Unconstitutional Conditions Research Articles

Is Tax Law Different? Unconstitutional Conditions, Religious Organizations, and Taxation

Is Tax Law Different? Unconstitutional Conditions, Religious Organizations, and Taxation

The Unconstitutional Conditions Vacuum in Criminal Procedure

The Unconstitutional Conditions Vacuum in Criminal Procedure

국가의 보조금 지원과 표현의 자유

The unconstitutional conditions doctrine is that government may not grant a benefit on the condition that the beneficiary waive a constitutional right, especially freedom of speech. The doctrine has mainly been applied to the case where government may condition subsidies on silencing certain expression. The U.S. Supreme Court established ‘scope of program test’ in AOSI case(2013). Under the test, whereas (1) conditions that define the limits of the governmental subsidies program do not infringe freedom of speech, (2) conditions that seek to leverage subsidies to regulate speech outside the contours of the program do infringe freedom of speech. The test firstly requires to decide that the purpose of governmental subsidies is (1) to convey government’s own message or (2) to encourage a diversity of views from private speakers. In case of (1), government can impose conditions that force to relinquish certain expression contrary to the viewpoint of government, but in case of (2), government cannot impose those conditions. Even in case of (1), it is needed to decide whether the conditions regulate only expression inside the subsidies program or up to expression outside the subsidies program, secondly. This issue depends on whether the recipient of subsidies can still make the very expression regulated by the conditions through alternative channels or not. The Constitutional Court and Supreme Court of Korea have dealt with similar cases, such as ‘blacklisting cultural artists’ cases. While it seems that both courts referred to unconstitutional conditions doctrine, some opinions misunderstood the doctrine and an explicit standard determining constitutional validity on these cases has not been established. It might be helpful to consider introducing a doctrine similar with unconstitutional conditions doctrine.

Are State Constitutional Rights for Sale? Protecting State Constitutional Rights from Unconstitutional Conditions

Are State Constitutional Rights for Sale? Protecting State Constitutional Rights from Unconstitutional Conditions

The State Power to Boycott a Boycott: The Thorny Constitutionality of State Anti-BDS Laws

The Boycott, Divestment, Sanctions (“BDS”) Movement, a global effort to oppose the State of Israel in its actions toward Palestine, is one of the most divisive topics in global politics. Since it began in 2005, BDS has also been legally divisive in the United States. U.S. states began passing anti-BDS laws in 2015, and twenty-seven states have since passed legislation or executive orders restricting the state governments’ commercial dealings with entities that participate in BDS activities against Israel. Though the specific provisions of anti-BDS laws vary widely, they have taken two primary forms: (1) contract-focused laws that condition the receipt of government contracts on an entity certifying that it is not boycotting and will not boycott Israel; and (2) investment-focused laws that mandate public investment funds to divest from entities involved in boycotts of Israel. This Note aims to remedy the relative dearth of thorough analysis on this issue through a comprehensive study of the constitutional stakes of state anti-BDS laws. BDS activities are protected by the First Amendment under a broad interpretation of NAACP v. Claiborne Hardware. However, there are at least five distinct arguments that the anti-BDS laws merely pose “incidental infringements” on these rights, thereby rendering them constitutionally justified in light of state interests. Two of the arguments can be dismissed through appeal to Claiborne itself or related lines of case law. The three other arguments have not been adequately addressed by federal courts, such that their strength is less certain. Ultimately, many of the anti-BDS laws likely run afoul of the First Amendment by imposing unconstitutional conditions on government contractors and/or beneficiaries of public funding, though courts should take account of the full range of legal issues in disposing of suits challenging anti-BDS laws.

The Future of Land Use Regulation: A Tribute to Callies One Small Point of Departure: Exactions and Impact Fees

There is a continuing debate after the Koontz v. St. Johns River Water Management Dist., 133 S.Ct. 2586 (2013) decision as to whether legislatively-enacted impact fees should be subject to Nollan/Dolan scrutiny or whether only adjudicative actions in the form of physical or monetary exactions will require this heightened scrutiny. Nollan/Dolan heightened scrutiny developed when the Court in Nollan v. California Coastal Comm'n, 483 U.S. 825 (1987) held that the California Coastal Commission’s requirement that the Nollans dedicate a easement across their beachfront property in exchange for a permit to rebuild a new property did not have an “essential nexus” to the effects of the proposed land use. The Court in Dolan v. City of Tigard, 512 U.S. 374 (1994) refined this test to require that in addition to the exaction having an essential nexus, “that an adjudicative exaction requiring dedication of private property must also be “rough[ly] proportiona[l]” ... both in nature and extent to the impact of the proposed development.” In Koontz, the Court extended the use of Nollan/Dolan scrutiny to apply to monetary as well as physical exactions. Practitioners and scholars anticipate that this issue will come before the U.S. Supreme Court once litigation presents the appropriate case for the Court to give guidance to state and federal courts. This article, as well as the author’s prior article, When Local Government Misbehaves, 2016 Utah L. Rev. 105, argues that courts should apply deferential scrutiny to legislative impact fees. Instead of subjecting such legislative fees to the Nollan/Dolan test, courts should apply applicable state standards, which range from a deferential rational basis test in California to a searching inquiry in North Carolina. As explained by the Court in Koontz, exactions pose a special concern because “land-use permit applicants are especially vulnerable to the type of coercion that the unconstitutional conditions doctrine prohibits because the government often has broad discretion to deny a permit that is worth far more than property it would like to take. . . . [and] [e]xtortionate demands of this sort frustrate the Fifth Amendment right to just compensation.” Therefore, courts should apply heightened scrutiny to exactions in order to “provide important protection against the misuse of the power of land-use regulation,” however state and local legislative actions should continue to receive judicial deference. Takings challenges to legislative action should remain subject to the per se takings tests under Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419 (1982) (finding a taking “where government requires an owner to suffer a permanent physical invasion of her property”) and Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) (finding a taking where regulations “completely deprive an owner of ‘all economically beneficial us[e]’ of her property”), or to the Penn Central Transportation Co. v. City of New York, 438 U.S. 104 (1978) three-factor test (based on the “magnitude of a regulation's economic impact and the degree to which it interferes with legitimate property interests”), if it constitutes a partial taking. Until the Court speaks directly to the distinction between adjudicative exactions for individual development permitting and legislative impact fees designed to offset general development externalities, local governments, courts, litigators, and scholars will continue to struggle with whether the Nollan/Dolan test applies to municipal impact fees.

Boycotting the Boycotters: Turnabout Is Fair Play Under the Commerce Clause and the Unconstitutional Conditions Doctrine.

This paper is a review of the constitutionality of state laws that prohibit the state from investing in, or contracting with, parties engaged in certain boycott activity. In particular, as the boycotts subject to state regulation are often connected to the so-called “BDS movement” that has been active in promoting commercial and academic boycotts of Israel, the paper focuses on the background of BDS and how the nature of BDS impacts the analysis of Commerce Clause and Unconstitutional Conditions Doctrine applicability.

Supreme Court Amicus Brief of Law Professors in Support of Petitioner, Lee v. Tam, No. 15-1293 (Filed Nov. 16, 2016)

The Federal Circuit’s ruling that the § 2(a) disparagement provision is unconstitutional, if upheld, could allow for numerous provisions of the Trademark Act to be overturned, dismantling the modern trademark system. The trademark system is premised on evaluating speech and making content-based determinations. Granting a trademark registration requires content-based determinations, though not viewpoint-based, as words are evaluated independent of applicants’ individual viewpoints. In no way does the refusal to register a trademark prevent its use or diminish public debate. Rather than facilitating public debate, a trademark registration is a government-issued document that makes it easier for its owner to suppress the speech of others. A trademark registration is not an entry pass to the forum; it is a right to exclude. Thus in trademark law whether the government refuses registration to a mark owner or it arms that owner with a registration to enforce against other speakers, the government inevitably interferes in someone’s speech. The Federal Circuit’s mistake was to treat a regulatory, benefit-granting program as if it were a ban on speech. Although prohibiting the use of disparaging marks would suppress speech, the government does not suppress speech by refusing to include these marks on the federal register. If a firm wants to use the N-word as its mark, it is free to do so under trademark law. Instead of doctrines focused on banned speech, the unconstitutional conditions doctrine is a more appropriate test for the trademark registration system, and because registration does not attempt to affect a registrant’s speech outside the four corners of the registration it poses no First Amendment problem. The different justifications, functioning, and risks of registration compared to laws punishing speech make application of doctrines about banning speech to the Lanham Act both incoherent and unwise. To rule otherwise would jeopardize much of the structure of trademark law.

An Analysis of CRIPA Findings Letters Issued to Jails for Constitutional Violations by the Department of Justice

This study analyzes Findings Letters in jail Civil Rights of Institutionalized Persons Act (CRIPA) cases for the years 1993 through 2013 to improve our understanding of the prevalence, content and correlates of constitutional violations investigated by the Department of Justice. CRIPA authorizes the U.S. Department of Justice to investigate and file suit against local jail facilities for the unconstitutional conditions of individuals in their care. Investigating the allegations and providing local officials a Findings Letter are the first steps in a CRIPA action and determine what remedial action must be taken to avoid a federal lawsuit. The analysis revealed a high incidence of certain constitutional violations, longitudinal trends, and facility characteristics associated with CRIPA action.

EMTALA Turns 30: Unconstitutional from Birth

The Emergency Medical Treatment and Active Labor Act (“EMTALA”) requires every Medicare-contracting hospital with an emergency department (“ED”) to screen and stabilize anyone with an emergency condition, regardless of ability to pay. Enacted in 1986, EMTALA vastly expanded Medicare’s initial focus on elderly and disabled beneficiaries and imposed enormous financial liabilities. Neither the Supreme Court nor any Circuits have addressed EMTALA’s constitutionality.This Article proposes that EMTALA violates the Fifth Amendment’s Takings Clause. First, it imposes a host of individual takings as the government forces one private party — the hospital — to transfer personal property to another private party — the patient. Here, violations depend on whether the hospital is justly compensated.Second, EMTALA as a whole is an “unconstitutional condition” imposed on hospitals’ participation in Medicare. Although the government can properly attach “strings” to ensure public funds are spent as Congress intended, the government cannot with impunity require persons to waive fundamental constitutional rights as a condition for receiving a government benefit. This Article shows that, as EMTALA forces hospitals to abdicate their Fifth Amendment right against uncompensated takings, it exceeds the Supreme Court’s boundaries on federal spending.In the final analysis, EMTALA’s mandate that hospitals care for emergency patients should remain, but hospitals must be justly compensated.

What We Have Here Is a Failure to Compensate: The Case for a Federal Damages Remedy in Koontz 'Failed Exactions'

In Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994), the Supreme Court held that an agency could not, consistent with the Takings Clause, condition a permit on a land exaction unless the exaction bears an “essential nexus” and “rough proportionality” to the harms the government seeks to mitigate. Then, in Koontz v. St. Johns Water Management District, 133 S. Ct. 2586 (2013), the Court extended Nollan and Dolan to exactions that were never completed because the property owner refused to acquiesce to the demand. Nevertheless, the Court held that such property owners suffer a “constitutionally cognizable injury” under the unconstitutional conditions doctrine because the government has significantly burdened their right not to have property taken without just compensation. Because the case arose under a Florida statute, the Court did not decide what the proper federal remedy would be in these “failed exaction” cases.This Article argues that failed exaction plaintiffs should be entitled to actual damages under the federal civil rights statute, 42 U.S.C. § 1983. Because failed exactions do not involve a completed taking, the Just Compensation Clause is not the proper remedy. But a recognized constitutional injury cannot go uncompensated. Limiting the remedy to invalidation of the offending condition suffers from two faults. First, it fails to provide property owners with adequate compensation. Second, it does not serve as a deterrent to agencies. An invalidation remedy standing alone gives permitting agencies a “do-over” and encourages them to use to permitting process to prevent development through the use of unconstitutional conditions. On the contrary, a damages remedy is supported by Section 1983 and serves the twin aims of deterrence and compensation. Courts should hold that property owners bringing a failed exaction claim under Koontz are entitled to their actual economic damages.Along with that federal damages remedy, the Article argues that these plaintiffs should be able to bring their claims directly in federal court. Because failed exaction plaintiffs have not suffered a taking, they cannot seek Just Compensation. Therefore, the ripeness rule for federal takings claims established in Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S. 185 (1985), which generally requires property owners to seek just compensation in state court to “ripen” a takings claim, does not apply to failed exactions. Property owners suing under a Koontz theory should be able to assert their federal constitutional rights directly in federal court.

No Last Resort: Pitting the Right to Die Against the Right to Medical Self-Determination

Many participants in debates about the morality of assisted dying maintain that individuals may only turn to assisted dying as a ‘last resort’, i.e., that a patient ought to be eligible for assisted dying only after she has exhausted certain treatment or care options. Here I argue that this last resort condition is unjustified, that it is in fact wrong to require patients to exhaust a prescribed slate of treatment or care options before being eligible for assisted dying. The last resort condition effectively pits one right of patients, their right to refuse medical treatment or interventions, against another patient right acknowledged by advocates of assisted dying, the right to die. Drawing on an analogy with the legal notion of an unconstitutional condition, I argue that the last resort condition unjustly demands that an arguably more fundamental right—the right to refuse medical treatment or intervention—be foregone in order to acquire a less fundamental right—the right to die. I then address three rationales for the last resort condition and find that they subject individuals to arbitrarily stringent standards for exercising the right to die, standards to which those who seek to end their lives by voluntarily ending life-sustaining treatments are not subject. Subjecting those who seek assisted dying to the last resort condition therefore wrongfully infringes on their right to refuse medical treatment or interventions.

Contrived Threats v. Uncontrived Warnings: A General Solution to the Puzzles of Contractual Duress, Unconstitutional Conditions, and Blackmail

Contractual duress, unconstitutional conditions, and blackmail have long been puzzling. The puzzle is why these doctrines sometimes condemn threatening lawful action to induce agreements but sometimes do not. This Article provides a general solution to this puzzle. Such threats are (and should be) deemed unlawfully coercive only when they are contrived, meaning that the threatened action would not have occurred if no threat could have been made. I show that such contrived threats can be credible because making the threat strongly influences whether the threatened action occurs. When such threats are uncontrived warnings, meaning that the threatened action would have occurred even if no threat could have been made, they are not coercive and can only benefit the agreeing parties. However, sometimes (as with blackmail) agreements produced by uncontrived warnings are also unlawful on the ground that they harm third parties. The contrived-threat test explains why the Medicaid-defunding threat in the Affordable Care Act was unconstitutional. It also explains why the recent King v Burwell conclusion—that the Affordable Care Act does not withhold tax credits from states that do not create insurance exchanges—would have been constitutionally required even if it had not been required by the statutory text.

Conditional Spending and the (General) Conditional Offer Puzzle

There are two basic ways to think about the constitutionality of conditional funding offers from the national government to the states: as a localized problem subject to a localized solution, or as instantiating a broader problem subject to a more general analysis. The first perspective views conditional spending grants as, essentially, an issue of federalism. The second views it under the rubric of what is sometimes called “the unconstitutional conditions problem” or (preferably) “the conditional offer puzzle.” In last year’s health care decision, the Court adopted the first approach — the “particularist perspective.” That is, all Justices analyzed the constitutionality of the Medicaid expansion by reference to concepts, tests, and principles that, as far as the several opinions revealed, the authors thought particular to conditional funding grants offered from the federal government to the states. No Justices drew upon, or sought to further develop, principles or analytical frameworks that purported to be general in the sense of applying to other sorts of conditional offers of benefits — for example, conditional proposals made to individuals rather than to states, or made from state governments rather than from the national government, or made of an offer to provide some benefit other than cash or cash equivalent. This essay, prepared for an edited volume of essays concerning the health care decision, argues that the unsatisfactoriness of the Court’s analysis of the Medicaid expansion can be traced to its adoption of the particularist approach to the conditional spending problem, and it explores the “generalist” alternative of analyzing the conditional spending problem as a subtype of the more general conditional offer puzzle. The generalist alternative I offer rests upon a distinction between coercion and compulsion, along with an account of what it means to “penalize” the exercise of a right. I conclude both that those who support the Affordable Care Act should treat the states’ challenge with greater seriousness than, by and large, they have given it, and that those who already harbored doubts about the constitutionality of the Medicaid expansion have reason to be more sympathetic to a general solution to the conditional offer puzzle than was the Supreme Court.

Viewpoint Discrimination in the Military's Filmmaker Assistance Program and the First Amendment

The U.S. military provides assistance to filmmakers in the form of use of military sites, equipment and personnel, which can provide significant cost savings to filmmakers. The military, however, routinely denies this assistance to filmmakers whose productions portray the military in a way it considers objectionable, actions that constitute viewpoint discrimination by the government. While this may seem to be an unconstitutional violation of First Amendment rights, application of forum law and the unconstitutional conditions doctrine lead to the conclusion that the military's viewpoint discrimination is permissible and does not violate the First Amendment.

Economic Substantive Due Process: Considered Dead is Being Revived by a Series of Supreme Court Land Use Cases

This article describes how the Supreme Court, in a series of land-use cases, is resurrecting economic substantive due process, which has been presumed dead since its rejection in the 1930s for blocking legislation aimed at fighting the Great Depression. The most dramatic step in this reversion to Lochner is Koontz v. St. Johns River Water Management District, a case handed down on June 25, 2013. Koontz extended the reach of Nollan v. California Coastal Commission and Dolan v. City of Tigard, cases that expanded takings law to include the lack of sufficient connection between a property interest required for mitigation of a permitted project and the project’s adverse impacts. Those cases changed the judicial standard for reviewing permit conditions requiring the dedication of land from rational basis to the heightened takings standard, which includes the government bearing the burden of persuasion. In Koontz, the Court ruled that this takings concept was applicable to the requirement that the permit applicant expend money to compensate for the impacts of the permitted activity despite the fact that the Fifth Amendment and previous case law confine takings analysis to property interests. The practical effect of Koontz is that courts must implement substantive due process review to a vast amount of permit decisions of local, state, and federal government. This article examines the doctrines of takings, substantive due process, and unconstitutional condition to arrive at the conclusion that the takings test created by Nollan, Dolan, and Koontz revives economic substantive due process. The article recognizes the legitimacy of the desire of property rights advocates for more than rubber stamp, rational basis review of progressively more stringent land-use regulation. To that end, the article concludes by proposing alternatives that accomplish this without resurrecting economic substantive due process that is a bad doctrine now for the same reasons it was rejected in the 1930s.

Nollan and Dolan and Koontz Oh My! The Exactions Trilogy Requires Developers to Cover the Full Social Costs of Their Projects, But No More

This article argues that, contrary to appalled assertions of some observers, the U.S. Supreme Court’s decision in Koontz v. St. Johns River Water Management District is a straightforward application of Nollan v. California Coastal Commission and Dolan v. City of Tigard. Nollan and Dolan established that when government requires a permit applicant to give up property in exchange for a permit, the demand must be closely related and roughly proportional to the development’s social cost. Anything that exceeds those bounds violates the unconstitutional conditions doctrine by burdening the right to just compensation for a taking. Koontz, like Nollan and Dolan, recognizes that government may legitimately require landowners to carry their own weight, mitigating their development plans so that they do not impose costs on their community. But government cannot use the permitting process to coerce landowners into giving up more. That simple rule will not end land-use planning or permit negotiations.

FUNDING CONDITIONS AND FREE SPEECH FOR HIV/AIDS NGOS: HE WHO PAYS THE PIPER CANNOT ALWAYS CALL THE TUNE

The United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act pledges billions of dollars to fund NGOs combating the HIV/AIDS epidemic but requires recipients to adopt a policy explicitly opposing prostitution and sex trafficking. A possible recipient NGO confronts a tough decision: adopt an affirmative statement against prostitution and sex trafficking to accept the funds, alienating a vital partner in its efforts to eradicate HIV/AIDS; or deny the funds to speak its own message, though without the benefit of government assistance. Courts are split on whether the Leadership Act’s policy requirement places an unconstitutional condition on federal funds that requires grant recipients to surrender their First Amendment right to freedom of speech by compelling speech and impermissibly discriminating on the basis of viewpoint. This Note addresses the circuit split that has resulted from differing conceptions of what constitutes compelled speech, what conditions act as a penalty, and what conditions suppress alternate viewpoints. To resolve this split, this Note adopts the framework of analysis used by dissenting Judge Chester Straub in the Second Circuit and applies his framework to assert that the Leadership Act’s policy requirement unconstitutionally denies NGOs the ability to express alternate messages with nonfederal funds.

Unconstitutional Conditions Questions Everywhere: The Implications of Exit and Sorting for Constitutional Law and Theory

Unconstitutional conditions questions are supposed to be hard and rare. This article contends that, however hard, nearly every constitutional question can be converted into an unconstitutional conditions question. One reason is that the frames of reference in constitutional disputes are often arbitrary, and expanding the frame can turn a constitutional burden into a package deal with discretionary benefits supplied by the very same government. A related reason is more fundamental and inspirational: constitutional claimants are almost always allowed to exit the relevant institution and enter another. This possibility of sorting across multiple institutions generates unconstitutional conditions questions by making nearly every government imposition at least nominally optional. Moreover, exit and sorting dynamics operate in contexts far beyond people physically migrating to new locations. The full implications of exit and sorting have been neglected by constitutional theorists, who tend to assume a static population within one political community or to focus on crude arguments about “voting with your feet.” This article is an initial effort to check these tendencies, and to move exit and sorting toward the center of constitutional law and theory.

Conditional Spending after the Health Care Decision

The Supreme Court’s decision in National Federation of Independent Business v. Sebelius regarding the constitutionality of the Patient Protection and Affordable Care Act produced three main holdings concerning two critical provisions of the Act. The first two holdings concerned the “individual mandate” that requires most Americans to maintain “minimum essential” health insurance. The third holding concerned “the Medicaid expansion,” which expanded the class of persons to whom the states must provide Medicaid coverage as a condition for receiving federal funds under the Medicaid program. By a vote of 7-2, the Court struck down this provision as an impermissible condition on the provision of federal funds to the states. Many commentators have opined that, of these three holdings, the third — concerning what is often called Congress’s “conditional spending power” — is apt to have the most far-reaching consequences beyond health care. Unfortunately, this third holding is not only the most potentially significant, but also the one supported by the least clear rationale. At first blush, the majority appeared to hold straightforwardly that the conditional offer that the Medicaid expansion embodied was unconstitutional because coercive, and coercive because it gave states “no choice” but to accept. For several reasons, however, that initial reading appears cloudier on a second or third read. Given the vast potential significance of the Court’s holding on conditional spending and the manifest lack of clarity regarding its rationale, this essay offers a comprehensive and critical assessment. Very generally, the essay does five things: (1) disambiguates the concepts of coercion and compulsion; (2) shows that, under the label coercion, the Supreme Court majority in National Federation of Independent Business actually deployed the concept of compulsion; (3) argues, against the majority, that compulsion is not a normatively meaningful concept and that coercion is; (4) explains how a threat to withhold benefits that the government is not obligated to provide can be unconstitutional by amounting to a penalty; and (5) argues (tentatively) that the Medicaid expansion probably did threaten a penalty and thus probably did constitute the wrong of coercion. Points (3) and (4) in particular bear profound implications for understanding “unconstitutional conditions” cases even outside the context of federal conditional spending.