It is a pleasure to share the guest post by Professor Phillip Hamburger from Columbia Law School. Phillip also serves as President of The New Civil Liberties Alliance. This group is actively involved in the 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. However, they could have looked at their own deviations from the Constitution. Then they might have had a better understanding of the government’s actions.
Although the Constitution grants federal government a lot of power through its enumerated power, it does not grant Congress any general spending power. The Constitutional Convention considered such a move, but it was clearly rejected. 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 is increasingly turning to spending conditions in order to regulate areas such as education and health that are beyond its usual regulatory authority. However, it is unlikely that the Court would soon abandon its broad spending power. However, if the Court recognized that the Constitution (and not it) authorized federal spending in areas other than those of federal power it could be less cautious. Perhaps it would be reluctant to permit a greater federal spending increase to serve as a means of expanding control over states or private entities.
Also, the Court should consider reevaluating its authorization of federal spending by states. Constitution prohibits the taxing of associated expenditures for limited purposes. This includes providing for the “general welfare of the United States.” The definition of “the” is not clear. general welfare Although it can be disputed, one meaning is unmistakable: federal spending and taxing by the federal government to states and localities are prohibited. It was suggested that Congress might provide disaster funds to individuals who were homeless in Savannah. This was heatedly debated. But it was widely recognized—even by Alexander Hamilton—that Congress could not fund the states or pay their obligations.
Federal funding is now flowing to states because the Supreme Court lifted the federal funding cap. 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 acknowledges the fact that laws may be violated both structurally and verbally. This doctrine recognizes that laws can be violated both structurally and verbally. McCulloch v. MarylandChief Justice Marshall ruled that the state could not tax federal instruments, even if it is coming from an alternative direction. Printz v. United StatesAccording to the court, federal policymaking cannot be controlled by the federal government.
However, the Court says there can be no commanding without federal coercion. Therefore most federal conditions for funding the states are considered to be consensual. This Court allows the federal government to avoid the commandering doctrine by simply using funding conditions. Federal funding can create profound pressures that go beyond the requirements of federal action. However, the main point is that commandoing or structural violations against the Constitution shouldn’t depend on force, coercion, or any other pressure. Therefore, the requirement for coercion is completely misunderstood. But the Court is convinced of the centrality 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. There is a wider judicial error.
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. The Supreme Court permits the federal government to regulate under conditions based on its resources. These conditions can be regulated when the federal government grants money to states if they agree to certain vaccination requirements. They are not imposed through law or public acts of public bodies, but they can only be applied to the states and institutions by the state in which they have been accepted. The federal government can buy political and legal resistance through this pecuniary control. The private control of transactions also transforms the public act-based constitution into a transactional form.
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. Is it true that the federal government could use our money in order to ensure our dependency and subvert our institutions?
Federal government’s constitutional rights cannot be rescinded by state or private consent. While the resounding Articles of Confederation were intended to be a binding agreement between the states, pro-slavery Southerners saw the U.S. Constitution in that same light. 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. This law cannot be altered by any private consent or state consent. It is therefore shameful for the Court to suggest that any form of state consent, even if it comes from unconstitutional grants, can be used by the federal government to free itself from constitutional restrictions.
This begs the question: Biden v. Missouri goes far beyond vaccination. A new form of governance is at stake, the purchase of submission under an illegal pecuniary regulation. Rather than merely evaluate the Biden administration’s misdeeds—serious as they are—the Court should reflect upon its own wayward doctrines. These Court departures from Constitution allow, or even normalize, the government to make a variety of decisions. The Court is responsible for this.
Philip Hamburger is an American professor of law at Columbia Law School. He also serves as president and CEO of the New Civil Liberties Alliance. He is also the author of Purchasing Submission: Terms, Power and Freedom (Harvard Univ. (Harvard Univ. Press 2021).