Unconstitutional Conditions Research Articles

Conditional Federal Spending after "Lopez"

This Article argues that the U.S. Supreme Court should reinterpret the Spending Clause to work in tandem, rather than at odds, with its post-Lopez reading of the Commerce Clause. Any substitute for the standard of review set out in South Dakota v. Dole, however, must reconcile two potentially conflicting goals. It must strive to safeguard both state autonomy and the related principle of a federal government of enumerated powers by restricting Congress from using conditional offers of federal funds in order to regulate the states in ways that it could not directly mandate. At the same time it must preserve for Congress a power to spend that is greater and broader than its power to regulate the states directly. Thus, this Article proposes that the Court presume invalid that subset of offers of federal funds to the states which, if accepted, would regulate the states in ways that Congress could not directly mandate under its other Article I powers. This presumption could be rebutted by a judicial finding that the offer of funds constitutes "reimbursement spending" rather than "regulatory spending" legislation. The Article begins by discussing both the problem posed by conditional offers of federal funds to the states and the insights into that problem afforded by traditional formulations of the unconstitutional conditions doctrine. A brief examination of the development of the Supreme Court's jurisprudence in this area and a review of the academic commentary follow. Part II offers three normative arguments which, taken together, demonstrate that the courts should presume invalid those conditional offers of federal funds to the states that seek to regulate them in ways Congress could not achieve directly. Thus, these arguments also explain both why the Dole test needs rethinking and why the proposed test is preferable, if still imperfect. Part III begins with a critique of the major proposals for reforming Spending Clause doctrine that have been offered to date. It then presents the proposed test and explains the operation of, and reasons for, the critical distinction the test makes between "reimbursement spending" and "regulatory spending" legislation. This Part concludes by considering four congressional enactments (two actual and two hypothetical), under both the prevailing Dole test and the proposed test.

The Constitutional Conception of the Corporation

This article traces the constitutional implications of three theories of the corporation: the theory, which views the corporation as a distinct bundle of rights and obligations; the theory, which strips away corporate personality and exposes the network of underlying contracts; and the unconstitutional conditions theory, which is a variant of the corporate person theory to the extent that it accepts personification of the corporation but would limit government's power to coerce firms to relinquish their rights. The article shows how substituting an artificial legal entity for the underlying individuals implies pervasive government power to regulate corporations, and therefore provides a basis for denigrating the constitutional protection of corporate activities. The contract theory, on the other hand, undercuts the rationale for applying a lower degree of constitutional protection to corporate than to individual rights. The article analyzes how these theories affect applica...

Artists and Unconstitutional Conditions: The Big Bad Wolf Won't Subsidize Little Red Riding Hood's Indecent Art

This article discusses recent developments in an area of the law analyzed in a 1990 Law and Contemporary Problems symposium, Freedom and Tenure in the Academy: The Fiftieth Anniversary of the 1940 Statement of Principles.' Professor Robert O'Neil's article in that symposium examined the relationship between academic freedom and artistic expression, considering First Amendment protection for artistic expression as well as the particular problem of government funding of the arts.2 The controversy raised by the subject of government funding has elevated the arts to an unaccustomed level of political visibility3 and focused attention on the ongoing debate over unconstitutional conditions. As Professor O'Neil recognized, the restrictions placed on funded artists in the form of decency requirements have a potential chilling effect on bold and controversial works affecting both the artists themselves and the display industry of museums and galleries.4 Professor O'Neil argued that the decency requirement should be scrutinized as a potentially unconstitutional condition.5 He concluded that artistic freedom is closely intertwined with academic freedom,

Unconstitutional Conditions: The Crossroads of Substantive Rights and Equal Protection

Unconstitutional Conditions: The Crossroads of Substantive Rights and Equal Protection

"Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine

"Exit" as a Constraint on Land Use Exactions: Rethinking the Unconstitutional Conditions Doctrine

The President's Power of the Purse

During the Reagan administration, Congress discovered that it could intimidate the executive branch by uttering again and again the same seven words, provided, that no funds shall be spent.... This limitation, attached to numerous appropriations bills, enabled Congress, under the guise of protecting the public fisc, to frustrate the President's ability to perform his duties and exercise his prerogatives under the Constitution. The predicate for this encroachment by Congress on the Presidency lies in the appropriations clause: No Money shall be drawn from the Treasury but in Consequence of Appropriations made by Law.... Despite the importance of enabling public officials to spend money or incur debts in the name of the federal government, this provision in the Constitution is one of the least scrutinized. In an article entitled Congress' Power of the Purse, Professor Kate Stith of Yale Law School argues that the Constitution prohibits the expenditure of any public money without legislative authorization. This proposition, which she calls the Principle of Appropriations Control, is an elaboration on a theory of the appropriations clause espoused during the Iran-Contra hearings and in myriad appropriations laws. This theory encompasses far more than fiscal responsibility; it envisions the appropriations power as an omnipresent legislative veto on presidential action, thereby fostering what Professor Stith calls [t]he genius of regulating executive branch activities by limitations on appropriations.... Professor Stith's theory of the appropriations power is flawed for a number of reasons. Part I of this Article examines the text and history of the appropriations clause and shows that the text of this clause is more ambiguous than commonly believed and that historical support for reading the clause to be a legislative veto on presidential action is dubious at best. Part II argues, in direct contrast to Professor Stith's theory, that the President, without violating the Constitution or statutory laws, may obligate the Treasury, provided that Congress has failed to appropriate the minimum amount necessary for him to perform the duties and exercise the prerogatives given him by Article II of the Constitution. Part III then examines the limiting principles that constrain the President's implied power to spend public funds under this theory. And Part IV demonstrates how Congress has tried to use the appropriations power to impose unconstitutional conditions on the President's performance of his constitutional duties and exercise of his prerogatives. Part V argues that Professor Stith reads the appropriations clause so broadly that it would replace the unitary Executive with a plural one, thereby swallowing the principle of the separation of powers. Part VI examines the exception with which Professor Stith proposes to cure the absence of a limiting principle in her Principle of Appropriations Control. She argues that necessity might justify the President spending public funds in the absence of appropriations. However, I argue that a justification of necessity might make lawless spending by the President more likely to occur. In conclusion, I argue that the fundamental principle animating the Constitution - the separation of powers - dictates a unitary Executive, and that a unitary Executive cannot tolerate congressional encroachments that, under the pretext of guarding the public purse, deny the President the funds necessary to perform the duties and exercise the prerogatives conferred on him by Article II.

Unconstitutional Conditions

Unconstitutional Conditions

Committee to Defend Reproductive Rights v. Myers: Abortion Funding Restrictions as an Unconstitutional Condition

Committee to Defend Reproductive Rights v. Myers: Abortion Funding Restrictions as an Unconstitutional Condition

Committee to Defend Reproductive Rights v. Myers: abortion funding restrictions as an unconstitutional condition.

Committee to Defend Reproductive Rights v. Myers: abortion funding restrictions as an unconstitutional condition.

Systemic Coercion: Unconstitutional Conditions in the Criminal Law

Systemic Coercion: Unconstitutional Conditions in the Criminal Law

Some Recent Public Personnel Decisions and the "Unconstitutional Conditions" Doctrine

Some Recent Public Personnel Decisions and the "Unconstitutional Conditions" Doctrine

The Private Enforcement of Law

The Private Enforcement of Law

Another Look at Unconstitutional Conditions

Another Look at Unconstitutional Conditions

Unconstitutional Conditions: Welfare Benefits with Strings Attached

Unconstitutional Conditions: Welfare Benefits with Strings Attached

Unconstitutional Conditions: Welfare Benefits with Strings Attached

Unconstitutional Conditions: Welfare Benefits with Strings Attached

Unconstitutional Conditions

Unconstitutional Conditions

Unconstitutional Conditions and Constitutional Rights

Unconstitutional Conditions and Constitutional Rights

Constitutional Law. State Regulation of Hours and Wages. Unconstitutional Conditions

Constitutional Law. State Regulation of Hours and Wages. Unconstitutional Conditions

Unconstitutional Conditions

Unconstitutional Conditions

Modern Developments of the Doctrine of Unconstitutional Conditions

Modern Developments of the Doctrine of Unconstitutional Conditions