rule of deduction. But it might make good sense as a prophylactic decision rule that instructs courts to conclusively presume that the state offeror would be extending a coercive proposal when this “essential nexus” between condition and variance is lacking. The Scalia of Nollan crafted just the sort of prophylactic doctrine that the Scalia of Dickerson insisted (wrongly) was constitutionally impermissible.