In Purchasing Submission, Professor Philip Hamburger takes aim at the myriad ways in which many statutes and regulations trade the Constitution’s structural protections of liberty for rule by condition. What is rule by condition? An example illustrates. Let’s assume that you are a non-profit organization. The government will not tax your organization’s income on the condition that you do not exercise speech that endorses candidates for political office. This is just one example of the conditions attached by government Hamburger outlines in the book that implicates a core right, in this case free speech, of all Americans.
For Hamburger, rule by condition is as pervasive to modern American legal culture as water is to fish. Troublingly, it is also as imperceptible to most people as water is to fish. Indeed, even judges, according to Hamburger, “have failed to understand the seriousness of the problem and the possibility of concrete legal solutions.” Hamburger, a renowned legal scholar and one of the nation’s foremost critics of the administrative state, advances an argument against rule by condition that does not require readers to share his level of skepticism about the constitutionality of much of administrative law. Indeed, Congress through its statutes, and the executive branch via its regulations, are both responsible for the creation of conditions. The book is a successful initiation for all lawyers and law students into how the extensive attachment of conditions to statutory and regulatory provisions impairs our legal order. However, while the book is long on identifying the threats of rule by condition, in escalating perniciousness, to the Constitution’s structural protections of liberty, unfortunately, it is short on practical paths forward.
How Bad Is It?
At the core of rule by condition is the privatization of law that, under the Constitution, once was public and generally applicable. Because conditions are not binding without the consent of the private actor, Hamburger notes, “they have thus far been peculiarly effective in defeating constitutional rights.” The feature undergirding the constitutionality of rule by condition is consent. Consent “melts away the Constitution’s limits” to allow rule by condition to flourish. For example, under the statutory condition that a state mandate a minimum drinking age of twenty-one years old, the federal government could withhold five percent of that state’s federal highway funding if that state chooses not to enact a minimum drinking age of at least twenty-one years. This was at the heart of the constitutional challenge in the landmark Supreme Court case South Dakota v. Dole. Conditioning the receipt of even a portion of federal funding on a change of state law is a strong nudge toward uniform, nationwide regulation without having to implicate issues of state sovereignty. Consent, in this case for the state to reject the federal highway funds in favor of preserving a state’s minimum drinking age lower than twenty-one years, is retained, but at significant cost to self-government.
Can consent harmonize rule by condition with constitutional self-government? One of the drafters of the Constitution, James Wilson, typified common understandings of the Founders on consent when he wrote in 1774 that, “no one has a right to any authority over another without his consent: all lawful government is founded on the consent of those who are subject to it.” But the type of consent Wilson articulates, freely offered and freely accepted, is not the type of consent involved in rule by condition. As opposed to a contract between two private parties, rule by condition implicates, or even controls, third-parties. Third-parties cannot freely give or receive consent. Hamburger nicely uses the example of a condition on donors that induces charities to restrict their speech via conditions in the federal tax code because donors are the operative party taking advantage of a condition, a tax-deduction, imposing an otherwise unconstitutional restriction on speech on charities. When third-parties are the true object of conditions, as in the case of restrictions on speech via the tax code, consent becomes too attenuated, thus preventing any harmonization between rule by condition and constitutional self-government.
Also at issue in the discussion of consent as well is the exercise of power. Conditions are what Hamburger terms “alternative pathways of power,” or methods of evading historic limitations on federal activity and violations of individual rights. Though Hamburger’s book title may seem hyperbolic, it is not when viewed through the lens of how conditions channel the exercise of power. Purchasing refers to the inducement of certain behaviors via statutory and regulatory conditions, often with the carrot of the federal largesse but frequently with the stick of federal investigations or worse. Submission refers to the removal of “the authority of local representative choices” in favor of conditional privileges. Rule by condition assumes that the condition itself provides an ameliorative function to political life. Have a problem with a condition? One is free to opt out without any further consequence.
But this understanding of rule by condition neglects two modern developments. First, the choice of opting out is more of an illusion in many if not most cases due to “force or pressure in the inducement.” The carrot and stick analogy is helpful. Hamburger describes regulatory licensing as an example of the stick approach: how consent to a licensing regime that acts as a gatekeeper to entry into a sphere of economic life becomes manufactured by threat of violation of the law. The carrot approach is manifest when the temptation of the federal largesse is so great, for states and individuals, that consenting to rule by condition has stronger appeal than fidelity to the principles underlying the Constitution.
Second, corrosive habits form and become difficult to break under extensive rule by condition. As Hamburger correctly notes, the risk of constant rule by condition creates an “overall tendency” to “lull the people into acquiescence” so that government may direct their lives. Even worse is how the “antibodies” of resistance to otherwise unconstitutional actions become stymied by the threat of violation of the law or bought off by government largesse under rule by condition. When organizing to form political opposition to a condition, some interest groups become the recipients of subsidies or privileges from government, thereby becoming a vested interest in maintaining the conditions enforced by government. These groups otherwise would have constituted the natural antibodies, in the constitutional scheme, to resist policies anathema to their interests and to the broader public interest, but for the temptation offered by the condition.
But what happens when conditions effectively “neuter” the natural reaction of interest groups to policy that would otherwise be anathema? Hamburger does not mention the work of political scientist Mancur Olson, but the phenomenon Hamburger describes confirms one of Olson’s key findings about political organization.[1] Interest groups that form around conditions contrary to the broader public interest in preserving constitutional liberties are smaller and more focused at preserving conditions in their self-interest. Preserving broader constitutional liberties, an interest of the wider public, suffers from the free-rider problem. Thus the broader public has little incentive to organize. The group that forms around preserving a condition offered as either a carrot or stick from government, as opposed to a purported neutral statute or regulation, receives the implicit backing of the government to become its client, surrogate, and agent to preserve the new condition-based regime. Carl Schmitt’s famous observation that “sovereign is he who decides on the exception” may be recast as “sovereign is he who decides on the condition.”
Hamburger’s focus on the most egregious examples of how far rule by condition strays from constitutional self-rule confirms that rule by condition has detrimental implications on the lives of ordinary Americans. The worst examples occur in the delegation to private entities, via condition, of the ability to be the proverbial judge and jury (if not also sentencer) in administrative proceedings. In the education context, any student or faculty member who must endure a Title IX investigation under “guidance” by the Department of Education knows well how truncated otherwise robust constitutional rights, such as free speech and due process, can become in those proceedings. When an adjudicatory process, such as a Title IX investigation, can be coherently compared to an inquisition conducted by academic tribunal, the target of an investigation being told that “the university is a properly delegated agent of the government” is cold comfort. The target is deprived of rights to cross examination and endures judgment by individuals who are not even judges.
When agencies do not delegate their functions to third parties, they are often tempted into what Hamburger terms “regulatory extortion,” or when “agencies threaten to adjust regulation or how it is enforced or adjudicated in order to secure acquiescence to extra conditions—often conditions that impose further regulation.” Hamburger focuses on regulatory extortion in the context of zoning, citing the Nollan and Dolan cases to illustrate that private property is not immune from threats “to deny permission under regulatory licensing schemes unless the regulated parties agreed to give up some of their property.” In Nollan v. California Coastal Commission and Dolan v. City of Tigard Hamburger notes that “local governments threatened to deny permission under regulatory licensing schemes unless the regulated parties agreed to give up some of their property. The threats alone made the conditions a mode of extortion.”
Imagine being deprived of property not by eminent domain litigation, nor losing an administrative process, but rather the mere threat of regulation. At core, the threat of regulatory extortion masks the underlying problem of a consent that results in the deprivation of constitutional rights in exchange for an attenuated benefit. Hamburger calls this state of affairs “thugocracy,” but a better phrase would be simply “living in fear” from arbitrary exercises in power. Ordinary Americans then can rightly be said to live in fear of the arbitrariness of a regulatory threat, but without recourse to due process of law.
What To Do?
Unfortunately, Hamburger’s book does not furnish any solutions other than admonitions that things will worsen unless judges perform their duty to recognize the purchase of submission as violative of the Constitution. But this reviewer surmises two possible paths to limit rule by condition. First, perhaps out of humility, Hamburger misses a chance to highlight the work of his own organization, the relatively new public interest litigation organization New Civil Liberties Alliance (NCLA), as providing the arguments and cases that judges may use to raise awareness of the extent of the problem. His organization has, in its infancy, been at the vanguard of testing, in the most demanding way, the underlying justification for abridgments of liberties, such as the COVID vaccine mandate to attend in-person at public universities such as George Mason University in Virginia. In this way, NCLA is the kind of non-profit organization that provides constitutional antibodies where none exist due to the aforementioned lulling into acquiescence of interest groups that accompanies rule by condition.
Second, the encouragement of legislative and regulatory drafting, through notice and comment and model legislation, that “sunsets” rule by condition could prevent interest groups from easily forming to entrench those interests. Political scientist Jonathan Rauch details how sunset provisions are an important element of fostering active questioning of whether legislation or regulation truly merits renewal.[2] Even without identifying practical steps forward, Hamburger’s book is a noteworthy effort to explain a pernicious type of governance all too prevalent in our legal and political life.
[1] See Mancur Olson, The Logic of Collective Action: Public Goods and the Theory of Groups (1965).
[2] See Jonathan Rauch, Government’s End (1999).
