Extortionary Governance

ABSTRACT:

Philip Hamburger has argued that modern administrative law is fundamentally anti-constitutional. Worse, he contends, the practice of conditioning the surrender of legal rights on the receipt of government benefits deprives us even of the simulacrum of the formal protections offered by the Constitution’s prescribed mode of making and enforcing law.

Hamburger rejects the conventional assumption that the Constitution authorizes the government to do whatever the Supreme Court endorses or tolerates. He also recognizes that there is not much chance of enforcing the Constitution without the Court’s help. But will such assistance ever be offered?

For over thirty years, the Supreme Court has continuously had a majority of members appointed by Presidents committed to fostering judicial fidelity to the written Constitution. A review of the Court’s treatment of conditional grants to the states during this period suggests that there is little reason to expect anything more than symbolic or minutely incremental doctrinal reforms. Two administrative law cases on the Court’s current docket could initiate a significant departure from this pattern, but only if the Justices act with unexpected boldness.