The Volokh Conspiracy

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Conditional Spending

"The Law of '. . . or Else'"

My review of Philip Hamburger's new book, Purchasing Submission.


Columbia Law School's Philip Hamburger, author of Is Administrative Law Unlawful?, has a new book: Purchasing Submission: Conditions, Power and Freedom. I reviewed the book for the latest issue of National Review.

Here is an excerpt from my review: "The Law of '. . . or Else'"

Buried deep in the House-passed "Build Back Better" bill are a set of climate provisions. One section in particular authorizes the Federal Highway Administration (FHA) to award nearly $1 billion in "community climate in­centive grants" for state projects that reduce transportation-related emissions. As is usual with such grants, there are stri­ngs attached. Authorized funding may not be spent on projects that increase the use of single-occupancy vehicles, and only states that have adopted FHA-approved "carbon reduction strategies" are eligible. Another provision goes further, instructing the FHA to "establish a greenhouse gas performance measure that requires States to set performance targets to reduce greenhouse gas emissions" (emphasis added). Lacking the votes to enact federal climate legislation that would authorize the Environmental Protection Agency to promulgate emission-control regu­lations, Congress is instead seeking to purchase state cooperation through fiscal largesse.

The BBB's conditional spending provisions are no anomaly. They are illustrative rather of a new way of governing: bundles of carrots, backed by sticks. Earlier this year Congress told states that received pandemic-related financial relief that they could not cut taxes. The executive branch does this sort of thing too. The Biden adminis­tration is telling health-care service providers that they cannot receive Medicare and Medicaid reimbursements unless they require employees to be vaccinated. But lest you think this is only one party's vice, recall that the Trump administration sought to persuade local jurisdictions to cooperate with its immigration policies by threatening so-called sanctuary cities with a loss of federal criminal-justice grants.

In Purchasing Submission, Colum­­­bia University law professor Philip Hamburger seeks to expose and analyze this "transactional mode of control" that is "increasingly . . . displacing" statutes and agency regulations and undermining constitutional governance in hidden ways. . . .

"Conditions can function as a mode of regulation that sidesteps the Constitution's regulatory process," Hamburger warns. Enacting substantive legislation and promulgating ad­ministrative regulations entail long and cumbersome processes, and the resulting measures are readily subject to judicial review. Conditional spending and other incentive-based policy measures are an alternative means to pursue federal policy, comparatively free from legal or political constraints. And that is the problem: "In seeking to regulate through the distribution of privileges, government sidesteps the avenues of power established by the Constitution and thereby threatens both constitutional self-governance and constitutional rights." Legislative compromises must be ratified in the open; negotiated conditions may be buried in a consent decree or nonpublic agreement.

The full review is available here.