Unconstitutional conditions are a conundrum. On the one hand, if government can spend, why can't it place whatever conditions it wants on its spending? On the other hand, if it can place any conditions on spending, won't it be able to impose restrictions that evade much of the Constitution, including most constitutional rights? This enigma is notoriously complex, and unconstitutional conditions therefore are considered a sort of Gordian knot. The standard solution is to slice through the knot with consent to conclude that consent excuses otherwise unconstitutional restrictions. This solution, however, is problematic, for it concedes that the government can use consent to escape constitutional limits. Accordingly, even in the consent analysis, it usually is recognized that consent cannot be effective in all instances, lest it itself become a threat. Consent, in other words, creates many loose ends without really cutting through the problem. Indeed, the consent analysis of unconstitutional conditions is widely acknowledged to be inconsistent. It therefore is necessary to reconsider consent. Rather than a solution, consent is the source of the confusion. This Article unravels the different roles of consent to understand what it can do and what it cannot. In fact, the problem is composed of at least three lines of inquiry: consent in general, delegation, and force. In each strand of the problem, confusion can be avoided simply by differentiating what consent can accomplish and what it cannot. On this basis, this Article concludes that consent is irrelevant for conditions that go beyond the government's power. Under the Constitution's grant of powers, consent often enables 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 are legal limits imposed with the consent of the people. Therefore, neither private nor state consent can alter these limits or otherwise enlarge the federal government's constitutional power. In this sense, consent is irrelevant.
Philip A. Hamburger,
Unconstitutional Conditions: The Irrelevance of Consent,
Va. L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/484