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Unconstitutional Conditions and the Constitutional Text

Federal and state actors sometimes condition access to benefits that they are constitutionally permitted but not obligated to provide on the willingness of recipients to engage in certain behavior that governments cannot compel directly. Current judicial doctrine treats such conditional offers as sometimes permitted and sometimes prohibited. But existing case law addressing such “unconstitutional conditions” challenges lacks a coherent account of when and why such conditional offers violate the Constitution. A wide-ranging academic debate has swirled around the doctrine, with commentators proposing various reforms to bring order to the courts’ confused and confusing jurisprudence.

A curious feature of this debate has been the relative inattention most participants have given to what the Constitution itself has to say on the subject. The comparative paucity of text-centered arguments in the unconstitutional conditions literature is likely attributable to a perception that the text has little or nothing to say on the issue. This Article challenges that assumption by demonstrating how the text can provide important insights regarding the permissible limits of conditional governmental offers. This analysis suggests that certain aspects of current judicial doctrine, including the presumed waivability of most significant individual rights guarantees and the courts’ tendency to focus on the “germaneness” of particular conditions to the government’s regulatory objectives as a measure of constitutionality, are likely consistent with a proper interpretation of the constitutional text.

But not every feature of current unconstitutional conditions jurisprudence is similarly textually defensible. In particular, this Article contends that efforts to extend the unconstitutional conditions framework developed in cases involving individual rights to the much different context of state-federal bargaining ignores important textual distinctions between the Constitution’s individual rights guarantees and the structural limitations that allocate authority between the states and the federal government. And while the Constitution almost certainly places some limits on the permissible scope of state-federal bargaining, certain aspects of the Supreme Court’s existing federalism jurisprudence—including the presumed invalidity of federal offers that “compel” or “coerce” state decision-making—lack any firm grounding in the constitutional text.