Article

Unconstitutional Conditions: The Irrelevance of Consent

The unconstitutional conditions problem is the Gordian Knot of constitutional law. The standard solution is to cut through the knot with consent–to conclude that consent excuses otherwise unconstitutional restrictions. Of course, this leaves open the danger that the government can evade most of its constitutional limitations, and the literature on unconstitutional conditions therefore focuses on when consent has a curative effect and when it does not. In other words, the conventional analysis uses consent to hack half-way through unconstitutional conditions, but not all the way. It thereby creates many loose ends, without fully solving the problem. Indeed, current doctrine on unconstitutional conditions is widely recognized to be as incoherent and inconsistent as it is important.

It therefore is necessary to reconsider the reliance on consent. Rather than a solution that can cut through the problem, consent is the source of confusion.

This Article unravels the different roles of consent to understand what it can do and what it cannot. On this basis, the Article concludes that consent is irrelevant for restrictions that go beyond the government’s power. Undoubtedly, under the Constitution’s enumerated powers, consent often allows the government to impose restrictions it could not impose directly. But this does not mean that consent can justify the government in going beyond its legal limits. The Constitution’s limits on the government’s authority are legal limits imposed with the consent of the people. Therefore, private consent (whether from individuals or institutions) cannot alter these limits or otherwise enlarge the government’s constitutional power.

This is most clear as to the separation of powers and the enumerated rights. Most of these limits, unlike the enumerated powers, do not define government power in terms of consent. As a result, there is no question of whether consent allows the government to impose restrictions it could not impose directly. Instead, the question is merely whether private consent can relieve the government of its constitutional limitations, permitting it to do what the Constitution forbids. Therefore, at least as to the separation of powers and the enumerated rights, the government cannot do by consent what it could not otherwise do by law.

Applying Constitutional Decision Rules Versus Invalidating Statutes In Toto: An Alternative To Rosenkranz’s Approach To Facial, As-Applied, And Overbreadth Adjudication

Nicholas Rosenkranz has recently proposed a model of judicial review for dealing with facial and as-applied challenges. This model argues that “facial” challenges necessarily apply to suits against legislative actions and, where successful, lead to total invalidation of the statutory provision at issue; whereas “as-applied” challenges are as-executed challenges to executive conduct and can only lead to vindication of the litigant’s rights in the case at issue. This Article explains that there is a fundamental flaw in Rosenkranz’s approach—a flaw often repeated by other scholars and that has caused serious confusion among judges: the failure to differentiate between the object of a court’s constitutional inquiry (the text of the challenged law, for example), and the remedy a court will order when it finds that the object is constitutionally infirm (invalidating the statute in toto, for example). In addressing this flaw, this Article analyzes the complex relationship between constitutional decision rules and invalidation rules. Understanding this relationship provides answers to questions that have long puzzled courts and commentators, including why there are both as-applied and facial commerce clause challenges and the significance of these doctrines to the pending litigation regarding the Affordable Care Act’s individual mandate.

The Article also uses the relationship between decision rules and invalidation rules to provide a novel explanation for the Court’s adoption of overbreadth doctrine under the First Amendment’s Free Speech Clause. The Article explains that overbreadth is merely a different invalidation rule that became necessary because the Court’s First Amendment decision rules proved insufficient. Understanding that insufficiency of decision rules is what drove the Court to adopt overbreadth provides an extremely useful template for determining whether overbreadth should be made available in controversial and high-stakes areas of law such as abortion and the Second Amendment.

Content Discrimination Revisited

A central feature of First Amendment law is the prohibition on content discrimination. It provides that the government generally may not regulate expression on the basis of the message it communicates. It has become commonplace to say that the Supreme Court’s content-discrimination jurisprudence is incoherent—that it has suffered so many complications, elaborations, and exceptions that it looks deeply inconsistent, if not end-determined. This article argues that this criticism is overblown. The case law is united in an overarching concern with subject-matter and viewpoint discrimination. The Court has consistently treated facial classifications of these kinds as suspect. When it examines laws that do not facially discriminate on these bases, covert subject-matter and viewpoint discrimination are its constant concerns, and it has been unwilling to impute them without particular kinds of strong evidence. One may argue that the Court should be doing something different, or that it should be doing what it does in a different way. But to the extent that a major criticism of the existing approach is its lack of coherence, a reevaluation is in order.

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