The Volokh Conspiracy

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Guest Post from Philip Hamburger: Before Judging Vaccines, the Court Should Judge Itself


I am happy to share this guest post from Professor Philip Hamburger of Columbia Law School. Phillip is also the President of the New Civil Liberties Alliance, which is involved with the ongoing mandate litigation.

The Biden administration has imposed COVID-19 vaccinations on all healthcare workers at Medicare and Medicaid participating facilities as a condition of federal funding. When this condition came before the Supreme Court last Friday in Biden v. Missouri, the justices aptly inquired whether it departed from the Constitution. But they should have also considered their own departures from the Constitution. They then might have understood the administration's conduct with greater clarity.

The Constitution leaves the federal government much power to spend through its enumerated powers, but does not give Congress a general spending power. Such a move was considered by the Constitutional Convention but clearly abandoned. Nonetheless, the Court—uninhibited by history, intent, or text—says that Congress has a general spending power, thereby giving Congress a power to spend that exceeds even its inflated power to regulate. Congress therefore increasingly turns to spending conditions to regulate in areas, such as health and education, that lie beyond its traditional power to regulate. Of course, this is not to say that the Court will soon back away from a general spending power. But if the Court were to recognize that it (not the Constitution) legitimized federal spending beyond the specialized areas of federal power, it might become more cautious. It might hesitate to let enlarged federal spending become a mechanism for expanded control, whether of states or private parties.

The Court also should reconsider its role in permitting federal spending for the states. The Constitution authorizes taxing and associated spending only for limited purposes, most broadly to provide for the "general Welfare of the United States." Although the definition of the general welfare is open to dispute, one meaning traditionally was beyond dispute: that it barred federal taxing and spending to or for the states or their localities. For example, it was proposed that Congress could give disaster funding to dispossessed individuals in the City of Savannah, and this was vigorously debated. But it was widely recognized—even by Alexander Hamilton—that Congress could not fund the states or pay their obligations.

The Supreme Court has broken down this limit on federal funding and thereby enabled the flow of federal money to the states. Federal funding averages about a third of each state's budget—so the federal government can make peremptory demands for matching funds and other conditions from the states. This has drawn many states toward bankruptcy and has often reduced them to instruments for federal spending and regulation—a prime example being the condition in Friday's case requiring vaccinations.

The Supreme Court assumes that the danger of federal demands on the states has been cured with the Court's anti-commandeering doctrine—a doctrine that bars the federal government from directing or "commandeering" the states. This doctrine recognizes that laws can violate the Constitution structurally as well as verbally. In McCulloch v. Maryland, Chief Justice Marshall held that a state cannot tax a federal instrumentality, and from a different direction, for example, in Printz v. United States, the court has held that the federal government cannot commandeer state policymaking.

But the Court says that there is no commandeering without federal coercion, and most federal conditions on funding for the states get categorized as consensual. The Court thereby licenses the federal government to evade the commandeering doctrine simply by using funding conditions. Of course, federal funding creates profound pressures, which more than supply any requirement of federal action. But the larger point is that commandeering and other structural violations of the Constitution should not depend on any coercion, force, or other pressure. So the coercion requirement is utterly misbegotten. The Court, however, has persuaded itself of the centrality of coercion. It thereby leaves the states utterly vulnerable to federal conditions directing their policies—as in Biden v. Missouri.

These judicial errors—creating a general spending power, permitting federal funding for the states, and allowing federal conditions to evade the anti-commandeering doctrine—are bad enough. But there is an even broader judicial failure.

The Constitution provides only one avenue for regulating Americans—namely for Congress, a public body, to make a public law imposing a binding regulation on the public. All the same, the Supreme Court allows the federal government to regulate through conditions on its largess. When the federal government offers money to states on the condition that they submit to vaccination conditions, these conditions are regulatory. But rather than be imposed by force of law in the public act of a public body, they apply to states and state institutions only through the transactions in which they are accepted. This pecuniary mode of control allows the federal government to buy off political and legal opposition. It also transforms constitutional governance through public acts into transactional control done in private.

One might protest that consent is a cure—that it is enough for the federal government to get the acquiescence of the affected states or private parties. But is it really to be believed that the federal government can use our money to secure our dependence, and then subvert our institutions, all on the theory that it has our submission?

Private and even state consent cannot relieve the federal government of its constitutional limits. The ill-fated Articles of Confederation were framed as a compact among the states, and pro-slavery Southerners envisioned the U.S. Constitution as such as compact. But the Constitution was ordained and established by We the People precisely so that it would bind us and our governments as law—the highest of our laws. No amount of private or state consent can alter this law. The Court therefore should be ashamed of any hint that state consent (let alone that secured by unconstitutional grants) can liberate the federal government from its constitutional limits.

So the question in Biden v. Missouri goes far beyond vaccination. At stake is a new mode of governance, the purchase of submission to an unlawful pecuniary mode of regulation. Rather than merely evaluate the Biden administration's misdeeds—serious as they are—the Court should reflect upon its own wayward doctrines. Its departures from the Constitution have authorized, even normalized, the government's departures. For this, the Court is to blame.

Philip Hamburger is a professor at Columbia Law School and president of the New Civil Liberties Alliance. He is the author of Purchasing Submission: Conditions, Power, and Freedom (Harvard Univ. Press 2021).