Ilan Wurman (University of Minnesota Law School) has posted Unconstitutional Conditions and the Doctrine of Public Rights, forthcoming in the Administrative Law Review, vol. 78, on SSRN. Here is the abstract:
The Supreme Court is in the throes of a public rights counterrevolution. The public rights doctrine is an “exception” to the requirements of Article III and the Seventh Amendment that allows certain matters to be adjudicated in administrative tribunals. The modern Court has begun to narrow the scope of the doctrine by looking to history and tradition. Yet despite the Court’s turn to history, its cases remain puzzling. The Court has struggled to explain why certain categories of what seem to be private rights—regulatory penalties in the immigration or trade context, for example—are treated as being within the scope of the public rights exception. There is an answer: the Supreme Court’s cases involve two doctrines, not one. The public rights doctrine applies only to genuinely public rights: public benefits disputes over which have never required court adjudications. Many of the Court’s cases, however, do not involve public rights as such, but rather the unconstitutional conditions doctrine: they involve Congress’s ability to require forgoing a private right as a condition of enjoying a public right. The unconstitutional conditions doctrine provides that Congress may require forgoing private rights as a condition of receiving public benefits if doing so is germane to the public benefit and the condition is not coercive, leaving the individual a genuine choice. The doctrine is disfavored and conditions must be rigorously examined. An unconstitutional conditions analysis, however, explains why Congress can often permit without judicial process the imposition of fines if the only consequence is loss of a public privilege, while it cannot forgo Seventh Amendment and Article III rights before imposing regulatory penalties more generally. It explains why Congress can subject banks and their officers to administrative cease-and-desist authority as a condition of receiving federal insurance funds, but cannot subject their officers to retrospective punishments. And it can explain more besides, including the Supreme Court’s foundational nineteenth century case about public rights. Untangling the public rights and unconstitutional conditions doctrines clarifies much that is confusing about the historic and modern cases, and can help guide the lower courts in the numerous cases now confronting them in which both public and private rights are at issue.
Highly recommended.
Lawrence Solum