Unconstitutional conditions, germaneness and institutional review boards

Northwestern University Law Review

Volumn 101, Issue 2, 2007, Pages 775-789

  Lerner, Renée Lettow ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34547959336     PISSN: 00293571     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (88)

1. Kathleen M. Sullivan, Unconstitutional Conditions, 102 HARV. L. REV. 1413, 1415 (1989).
2. See 45 C.F.R. § 46.101(a) (2006).
3. Philip Hamburger, The New Censorship: Institutional Review Boards, 2004 S. CT. REV. 271, 281-313.
4. See James Weinstein, Institutional Review Boards and the Constitution, 101 NW. U. L. REV. 493 (2007).
5. See, e.g., Hamburger, supra note 3, at 315 n.110, 317-18.
6. See Hamburger, supra note 3, at 317-18. Analyzing the work of Jeffrey Renz, Hamburger points out that the "so-called Spending Clause" was in fact intended as a check on the taxing power and that it was deliberately drafted to avoid a general spending power.
7. See id. at 317 & n.1 12 (citing Jeffrey T. Renz, What Spending Clause? (Or the President's Paramour): An Examination of the Views of Hamilton, Madison, and Story on Article I, Section 8, Clause 1 of the United States Constitution, 33 J. MARSHALL L. REV. 81 (1999)).
8. Scholars have given many answers to this question. For example, Epstein, coming from a public choice perspective, is concerned about reducing rent-seeking associated with public funding. He suggests that at least germaneness limits the scope of bargaining between government and others, and therefore to some extent limits rent-seeking. See Richard A. Epstein, The Supreme Court, 1987 Term - Forward: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 HARV. L. REV. 4, 17-22(1988).
9. See, e.g., Thomas R. McCoy & Barry Friedman, Conditional Spending: Federalism's Trojan Horse, 1988 S. CT. REV. 85, 103;
10. see also Lynn A. Baker, Conditional Federal Spending After Lopez, 95 COLUM. L. REV. 1911, 1962-63 (1995) (calling the distinction one of "reimbursement spending" versus "regulatory spending");
11. Hamburger, supra note 3, at 315-16 & 318-19.
12. 483 U.S. 203, 212-18 (1987) (O'Connor, J., dissenting). Justice O'Connor's dissent, in turn, built on the Court's analysis in United States v. Butler, 297 U.S. 1, 73 (193). For analysis of the relationship of Butler to the Dole opinions and the implications of Chief Justice Rehnquist's opinion for the Court in Dole, see McCoy & Friedman, supra note 8, at 123:
13. If the direct purchase of voluntary conduct is spending-something separate and apart from regulation-there is no constitutional problem of Congress exceeding its delegated regulatory powers. Indeed, if Congress can purchase conduct, why go to the trouble of purchasing some goods and services and then attaching the purchase of conduct to the purchase of the goods and services as in Dole? Congress simply could pay states a flat fee to enact laws Congress desires, but which are outside the scope of Congress' regulatory power.
14. Id.
15. But even when acting as a purchaser, Congress could not buy a right that the Constitution allocates elsewhere. (This last caveat is not because of a broad federal spending power, but simply because of the constitutional scheme of limited legislative powers.) Nonetheless, if the government is acting as a purchaser, it can reach a more modest agreement with a person to waive a particular exercise of a right. For example, the government could condition federal employment on the employee not revealing information he has learned on the job. But it could not have a condition that he never speak in public on a matter unrelated to the job. See Hamburger, supra note 3, at 319-21.
16. See Hamburger, supra note 3, at 319. This is an appropriate recasting of Seth Kreimer's distinction between threats and offers.
17. See Seth Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. PA. L. REV. 1293, 1301 (1984).
18. See Hamburger, supra note 3, at 326 n.130.
19. Kathleen Sullivan has suggested using an Equal Protection approach to unconstitutional conditions in a much more sweeping way. Sullivan, supra note 1, at 1499-1500. The incorporation of Equal Protection principles suggested here would be more targeted, and used to hone an approach the Court has already taken, the germaneness inquiry. Sullivan rejects the germaneness inquiry as inadequate and unworkable.
20. Id. at 1474-76.
21. Id. at 1499-1500. Unfortunately, as Sullivan points out, this formulation does not define what the scope of the right should be.
22. See Hamburger, supra note 3, at 320-21 & n.l19.
23. The Court in some cases characterizes the distinction as one turning on whether a right must be "subsidized," and declares that Congress need not subsidize exercise of a right. See Regan v. Taxation with Representation, 461 U.S. 540, 546 (1983).
24. See id. at 544.
25. See id. at 551.
26. See id. at 544.
27. See id. at 552.
28. 468 U.S. 364 (1984).
29. See id. at 366.
30. See id. at 400-01.
31. 500 U.S. 173 (1991).
32. Id. at 196.
33. See 45 C.F.R. § 46.103(b)(1) (2006).
34. See NAT'L COMM'N FOR THE PROT. OF HUMAN SUBJECTS OF BIOMEDICAL AND BEHAVIORAL RESEARCH, THE BELMONT REPORT: ETHICAL PRINCIPLES AND GUIDELINES FOR THE PROTECTION OF HUMAN SUBJECTS OF RESEARCH (DHEW Publication No. 78-0012, 1979);
35. see also U.S. DEP'T OF HEALTH AND HUMAN SERVS., OFFICE FOR HUMAN RESEARCH PROTS., FEDERALWIDE ASSURANCE (FWA) FOR THE PROTECTION OF HUMAN SUBJECTS l (2005) [hereinafter FEDERALWIDE ASSURANCE], available at http://www.hhs.gov/ohrp/humansubjects/assurance/filasurt.htm.
36. See FEDERALWIDE ASSURANCE, supra note 27, at 1.
37. See Hamburger, supra note 3, at 322 n.122.
38. There is, of course, substantial literature devoted to that question. See, e.g., Paul Brest, Palmer v. Thompson: An Approach to the Problem of Unconstitutional Legislative Motive, 1971 S. CT. REV. 95, 101-46;
39. John Hart Ely, Legislative and Administrative Motivation in Constitutional Law, 79 YALE L.J. 1205 (1970).
40. A large number of cases addressing the problem of determining government purpose are cited in the various opinions in Kassel v. Consolidated Freightways. 450 U.S. 662, 682 n.3 (1981) (Brennan, J., concurring in the judgment);
41. id. at 702-03 (Rehnquist, J., dissenting).
42. See Sullivan, supra note 1, at 1474.
43. Sex-discrimination cases are particularly instructive. Racial classifications are almost never upheld, unless members of certain racial groups are benefited in higher education, in which case the U.S. Supreme Court has held equal protection is relatively easy to satisfy. See generally Grutter v. Bollinger, 539 U.S. 306 (2003) (upholding the affirmative action program used by the University of Michigan Law School).
44. See Sullivan, supra note 1, at 1474.
45. See South Dakota v. Dole, 483 U.S. 203, 208-09 (1987) (Rehnquist, C.J.).
46. See id. at 218 (O'Connor, J., dissenting).
47. Compare Nollan v. Calif. Coastal Comm'n, 483 U.S. 825, 834-36 (1987),
48. with Nollan, 483 U.S. at 843-48 (Brennan, J., dissenting).
49. Speiser v. Randall, 357 U.S. 513, 519 (1958) (quoting Am. Commc'ns Ass'n v. Douds, 339 U.S. 382, 402(1950)).
50. Rust v. Sullivan, 500 U.S. 173, 200 (1991);
51. see also id. at 194 (Abortion is "outside of the project's scope.");
52. id. at 195 (Abortion activities are "excluded from the scope of the project funded.");
53. id. at 200 ("The program does not provide post conception medical care, and therefore a doctor's silence with regard to abortion cannot reasonably be thought to mislead a client into thinking that the doctor does not think abortion an appropriate option for her."). The Court stated that, because the government program was to provide preconception services, all post-conception services were simply outside its scope.
54. Id. at 179 ("Because Title X is limited to preconceptional services, the program does not furnish services related to childbirth.");
55. id. at 193 ("The Title X program is designed not for prenatal care, but to encourage family planning. . . . [P]renatal care ... is outside the scope of the federally funded program.").
56. See Rust, 500 U.S. at 210 (Blackmun, J, dissenting).
57. Rust, 500 U.S. at 196 (emphasis original).
58. John A. Robertson, The Law of Institutional Review Boards, 26 UCLA L. REV. 484, 500 (1978).
59. Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982) (quoting Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980)).
60. United States v. Virginia, 518 U.S. 515, 535-36 (1996).
61. See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636, 650 (1975) (examining in detail legislative history going back to the origin of the program in 1939 to determine that, in a provision of the Social Security Act, "Congress was not concerned . . . with the employment problems of women generally but with the principle that children of covered employees are entitled to the personal attention of the surviving parent if that parent chooses not to work");
62. Califano v. Goldfarb, 430 U.S. 199, 216-17 (1977) (conducting similar examination: "We conclude, therefore, that the differential treatment of nondependent widows and widowers results not, as appellant asserts, from a deliberate congressional intention to remedy the arguably greater needs of the former, but rather from an intention to aid the dependent spouses of deceased wage earners, coupled with the presumption that wives are usually dependent.").
63. See Virginia, 518 U.S. at 535-40;
64. Hogan, 458 U.S. at 727-30.
65. COMMITTEE REPORT ON THE NATIONAL RESEARCH ACT, Pub. L. No. 93-348, S. REP. NO. 93-381 (1974), as reprinted in 1974 U.S.CCA.N. 3634, 3653.
66. For an account of the historical genesis of IRB regulations, see Hamburger, supra note 3, at 325 & n.127.
67. Id.
68. NAT'L RESEARCH COMM'N FOR THE PROT, OF HUMAN SUBJECTS OF BIOMEDICAL AND BEHAVIORAL RESEARCH, REPORT AND RECOMMENDATIONS: INSTITUTIONAL REVIEW BOARDS 3 (DHEW Publication No. 78-0008) (1978).
69. Proposed Regulations Amending Basic HEW Policy for Protection of Human Research Subjects, 44 Fed. Reg. 47, 688 (proposed Aug. 14, 1979).
70. Hamburger, supra note 3, at 325.
71. South Dakota v. Dole, 483 U.S. 203, 208 (1987).
72. Id. at 214 (O'Connor, J. dissenting).
73. Id. at 215.
74. Id.
75. Id. at 216 (quoting Brief for the National Conference of State Legislatures et al. as Amici Curiae).
76. FCC v. League of Women Voters, 468 U.S. 364, 399 (1984). The government had argued this narrow definition of purpose in the unconstitutional conditions context to accord with the Court's thenrecent case Taxation with Representation, which upheld the lobbying restrictions on 501(c)(3) organizations in part because they could form affiliates to engage in lobbying.
77. See Regan v. Taxation with Representation, 461 U.S. 540, 551 (1983).
78. League of Women Voters, 468 U.S. at 400.
79. Id. at 380. The Court did not adopt a strict scrutiny test in that case because it involved broadcast media.
80. Id. at 374-81.
81. Id. at 388-90.
82. Id. at 390-99.
83. See Robertson, supra note 41, at 500. Robertson emphasizes the institution's role as well as the researcher's in phrasing the argument this way: "Requiring the same rules for all research with human subjects might sensitize the institution to problems of protecting subjects; stimulate oversight of research; and induce greater awareness, commitment, and consistency in ethical concerns among investigators, thereby promoting ethical conduct in federally funded research."
84. Robertson, supra note 41, at 500. The National Science Foundation has lent support to this connection in its answer to the question: "What are the overall goals of the federal policy? . . . . Institutions engaged in research should foster a culture of ethical research."
85. Hamburger, supra note 3, at 325 n. 127.
86. Many participants in this Symposium have discussed the burdens IRBs impose. These include research delays, expenditure of considerable time and effort to comply, and suppression of speech and the press. See also Hamburger, supra note 3, at 343-50.
87. League of Women Voters, 468 U.S. at 401 n.27.
88. See Hamburger, supra note 3, at 339-43.