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

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'”

The House passed the “Build Back better” bill. It contains a number 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. The authorized funding cannot be used for projects that increase single-occupancy vehicle use. Only states with approved “carbon reduction strategies”, as defined by the FHA, are eligible. A further provision directs the FHA “to establish a greenhouse gases performance measure that requires States set performance targets for reducing greenhouse gas emissions.” 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.

BBB’s conditionsal spending provisions do not represent an exception. The BBB’s conditional spending provisions are an example of a new approach to governance: making carrots work with sticks. In early this year Congress instructed states who received financial assistance for pandemics to not reduce their taxes. This is also done by the executive branch. The Biden adminis­tration is telling health-care service providers that they cannot receive Medicare and Medicaid reimbursements unless they require employees to be vaccinated. You should not think that this is just one side’s fault. Remember, the Trump administration attempted to get local jurisdictions to agree with its immigration policies. They threatened so-called sanctuary areas with losing federal criminal justice grants.

Order Submission, Colum­­­bia University law professor Philip Hamburger seeks to expose and analyze this “transactional mode of control” that is “increasingly . . . “Displacement” of statutes and agency regulations, and hiding the weakness in constitutional governance. . . .

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Hamburger cautions that conditions can be used as a way to regulate without following the Constitution’s regulations. Enacting substantive legislation and promulgating ad­ministrative regulations entail long and cumbersome processes, and the resulting measures are readily subject to judicial review. Other incentive-based policies and conditional spending are alternative ways to achieve federal policy. These measures can be used comparatively without any legal or political limitations. That is where the problem lies: Government seeks regulation through the distribution privileges. It does this by bypassing the Constitution’s power channels and threatens constitutional sovereignty and rights. The open ratification of legislative compromises is required. Negotiated conditions can be hidden in consent decrees or other agreements.

You can read the full review here.

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