47 Pages Posted: 2 Apr 2020 Last revised: 29 Jan 2021
Date Written: January 28, 2021
Sometimes government operates by inducement rather than order. Congress distributes money to the states. A state grants funds to nonprofit organizations. An administrative agency offers wages and professional opportunities to its staff. A high school provides instruction to its students. In each situation, the government furnishes something of value. And in each situation, it asks something in return—whether implementation of a government program, forbearance from activities deemed inconsistent with operational goals, conduct in pursuit of an employment mission, or compliance with standards of academic discipline.
Though they arise in different contexts, these varied forms of government action present the same core question of constitutional justification. The issue in each case is the extent of the government’s power to bargain for what it does not, will not, or cannot demand. It is beyond dispute that state and federal governments have broad authority to implement policy through inducements. It is just as clear that there are limits on what governments may buy. As it has explored those limits in recent years, the Supreme Court has turned repeatedly to the concept of leverage: the government’s exploitation of a public asset to influence unrelated behavior.
Keywords: leverage, unconstitutional conditions, federalism, freedom of speech, constitutional law
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