By Mike Dorf
Yesterday was Constitution Day. Under a federal law that was the brainchild of Senator Robert Byrd and which became effective in 2005, all educational institutions receiving federal funds were required to hold events promoting understanding of the Constitution. At Cornell Law School, we had two panel discussions commemorating the 225th anniversary of the signing of the Constitution. As one would expect in a university setting, the discussion included considerable criticism of the Constitution and various interpretations of it--thus demonstrating the foolishness of the underlying law, or perhaps demonstrating its unintentional wisdom.
But is Constitution Day itself unconstitutional, as Kent Greenfield argued last year in the New York Times? Greenfield suggested that by threatening to withhold federal funds from educational institutions that do not celebrate Constitution Day, the law was an unconstitutional condition on the academic freedom, and thus the free speech rights, of those institutions. As Lyle Denniston explained, however, the notoriously slippery unconstitutional conditions doctrine may or may not condemn Constitution Day.
Here I want to pursue another possibility--which was jokingly raised by Jamal Greene at the Cornell event yesterday but which strikes me as serious: In light of the 7-2 ruling of the Supreme Court on the Spending Clause aspect of the Health Care Case, maybe Constitution Day is unconstitutional because it falls outside of the affirmative powers of Congress, quite apart from the First Amendment.
At least as applied to private institutions, there is an initial question of whether the Court's Spending Clause doctrines are even relevant. All of the contemporary cases involving challenges to Congress's Spending Clause power involve conditions attached to money given to states. Further, as the Court explains those limits in the Health Care Case, they backstop the further federalism principle that Congress may not "commandeer" the States by requiring them to regulate private actors. When conditional spending becomes "coercive," however, Congress has crossed the line into commandeering. The anti-commandeering doctrine is about preserving state sovereignty, and so it has not been applied to laws that commandeer private parties, but the 5-4 ruling on the Commerce Clause aspect of the Health Care Case could be thought to endorse a theory advanced by Randy Barnett, under which Congress is forbidden from commandeering "the People" as well as the states. Accordingly, we might plausibly think that conditional spending in the form of grants to private actors is also forbidden when the conditions cross the line into coercion.
In any event, even if the Spending Clause doctrine does not apply to private universities, it does apply to state universities. Thus, it's worth asking whether the law establishing Constitution Day can survive a challenge under the Spending Clause, because such a challenge would be viable for at least some universities.
How viable? Well, as in the Health Care Case, so too under the Constitution Day law, a university that fails to hold Constitution Day ceremonies could lose all of its federal funding. Moreover, the Constitution Day law, like the invalidated Medicaid provision, applies to "pre-existing" funding, rather than just to "new" funding. Thus, prima facie, one could see Constitution Day running afoul of the newly rigorous Spending Clause test.
Pointing in the opposite direction are two important factors: 1) There is no enforcement mechanism by which institutions that fail to hold the required festivities will actually lose their federal money; and 2) Although federal aid to higher education is substantial, it is not quite on the same scale as Medicaid funding, which accounts for over 20% of the average State's budget.
In my judgment, that's probably enough to put the Constitution Day law on the permissible side of the divide between inducement and coercion. But we will need to see quite a few more Spending Clause challenges to discover exactly where that line falls.