Philip Hamburger holds an endowed chair at Columbia Law School and is author, most recently, of Purchasing Submission: Conditions, Power, and Freedom, just published by Harvard University Press. I was a fanatic admirer of Professor Hamburger’s Is Administrative Law Unlawful? (2014), which I reviewed for National Review in “A new old regime.” I thought it was the most important book I had read in a long time and still do.
Professor Hamburger’s new book is shorter, narrower, and more accessible than Is Administrative Law Unlawful? In Purchasing Submission he takes up the issue of the federal government’s use of indirect power to impose legal requirements through conditions (“regulation effected by bureaucratic bribery, extortion, and barratry,” as Ninth Circuit Judge Carlos Bea pungently puts it in a quote on the book jacket).
Professor Hamburger provides eight familiar examples in the opening pages of the book and raises the question whether the imposition of legal requirements in this manner is lawful. One of Professor Hamburger’s eight examples is the Solomon Amendment (and the Defense Department interpretation of it). The Solomon Amendment uses the threat of withholding federal funds to prevent academic institutions from barring military recruiting on campus.
I wrote about one application of the Solomon Amendment in the 2005 Weekly Standard column “JAGs not welcome” without any notion it might be problematic. The threat of withholding federal funds from Yale — my case study in the column — was a sword of Damocles that had its intended effect, as it almost always does.
The issue of administratively imposed legal requirements arises in multifarious forms in connection with the Covid-19 epidemic. Federal vaccination requirements backed by the imposition of conditions are one such form. Professor Hamburger’s new book therefore could not be more timely. It seems uncannily to have been written in anticipation of this moment.
Professor Hamburger recently appeared with Jenin Younes on the Bill Walton Show (not that Bill Walton) to discuss the issue of indirectly imposed legal requirements such as the prospective OSHA vaccination mandate. The Walton Show episode is available in transcript and in podcast form here. I have posted the YouTube video below.