The state action principle and its critics

Virginia Law Review

Volumn 96, Issue 8, 2010, Pages 1767-1835

  BeVier, Lillian ^a   Harrison, John ^a  

^a UNIVERSITY OF VIRGINIA SCHOOL OF LAW   (United States)

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EID: 79551658668     PISSN: 00426601     EISSN: None     Source Type: Journal    
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References (264)

1. See, e.g., Hague v. Comm. for Indus. Org., 307 U.S. 496, 515-16 (1939) (making void ordinances forbidding holding public meetings in public places without permits);
2. Schneider v. State, 308 U.S. 147, 164 (1939) (holding a municipality cannot "require all who wish to disseminate ideas to present them first to police authorities for their consideration and approval");
3. Capitol Square Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 754 (1995) (stating that Ohio cannot, "on the claim of misperception of official endorsement, ban all private religious speech from the [public] square").
4. It would also violate the Fifth Amendment's Takings Clause unless it provided for compensation to property owners, but we put that issue aside for the moment.
5. See U.S. Const, amend. V.
6. We acknowledge and regret that our decision to narrow, and we hope thereby to sharpen, our focus has required us to neglect some important and interesting recent work by other scholars, especially those who have been laboring so productively in comparative constitutional law.
7. See, e.g., Stephen Gardbaum, The "Horizontal Effect" of Constitutional Rights, 102 Mich. L. Rev. 387,389 (2003) (arguing that only a comparative lens can provide a full answer to the fundamental question of the extent to which constitutional rights govern in the private sphere in American law).
8. See Gary Peller & Mark Tushnet, State Action and a New Birth of Freedom, 92 Geo. L.J. 779, 789 (2004) (crediting Hale, along with Wesley Hohfeld, with demonstrating that "the state action doctrine is analytically incoherent because... state regulation of so-called private conduct is always present, as a matter of analytic necessity, within a legal order").
9. See Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 Pol. Sci. Q. 470, 471 (1923) [hereinafter Hale, Coercion and Distribution] ("What is the government doing when it 'protects a property right'? Passively, it is abstaining from interference with the owner when he deals with the thing owned; actively, it is forcing the non-owner to desist from handling it, unless the owner consents.");
10. Robert L. Hale, Force and the State: A Comparison of " Political" and "Economic" Compulsion, 35 Colum. L. Rev. 149, 197-98 (1935) ("If the power to set judicial machinery in motion for the enforcement of legal duties be recognized as a delegation of state power, it would be immaterial that those who have that power are not 'acting in matters of high public interest.'").
11. But cf. id. at 199 ("It is perhaps fortunate, in some respects, that the courts have been blind to the fact that much of the private power over others is in fact delegated by the state, and that all of it is 'sanctioned' in the sense of being permitted.");
12. Barbara H. Fried, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement 71 (1998);
13. Neil Duxbury, Robert Hale and the Economy of Legal Force, 53 Mod. L. Rev. 421, 434 (1990) ("Throughout many of his works he treats 'personal control' and 'public regulation' as two sides of the same coin.") (internal footnote omitted).
14. Arthur Allen Leff, Law and, 87 Yale L.J. 989,997 (1978).
15. Another early critique along these lines was made by legal realist Morris Cohen. See Morris R. Cohen, Property and Sovereignty, 13 Cornell L.Q. 8,22 (1927).
16. Hale, Coercion and Distribution, supra note 5, at 478.
17. For a sampling of the many reviews of Sunstein's book, The Partial Constitution, in which he articulated his state action analysis at some length, see Robert W. Bennett, Of Gnarled Pegs and Round Holes: Sunstein's Civic Republicanism and the American Constitution, 11 Const. Comment. 395 (1994);
18. Gregory E. Maggs, Yet Still Partial to It, 103 Yale L.J. 1627 (1994);
19. Frederick Schauer, Acts, Omissions, and Constitutionalism, 105 Ethics 916 (1995);
20. Mark Tushnet, The Bricoleur at the Center, 60 U. Chi. L. Rev. 1071 (1993).
21. Cass R. Sunstein, The Partial Constitution 71 (1993).
22. Id.
23. Peller & Tushnet, supra note 4, at 814.
24. Indeed, in his review of The Partial Constitution, Tushnet expressed the view that Sunstein had reformulated the doctrine in such as way as to "eliminate[] it as a doctrine."
25. Tushnet, supra note 9, at 1107.
26. Sunstein, supra note 10, at 72.
27. Id.
28. Id. at 68.
29. Id. 17 Id. at 69.
30. Id. at 341.
31. Id. at 40-67.
32. 26I U.S. 525 (1923).
33. Sunstein, supra note 10, at 205.
34. Cass R. Sunstein, State Action Is Always Present, 3 Chi. J. Int'l L. 465, 467 (2002).
35. Id.
36. see also Sunstein, supra note 10, at 159-60 ("[T]he state action doctrine calls for an inquiry into whether the state action at issue in the relevant case violates the pertinent provision of the Constitution.") (internal emphasis omitted).
37. Sunstein, supra note 10, at 204.
38. Cass R. Sunstein, Free Speech Now, in The Bill of Rights in the Modern State 255, 265 (Geoffrey R. Stone et al. eds., 1992).
39. Sunstein, supra note 10, at 71.
40. Louis Michael Seidman & Mark V. Tushnet, Remnants of Belief: Contemporary Constitutional Issues 49-71 (1996).
41. 489 U.S. 189 (1989).
42. Seidman & Tushnet, supra note 27, at 57.
43. Id. at 63.
44. Id. at 64-65 (discussing The Civil Rights Cases, 109 U.S. 3 (1883)).
45. Id. at 66-67.
46. Id. at 66.
47. Id.
48. Id. at 66-67.
49. Seidman and Tushnet apparently embrace the view that a finding that private activity that the Court concludes is not subject to constitutional challenge because it is not state action represents a conclusion that the challenged activity is by definition constitutionally protected from regulation.
50. See id. at 67
51. ("At the moment when the distinction collapsed as a limitation on governmental power, it replicated itself as a limitation on federal judicial power."). We do not think this is a correct way to characterize the content of present doctrine.
52. Schauer, supra note 9, at 916-17.
53. Seidman & Tushnet, supra note 27, at 70. The "we" to whom Seidman and Tushnet refer is not themselves. It is, rather, all participants in the "legal culture we have inherited from the legal realists and the New Deal."
54. Id. at 71.
55. See Lynn A. Baker, The Prices of Rights: Toward a Positive Theory of Unconstitutional Conditions, 75 Cornell L. Rev. 1185,1195-97 (1990) (discussing the failure of recent scholarly attempts to present a positive theory of unconstitutional conditions law);
56. Mitchell N. Berman, Coercion Without Baselines: Unconstitutional Conditions in Three Dimensions, 90 Geo. L.J. 1, 3 (2001) ("Regrettably, more than a century of judicial and scholarly attention to the problem has produced few settled understandings.");
57. Richard A. Epstein, Foreword: Unconstitutional Conditions, State Power, and the Limits of Consent, 102 Harv. L. Rev. 4, 6 (1988) (stating that unconstitutional conditions doctrine has "bedeviled courts and commentators alike" for more than a hundred years);
58. Daniel A. Farber, Free Speech Without Romance: Public Choice and the First Amendment, 105 Harv. L. Rev. 554, 572 (1991) (describing the unconstitutional conditions doctrine as a "notorious conceptual quagmire");
59. Seth F. Kreimer, Allocational Sanctions: The Problem of Negative Rights in a Positive State, 132 U. Pa. L. Rev. 1293,1298 (1984) (noting that the Supreme Court "has yet to adopt a coherent framework for analyzing" alleged unconstitutional conditions);
60. Thomas W. Merrill, Dolan v. City of Tigard: Constitutional Rights as Public Goods, 72 Denv. U L. Rev. 859, 859 (1995) ("The Supreme Court has never offered a satisfactory rationale for [the unconstitutional conditions] doctrine.");
61. Albert J. Rosenthal, Conditional Federal Spending and the Constitution, 39 Stan. L. Rev. 1103,1120 (1987) (describing the history of the unconstitutional conditions doctrine as "convoluted" and asserting that "the general principles that have evolved from that history are seldom useful in solving specific cases");
62. Kathleen M. Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413,1416 (1989) (characterizing the doctrine as "riven with inconsistencies").
63. A number of commentators have concluded that the problem is simply insoluble. See Larry Alexander, Impossible, 72 Denv. U. L. Rev. 1007, 1007 (1995);
64. Frederick Schauer, Too Hard: Unconstitutional Conditions and the Chimera of Constitutional Consistency, 72 Denv. U. L. Rev. 989, 990 (1995);
65. Cass R. Sunstein, Why the Unconstitutional Conditions Doctrine Is an Anachronism (With Particular Reference to Religion, Speech, and Abortion), 70 B.U. L. Rev. 593,594 (1990).
66. Seidman & Tushnet, supra note 27, at 85.
67. Id. at 89.
68. Id.
69. See, e.g., Mark Tushnet, Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law 161-95 (2008).
70. Peller & Tushnet, supra note 4.
71. Cf. id. at 817:
72. [A]n American constitutional law that transcends the public/private distinction of the late Nineteenth Century would guarantee individuals and groups affirmative rights and impose on the government correlative duties to provide the means for the enjoyment of rights....It is a marker of the change in discourse that contemporary opponents of the constitutional recognition of social welfare rights even include left-of-center constitutional theorists who have adopted the institutional formalism of mainstream process-based constitutional theories and base their objections on the supposed inability of courts to enforce social welfare duties on the government. ... [T]he state action doctrine, and the liberal constitutional theories associated with it, stubbornly survive, despite their analytic incoherence.
73. Schauer, supra note 9, at 916-17.
74. Tushnet, supra note 43, at 180.
75. We are not concerned with an aspect of this issue that Hale himself emphasized, which is whether exercises of private rights by some people should be described as coercing other people. As we noted previously, the labels freedom and coercion are no doubt worth struggling over, but their proper definitions are not the principal source of our differences with the state action doctrine's critics.
76. They also seem to think that the doctrine deliberately obscures some other principle or principles that actually determine when the Constitution applies and when it does not. For example, Tushnet argues: Americans accept the modern regulatory state, which is why we have repudiated Lochner, but we are not entirely comfortable with it, which is why we retain the state action doctrine. The state action problem is a difficult one in the United States because Americans have only uneasily committed themselves to a social democratic state.
77. Tushnet, supra note 43, at 181.
78. U.S. Const, art. I, §10, cl. 1.
79. Richard A. Epstein, The Assault that Failed: The Progressive Critique of Laissez Faire, 97 Mich. L. Rev. 1697,1698 (1999)
80. (reviewing Barbara H. Fried, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement (1998)).
81. This is the central idea that permeates Alexander Hamilton's defense of judicial review in The Federalist No. 78, at 492 (Alexander Hamilton) (Benjamin Wright ed., 1961): There is no position which depends on clearer principles than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid. . .. [T]he Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.
82. See Akhil Reed Amar, Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1432-37 (1987) (tracing history and describing the Founders' embrace of the theory that government officers are mere agents-"'representatives,'... 'delegates,' 'deputies,' and 'servants' of the People" exercising only the authority delegated to them by the People in the Constitution);
83. see also James Madison, Report on the Virginia Resolution (Jan. 1800), in 6 The Writings of James Madison 386 (Gaillard Hunt ed., Putnam 1906) (cited in Sunstein, supra note 25, at 257) ("In the United States... [t]he People, not the Government, possess the absolute sovereignty.").
84. See Restatement (Third) of Agency §1.01 (2006) (defining "principal" as party to a fiduciary relationship where an "agent" agrees to act on the principal's behalf);
85. see also MDM Group Assoc, v. CX Reinsurance Co., 165 P.3d 882,889 (Colo. App. 2007) ("In the principal-agent context, it is the agent who owes a fiduciary duty to the principal as a matter of law.").
86. Private actors may of course-and very often do-hire or agree to become agents who act on behalf of others. The important fact, however, is that when private actors establish private agency relationships, the agency is consensual rather than definitional of private power.
87. Id.
88. The justification is generic in that it does not respond to the interests and policies associated with particular constitutional provisions. We take up these matters infra Part III.
89. ack N. Rakove, Original Meanings: Politics and Ideas in the Making of the Constitution 316 (1996) (explaining that at the Federal Convention, James Madison "believed a bill of rights would prove redundant or pointless").
90. When Elbridge Gerry and George Mason raised the possibility of a bill of rights late in the Convention, the proposal was rejected.
91. Id. at 316-18.
92. "The omission left the framers open to the charge that they had contrived to deprive the people of their fundamental rights," but the Framers "thought the charge absurd."
93. Id. at 318.
94. U.S. Const, pmbl.
95. These include the creation of separate legislative, executive, and judicial departments and provisions subjecting each department to checks by the others. Congress is given, inter alia, the power to declare war, to structure the other branches, to conduct impeachments, to control the jurisdiction of the federal courts, and, through the Senate alone, the power to withhold consent to presidential appointments and treaties. The President is given the right to veto legislation, the sole authority to enforce federal law, and the power to nominate federal judges. The courts, meanwhile, can impede the operation of the other branches by means of judicial review. The branches are also given certain explicit protections: Congress is protected from the other branches insofar as it judges its own membership, makes its own rules, and enjoys immunity from prosecution for its legislative acts; the President is elected by a national process, independent of Congress; and the judiciary enjoys life tenure. Federal power is restrained in other respects by mechanisms within the branches, such as congressional bicameralism and the right to trial by jury. Finally, other provisions-the composition of the Senate, the electoral college, and the principle of sovereign immunity-help protect the interests of states.
96. See generally Charles L. Black, Jr., Structure and Relationship in Constitutional Law (1969) (describing structural provisions of the Constitution).
97. Enumerated powers and bicameralism, for example, are structural mechanisms that both grant authority to national government actors and thwart overreaching by agents of the national government vis-á-vis the states. Articles I, II, and III specify the powers of the officials in the three branches of the national government and separate those powers one from the other. The separation of powers, including the unitary executive as well as such mechanisms as the Presentment Clause, the Senate's power to advise and consent, and the President's veto power, thwart overreaching by officials of the branches vis-á-vis one another. Judicial review is the institutional mechanism by which the judiciary holds elected officials, bureaucrats, and lower court judges within constitutional boundaries, and monitors them to assure that they do not overstep the substantive and procedural constraints that the Constitution imposes on their power.
98. See The Federalist No. 78 (Alexander Hamilton), supra note 52.
99. Constitutionally prescribed regularly scheduled elections permit citizens to hold their elected agents to account. First Amendment guarantees of freedom of speech, press, and assembly perform a structural function as well, in that they permit incumbents and challengers to engage in robust debate. In addition, they allow citizens to participate in the political debate that sets the policy agenda, to learn about the behavior of government officials, to join with like-minded individuals in support of their preferred candidates and issues, and to communicate their preferences to their representatives while they are in office.
100. We do not mean to suggest that the critics conceive of power as flowing from the government to the people in describing the structural provisions of the Constitution, in which the relationship is most clearly in the opposite direction.
101. Rather, they discuss other aspects of the Constitution when taking this approach.
102. See, e.g., Sunstein, supra note 10, at 204 ("Consider... Robert Hale's suggestion, capturing much of my argument, to the effect that 'the power to set judicial machinery in motion for the enforcement of legal duties' should 'be recognized as a delegation of state power.' This recognition is precisely what is missing from current free speech law.")
103. (citing Robert Hale, Force and the State, 36 Colum. L. Rev. 149,197 (1935)).
104. Of course the critics' focus on a limited range of constitutional provisions is understandable in light of the fact that it would be nonsensical to subject private decisions to the structural provisions of the Constitution such as enumerated powers and bicameralism. And it would be absurd to subject all private decisionmaking to constitutional rational basis review.
105. Consider the extensive body of ethical rules regulating the activities of government officials. Federal conflict of interest statutes "reflect a commitment to a government that operates in the interests of the general public, as defined by independent and impartial officials, rather than in the interests of private persons, or at the direction of persons with private benefit or gain in mind."
106. Beth Nolan, Public Interest, Private Income: Conflicts and Control Limits on the Outside Income of Government Officials, 87 Nw. U. L. Rev. 57,71 (1992).
107. The existing system of rules relating to conflicts of interest at the federal level is "highly detailed and complicated." Kathleen Clark, Do We Have Enough Ethics in Government Yet? An Answer from Fiduciary Theory, 1996 U. 111. L. Rev. 57, 66 (1996).
108. The Federal Ethics in Government Act of 1978, for instance, requires certain national policymakers and employees to publicly disclose their financial interests on an annual basis.
109. 5 U.S.C. app. §§101(d), 102(a) (2006).
110. Other provisions, inter alia, prohibit bribery and gratuities, see 18 U.S.C. §201 (2006), restrict post-employment activities by former officials, 18 U.S.C. §207 (2006), bar officials from participating in matters in which they have a financial interest, 18 U.S.C. § 208 (2006), and prohibit officials from receiving outside salaries, 18 U.S.C. §209 (2006).
111. For an overview, see Ashley Kircher et al., Public Corruption, 45 Am. Crim. L. Rev. 825 (2008);
112. see also Zephyr Teachout.The Anti-Corruption Principle, 94 Cornell L. Rev. 341, 373-74 (2009) (defining corruption as the "self-serving use of public power for private ends").
113. See The Federalist No. 46 (James Madison), supra note 52, at 330 ("The federal and state governments are in fact but different agents and trustees of the people.");
114. see also Richard J. Pierce, Jr., The Role of the Judiciary in Implementing an Agency Theory of Government, 64 N.Y.U. L. Rev. 1239, 1239 (1989) ("The Constitution is premised on the belief that government should act as the agent of the people.").
115. The Supreme Court describes itself as applying three, or possibly four, distinct tests for determining whether the actions of the government or the relationship between a private entity and the government is sufficient to justify attributing the private entity's behavior to the state.
116. See Blum v. Yaretsky, 457 U.S. 991,1004-05 (1982).
117. Those tests are (1) the "exclusive government function" test, see Flagg Bros., Inc. v. Brooks, 436 U.S. 149,157-62 (1978);
118. Nixon v. Condon, 286 U.S. 73, 88-S9 (1932);
119. the "nexus" or "regulation" test, see Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974);
120. the "symbiotic relationship test," see Burton v. Wilmington Pkg. Auth., 365 U.S. 715,725 (1961);
121. and, possibly, (4) the "entwinement" test, see Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 302-03 (2001).
122. When the Court finds "state action," its finding amounts to a determination that the particular circumstances of the relationship between the supposedly private actor and the state are such as to render the private actor an agent of the state. No less than with common law principles of agency and vicarious liability, the state action doctrine presents the courts with difficult issues in borderline cases. For example, in Burton, the Court found state action in a private restaurant's discriminatory refusal of service. In doing so, it relied on the specific circumstances of the restaurant's involvement with the state, such as the facts that the restaurant leased space in a building owned by the city parking authority, that the parking authority had been created and given broad powers by the state legislature, that it had determined that it needed to lease space in order to generate income, and that the restaurant benefited from the tax exempt status of the parking authority.
123. Burton, 365 U.S. at 717-20.
124. This combination of facts led the Court to conclude that, for purposes of the restaurant's operation in the space leased from the parking authority, the restaurant was a government actor.
125. Id. at 724-26.
126. In Moose Lodge v. Irvis, 407 U.S. 163 (1972),
127. however, the Court found that a private club's discriminatory refusal of service was not state action because the specific circumstances of the club's involvement with the state were insufficient to transform the club from a private to a government actor for purposes of subjecting its behavior to constitutional standards.
128. Id. at 177.
129. 334 U.S. 1 (1948). The other contender for most famous state action case, The Civil Rights Cases, 109 U.S. 3 (1883), is about the power of Congress under §5 of the Fourteenth Amendment, rather than the self-executing effect of the Constitution, id. at 19, so its holding does not directly concern the issue we address, though of course it has implications for that issue.
130. 334U.S. 13.
131. ~64 Id. at 14.
132. Id.
133. Id. at 20.
134. Washington v. Davis, 426 U.S. 229, 242 (1976).
135. Shelley, 334 U.S. at 20 (emphasis added).
136. The author of Shelley, Chief Justice Vinson, may well have believed that the problem was judicial race-consciousness in an even narrower sense.
137. In Barrows v. Jackson, 346 U.S. 249 (1953), he dissented when the Court applied Shelley to block a damages judgment against a white property owner who violated a restrictive covenant by selling to a black buyer.
138. The Chief Justice believed that Barrows was different because of the absence from the case of any party against whom the covenant would be enforced on the basis of race. Thus, in the Shelley case, it was not the covenants which were struck down but judicial enforcement of them against Negro vendees. The question which we decided was simply whether a state court could decree the ouster of Negroes from property which they had purchased and which they were enjoying. We held that it could not. We held that such judicial action, which operated directly against the Negro petitioners and deprived them of their right to enjoy their property solely because of their race, was state action and constituted a denial of "equal protection."
139. Id. at 261 (Vinson, C.J., dissenting).
140. See, e.g., Dallas v. Holmes, 137 F. App'x 746,752 (6th Cir. 2005) (stating allegations against opposing counsel are "frivolous" in light of "well-settled" principle that a lawyer representing a client is not state action);
141. Strickland v. Linahan, 72 F.3d 1531,1533 (11th Cir. 1996) (holding conduct of habeas corpus petitioner's daughter in voluntarily revealing documents to family members and to law enforcement officials was "indisputably private, not in any sense state action");
142. Seay v. Wallace, No. 2:08cv868-TMH 2009 WL 101961, at *1 (M.D.Ala. 2009) (stating claim by prisoner that fellow inmate is a state actor is "frivolous");
143. Havens v. Victoria of Tex. Ltd. P'ship, No. V-06-119 2008 WL 1858924, at *9 (S.D. Tex. 2008) (holding private hospital where plaintiff was employed was "clearly not a state actor");
144. Menefee v. U.P.S., No. 05-CV-74892DT, 2006 WL 373046, at *1 (E.D. Mich. 2006) (calling a claim by prisoner that damage to goods during shipment constituted a civil rights violation "frivolous" since shipping company was "not a state actor");
145. Miner v. Commerce Oil Ref Corp., 198 F. Supp. 887, 891 (D.R.I. 1961) (holding private oil refining company not a state actor since it is "obvious" that the company "is not an agent or instrumentality of the State of Rhode Island").
146. Not only is the text of the Constitution incompatible with the notion that its restrictions generally apply to private citizens, but so is the conceptual structure of many of its protections. The First Amendment, for example, provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." U.S. Const, amend. I. If private citizens were forbidden to endorse and support particular religions, it is hard to see how there would be any possibility of free exercise left to them. Even where specific guarantees of the Bill of Rights are not concerned, the Constitution has been held to require that all government action be supported by a rational basis.
147. See, e.g., Williamson v. Lee Optical, Inc., 348 U.S. 483,48788 (1955) ("[T]he law need not be in every respect logically consistent with its aims to be constitutional.
148. It is enough that there is an evil at hand for correction, and that it might be thought that the particular legislative measure was a rational way to correct it.");
149. United States v. Carolene Prods. Co., 304 U.S. 144,147 (1938) ("Congress is free to exclude from interstate commerce articles whose use in the states for which they are destined it may reasonably conceive to be injurious of the public health, morals or welfare -").
150. Yet even with the robust practice of civil litigation in America today, no competent lawyer would think that her client could bring a claim for damages simply because another private person acted irrationally.
151. See, e.g., Peng v. Mei Chin Penghu, 335 F.3d 970,980 (9th Cir. 2003) (stating arrest by police officer is "[cjlearly" state action);
152. Harvey v. Horan, 278 F.3d 370, 383 (4th Cir. 2002) (stating it is "indisputable" that state prosecuting attorney is state actor);
153. Hay v. Evins, No. 97-5286,1999 WL 96755, at *7 (6th Cir. 1999) (stating a police officer providing evidence to the FBI is "obviously" a state actor);
154. California v. FCC, 75 F.3d 1350,1361 (9th Cir. 1996) (holding a claim that California Public Utility Commission is not a state actor is "clearly frivolous");
155. Washington v. Hall, No. 92-6258,1993 WL 55948, at *3 (10th Cir. 1993) (holding a state juvenile court judge is "clearly a state actor").
156. It is possible, of course, that this predictability in outcomes is actually generated by some hidden principle, and not by the surface, intuitive distinction between government and private people. Sunstein's "baseline" argument suggests that the real work is done by the familiarity or unfamiliarity of the underlying government decision, so that the exercises of familiar property rights are not treated as state action whereas more recently developed legal rules like anti-discrimination laws are state action.
157. See Cass R. Sunstein, Democracy and the Problem of Free Speech 45 (1993) ("Clearly state action underlies the grant and deployment of property rights....").
158. Yet Sunstein's description does not seem accurate to us. On one hand, racially discriminatory rules about property and contract, the most familiar of private law categories, are historically the central exemplars of state action to which §1 of the Fourteenth Amendment applies. U.S. Const, amend. XIV, §1. On the other hand, an individual's decision to bring a lawsuit under an anti-discrimination statute is not subject to constitutional objection on the grounds that the individual acted on the basis of racial animus.
159. For other criticisms of Sunstein's baseline argument, see, for example, David E. Bernstein, Lochner's Legacy's Legacy, 82 Tex L. Rev. 1,2 (2003)
160. (criticizing Sunstein's "baseline"' theory of Lochner v. New York, 198 U.S. 45 (1905));
161. David B. Rivkin, Jr., The Partial Constitution or the Sunstein Constitution?, 18 Harv. J.L. & Pub. Pol'y 293, 312 n.62 (1994) (arguing that Sunstein's support for the constitutional requirement that rights be distributed equally requires an "external yardstick" by which to measure such equality and that the Framers themselves believed in natural rights).
162. In this connection too, it is important to distinguish the general state action requirement from related but distinct concepts. First, the requirement of state action is not the same as the more substantive principle that the Constitution itself does not create or mandate any rules that govern the relations of private people (first-order rules). That principle means that the Constitution contains no independent requirement that certain private rights exist, not that there are no situations under which some other constitutional limitation may entail the extension (or perhaps even creation) of a first-order entitlement. For example, Congress is under no obligation to provide a subsidy for parents of children, because it is under no obligation to provide any cash subsidies. But under current doctrine if Congress were to enact a racially specific subsidy that would have been extended to everyone but for the racial consideration, then almost certainly the Constitution would require that the subsidy be available to all parents, regardless of race. As we will discuss, the normative justifications for the state action requirement are related to the principle that the Constitution mandates hardly any first-order legal entitlements, but the two are distinct conceptually and in their applications. Second, a general requirement of state action must be distinguished from similar features of particular constitutional norms. The Contracts Clause, for example, is about changes in legal entitlements. It therefore cannot be violated when there has been no change in legal entitlements, which is to say when there has been no state action. That is a substantive aspect of the Contracts Clause: it bans certain alterations in vested legal rights. A corollary is that the requirement of action as opposed to inaction has room to operate only with respect to constitutional rules that are not themselves limited to the invalidation of identifiable norms. It is thus no accident that examples of the requirement at work involve constitutional doctrines that can operate on decisions of individual government actors, like legislators, rather than just on formal legal rules. Indeed, this aspect of the state action principle may have come into focus only with the embrace of inquiry into subjective intent; the classic case that seems to embrace the principle, Palmer v. Thompson, also rejects any concern about subjective discriminatory purposes. 403 U.S. 217,224 (1970) (noting the "hazards of declaring a law unconstitutional because of the motivations of its sponsors"). Third, the state action requirement is separate from the rights-privilege distinction. Pursuant to the latter, certain constitutional limitations forbid adverse government decisions with respect to some interests but not others. Procedural requirements under the Due Process Clause, for example, are triggered only by deprivations of life, liberty, or property, and not all interests constitute property. U.S. Const, amend. V. Some form of the distinction operates in constitutional liberty doctrine. The Court's right of privacy cases hold that the limits on criminal punishment for abortion are quite different from the limits on the use of government funds as incentives; Congress and the states may discourage through differential funding abortions that they may not discourage through criminal sanctions. Similar principles apply with respect to free expression, where differential subsidy is permitted to create speech-related incentives that other sanctions could not. Whether the liberty-related doctrines should be called the rights-privilege distinction is a difficult question. Perhaps they should not be, because those cases do not seem to hold that the government may freely create incentives with respect to benefit programs but not with respect to old property. It is hard to believe, for example, that social security payments could be conditioned on the expression of certain views (and equally hard to believe that, as a political matter, they ever would be-though that is beside our point). More likely, the courts are seeking to identify permissible and impermissible purposes with respect to government influence over private speech. With respect to the right of reproductive privacy, the underlying principle probably is that the government may take limited, but only limited, measures to discourage abortion, and the distinction between old property and government benefits is a way of drawing that limit. We consider this point further infra Part III.
163. Schauer, supra note 9, at 916-17.
164. See Daryl J. Levinson, Making Government Pay: Markets, Politics, and the Allocation of Constitutional Costs, 67 U. Chi. L. Rev. 345, 348 (2000) (summarizing differences between market actors and political actors and questioning the "prevailing justifications for mandatory compensation of takings or constitutional torts").
165. See supra text accompanying notes 55-60.
166. See The Federalist No. 51 (James Madison), supra note 52, at 118 ("In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.").
167. See Steven G. Calabresi, Political Parties as Mediating Institutions, 61 U. Chi. L. Rev. 1479, 1525 (1994) ("[T]he separation between the sovereign people and their managers (and their managers' agents) mimics many of the problems that arise in corporate law because of the separation of ownership and control.");
168. Jonathan R. Macey, Transaction Costs and the Normative Elements of the Public Choice Model: An Application to Constitutional Theory, 74 Va. L. Rev. 471,472-73 (1988) (discussing the relationship of the agency-cost problem to American constitutional structure).
169. See Eugene F. Fama, Agency Problems and the Theory of the Firm, 88 J. Pol. Econ. 288,288 (1980);
170. Eugene F. Fama & Michael C. Jensen, Separation of Ownership and Control, 26 J.L. & Econ. 301, 301-02 (1983);
171. Michael C. Jensen & William H. Meckling, Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure, 3 J. Fm. Econ. 305, 305 (1976).
172. See, e.g., Peter Schuck, Suing Government: Citizen Remedies for Official Wrongs 68-69 (1983) ("Most private actors would decide to incur any cost if the expected value of the correlative benefit were great enough, but officials tend to reject any course of action that would drive their personal costs above some minimum level....");
173. John C. Jeffries, Jr., In Praise of the Eleventh Amendment and Section 1983,84 Va. L. Rev. 47, 75 (1998) (arguing that "the incentives of government officers are skewed, as compared to actors in the private sector, toward inaction, passivity, and defensive behavior").
174. See, e.g., Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37 Stan. L. Rev. 1333,1334-39 (1985) (describing direct technology-based, command-and-control standards as inefficient);
175. Ian Ayres & Robert Gertner, Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules, 99 Yale L.J. 87, 91 (1989) (providing a model for creating default rules);
176. Louis Kaplow & Steven Shavell, Do Liability Rules Facilitate Bargaining? A Reply to Ayres and Talley, 105 Yale L.J. 221,232-33 (1995) (analyzing property rules versus liability rules);
177. Alan Schwartz, The Case for Specific Performance, 89 Yale L.J. 271, 271 (1979) (explaining why specific performance is preferable to liability remedies in contract).
178. Government actors, of course, have access to common law rules too. The government can own property, make contracts, and sue or be sued for tortious behavior. The common law does not serve the same accountability function with regard to government actors, however, because they may not personally appropriate the gains of, nor- with only a few exceptions-will they personally have to suffer the harms their decisions generate. The exceptions arise in the context of §1983 litigation, and as a practical matter they arise infrequently even there.
179. Cf. John C. Jeffries, Jr., The RightRemedy Gap in Constitutional Law, 109 Yale L.J. 87, 92 (1999) (noting that "states and localities routinely defend their employees" in civil rights litigation and "indemnify them against adverse judgments"). At least one state action critic has acknowledged that the incentives created by the market are an important engine of economic productivity. Sunstein, supra note 25, at 266 ("In general, a market system ... promotes both liberty and prosperity -").
180. But cf. Tushnet, supra note 43, at 178,
181. which suggests that "[t]he exit option for those who object does not distinguish private actors from government ones" because "people can 'vote with their feet' to avoid harms inflicted by local and even state governments, and ... the threat of such exit constrains governments from acting oppressively." Perhaps, indeed, the exit option works to constrain state and local governments from acting oppressively, but it surely cannot be thought to act as an effective constraint on oppressive federal action.
182. Stephen Williams, The More Law, the Less Rule of Law, 2 The Green Bag 2d 403, 404-05 (1999). Note what the sentence in the text does not claim. It does not claim that "they will suppress their tendencies to shirk or
183. See, e.g., Tax Reduction Act of 1975, Pub. L. No. 94-12, 89 Stat. 26 (codified as amended at I.R.C. §32 (2006)) (creating the Earned Income Tax Credit);
184. Endangered Species Act of 1973, Pub. L. No. 93-205,87 Stat. 884 (codified as amended at 16 U.S.C. §§ 1531-1544 (2006))
185. Consumer Product Safety Act, Pub. L. No. 92-573, §11(c), 86 Stat. 1207 (1972) (codified as amended at 15 U.S.C. §§2051-2085 (2006));
186. Federal Water Pollution Control Act Amendments of 1972, Pub. L. No. 92-500,86 Stat. 816 (codified as amended at 33 U.S.C. §1251 et seq. (2006));
187. Occupational Safety and Health Act of 1970, Pub. L. No. 91-596, §6(0,84 Stat. 1590 (codified as amended at 5 U.S.C. § 7902 (2006));
188. National Environmental Policy Act of 1969 ("NEPA"), Pub. L. No. 91190,83 Stat. 852 (codified as amended at 42 U.S.C. §§4321-4370f (2006));
189. Health Insurance for the Aged Act ("Medicare"), Pub. L. No. 89-97, §101, 79 Stat. 290, 290 (1965) (codified at 42 U.S.C. §§1395-1395hhh (2006));
190. Social Security Amendments of 1965 ("Medicaid"), Pub.L. No. 89-97, §121,79 Stat. 290,343 (1965) (codified at 42 US.C. §§1396-1396V (2006));
191. Civil Rights Act of 1964, Pub. L. No. 88-352,78 Stat. 241 (1964) (codified as amended at 42 U.S.C. §2000a-2000h (2006)).
192. Indeed, to the extent that constitutional impediments thwart redistributional efforts, their source has not been the state action doctrine. See text accompanying supra note 73.
193. If the conduct is forbidden, then its non-performance by a private actor will be treated as state action. 89 Nor does it rest on the claim that the government is not in some moral sense responsible for any action it could have prohibited but did not. The question is whether the government is to be legally responsible, and if so how.
194. An acute discussion of the important difference between government mandates and permissions in the context of the state action problem appears in Larry Alexander & Paul Horton, Whom Does the Constitution Command? A Conceptual Analysis with Practical Implications 73-79 (1988).
195. See Seidman & Tushnet, supra note 27, at 66 ("A central element of the New Deal revolution was the systematic dismantling of the public-private distinction.... The Court came to understand that inaction was a kind of action: The government was always confronted with the option of reallocating burdens and benefits or leaving them undisturbed.").
196. Their view may be driven by an extreme form of rule-skepticism, according to which it is impossible actually to follow a rule as such. Whenever a rule is applied, Seidman and Tushnet seem to think, the fact that the government official applying it could do otherwise means that every time the official is choosing (or rejecting) the action supported by the rule. But when the official's reason for following the rule is the rule's existence, and not the result it produces, then the official is choosing to follow the rule, but not in an important sense, choosing to produce the result. Seidman and Tushnet may think that individual and not collective choice is possible only in some magical realm in which the government is constrained from outside. For example, in indicating that constitutional rights create such a realm, they neglect that they too are made by a political process. We do not believe in magic, but we do believe in rules.
197. See Tushnet, supra note 43, at 189-94.
198. See, e.g., Sunstein, supra note 25, at 268-69 ("[C]ommon law rules are themselves subject to constitutional objection if and when such rules 'abridge the freedom of speech' by preventing people from speaking at certain times and in certain places.");
199. see also Tushnet, supra note 43, at 168-72;
200. Peller & Tushnet, supra note 4, at 789-91.
201. Sunstein, supra note 25, at 294.
202. See supra notes 43-45.
203. As we understand it, the state action principle is a necessary but not sufficient condition for this result: were it negated, then norms of liberty and equality would have distributional implications, but other changes in constitutional law could also produce that effect. In particular, sufficiently strong effects tests for the liberty and equality norms would also cause them to have strong distributional consequences. The rejection of effects tests is thus another necessary condition for the current structure regarding the distributional implications of liberty and equality norms, and negating it also would be sufficient to overturn that structure.
204. They think that the state action principle must rest on an endorsement of the distributional principles themselves; we think that it is justified by the judgment that those principles, whatever they are, should not be attributed to the Constitution.
205. 326 U.S. 501 (1946).
206. Id. at 503-04.
207. Id. at 508.
208. Another way of characterizing the holding in Marsh is to regard it as an example of the "public function" test. On this view, the Court attributed the private owner's decision to the state because the company-owned town was performing an exclusively public function, inasmuch as "the town of Chickasaw [did] not function differently from any other town."
209. Id. at 508.
210. See, e.g., Texas v. Johnson, 491 U.S. 397,412 (1989)
211. (stating that viewpoint-based regulation of expressive conduct based on the conduct's communicative content is subject to "the most exacting scrutiny" (quoting Boos v. Barry, 485 U.S. 312, 321 (1988))).
212. Sunstein, supra note 25, at 294.
213. The cases concerning administration of public resources for purposes of expression can present administrators with difficult problems, for example whether by providing access to a forum that is not actually a place will run afoul of the antiestablishment principle. See Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 830, 843-44 (1995) (finding that funding program supporting university student groups is a public forum in a metaphysical sense and that support for the publication of a religiously oriented student magazine did not violate Establishment Clause principles).
214. As the analysis of the economics of theft and theft prevention shows, people who are in possession of property often have strong incentives to take steps, such as physical theft-prevention measures, that make the property less appealing to potential takers.
215. See, e.g., Henry E. Smith, Property and Property Rules, 79 N.Y.U. L. Rev. 1719, 1785-88 (2004)
216. (discussing investment in anti-theft measures). Faced with a more limited but still unwelcome use of their property required by the Constitution, owners would have similar incentives to make it unattractive for that use.
217. Two leading academics have presented a quite detailed proposal along these lines in the closely related area of political contribution and expenditure. Bruce Ackerman & Ian Ayres, Voting With Dollars: A New Paradigm for Campaign Finance 66-92 (2002) (proposing that citizens be given "Patriot dollars," usable only as campaign contributions, so that everyone would have some ability to determine the resources available for political campaigns (and, in their plan, the same ability as everyone else, as Patriot dollars would be the exclusive source of campaign funding)).
218. Another more practical problem with speech stamps would be guaranteeing that speech buyers could find an adequate supply of speech sellers. The problem of finding willing sellers does not plague the food stamp program because there is a vigorous, well-established, and impersonal market of food buyers.
219. 418 U.S. 241 (1974).
220. Id. at 258.
221. 334 U.S. 1,1 (1948).
222. The line drawn by the state action principle can be seen in the history of the first federal ban on state race discrimination, the Civil Rights Act of 1866. The act provided that all citizens "of every race and color" were to have the same rights "to make and enforce contracts" and "to inherit, purchase, lease, sell, hold, and convey real and personal property" as was enjoyed by white citizens.
223. Civil Rights Act of 1866, ch. 31, § 1,14 Stat. 27 (1866) (its current statutory descendants are 42 U.S.C. §§1981-1982 (2006)).
224. In Runyon v. McCrary, 427 U.S. 160, 167 (1976),
225. and Jones v. Alfred H. Mayer Co., 392 U.S. 409, 412-13 (1968),
226. the question before the Court was whether those statutory descendants forbade discrimination by private people as well as requiring that the laws of property and contract themselves not discriminate on the basis of race. That they did the latter, and therefore required that the private law itself be racially neutral, was common ground between the majority in both cases, which found that the statutes applied to private conduct, and the dissenters, who maintained that they did not. The state action principle was central to those cases, because the Court found that the statutes, and the Civil Rights Act from which they derived, were founded on the Thirteenth Amendment, which does not have a state action requirement, and not (or not only) the Fourteenth Amendment, which does.
227. Runyon, 427 U.S. at 179;
228. Jones, 392 U.S. at 438-39.
229. The Court in Jones stressed that the statute at issue in that case, 42 U.S.C. §1982, rested on the Thirteenth Amendment, which enables Congress to act directly on private parties.
230. Jones, 392 U.S. at 438-39.
231. Justice White, dissenting in Runyon, maintained that the statute at issue in that case, 42 U.S.C. §1981, rested only on the Fourteenth Amendment, which applies only to state action, and that the statute therefore could not apply to private people.
232. Runyon, 427 U.S. at 205-11 (White, J., dissenting).
233. Because §1982 was based only on the Fourteenth Amendment, he said, it was limited to requiring that '"all persons'... be treated 'the same' or 'equally' under the law and was not designed to require equal treatment at the hands of private individuals."
234. Id. at 202.
235. The debates on the Fourteenth Amendment and the Civil Rights Act of 1866, which it was designed to constitutionalize, were overwhelmingly cast in terms of equality of legal rights.
236. See, e.g., William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine 114-17 (1988) (noting that Republican proponents of the Fourteenth Amendment stressed that it was limited to requiring equality of legal rights and did not give Congress general legislative authority).
237. Racial classifications are subject to strict scrutiny. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701,720 (2007)
238. ("It is well established that when the government distributes burdens or benefits on the basis of individual racial classifications, that action is reviewed under strict scrutiny."). The level of scrutiny for discrimination based on sex is different and at least somewhat less demanding.
239. United States v. Virginia, 518 U.S. 515, 532 & n.6 (1996) (stating that race and sex classifications are not equated for all purposes and the most stringent scrutiny is reserved for classifications based on race and national origin).
240. Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (1964)
241. (codified as amended at 42 U.S.C. §2000e (2006)). Title VII subjects both race- and sex-based classification to its general ban on discrimination in employment, 42 U.S.C. §2000e2(a) (2006), but provides an exception when sex (along with national origin and religion), but not race, is a bona fide occupational qualification for a job, 42 U.S.C. § 2000e-2(e) (2006).
242. 42 U.S.C. §2000a (2006) (forbidding race discrimination in places of public accommodation).
243. A similar argument can be made with respect to constitutionally protected liberty, like freedom of expression. An individual who lacks the resources to engage in some act of expression could be subsidized by the government, so the decision not to provide that subsidy can reasonably be described as that of the government. We will use constitutional anti-discrimination principles for purposes of illustration, but the argument we will develop applies similarly to constitutional liberty.
244. An early and influential discussion of the possibility that the Equal Protection Clause in effect requires the states to forbid race discrimination to some extent, despite the state action principle, is Kenneth L. Karst & Harold W. Horowitz, Reitman v. Mulkey: A Telophase of Substantive Equal Protection, 1967 Sup. Ct. Rev. 39,65-78 (1967).
245. According to the Supreme Court, the Equal Protection Clause and the equal protection component of the Fifth Amendment restrict intentional discrimination, including of course discrimination that appears on the face of a legal rule, but do not generally forbid actions that have effects that are disparate with respect to race or some other suspect ground of classification. Washington v. Davis, 426 U.S. 229,239 (1976). Constitutional effects tests would broaden the scope of arguments that government inaction is impermissible, but such arguments are possible even when only intentional discrimination is forbidden.
246. For an in-depth exploration of the expansive possibilities of the rule forbidding discriminatory intent, see David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935,983-90 (1989).
247. Strauss discusses these possibilities, not by way of endorsing them as applications of the discriminatory intent principle, but by way of showing that the principle is not a normatively plausible interpretation of equal protection. Id. He might well endorse a reading of the equal protection principle that requires major changes in non-constitutional law, but would not reach those results by reasoning from a ban on discriminatory intent.
248. Legal Servs. Corp. v. Velazquez, 531 U.S. 533, 548-49 (2001)
249. (holding that the restriction on the arguments that could be made by Legal Services Corporation attorneys violates the First Amendment). As Velazquez demonstrates, the application of constitutional protections of liberty to programs of public benefit can present conundrums. Some cases presenting such issues, especially the abortion-funding cases, may seem to rest on an undefended distinction between common law rights and rights under programs of public assistance. Confronted on restrictions on Medicaid funding for abortion, the Court found that the government could seek to influence women's choices between abortion and childbirth by offering and withholding means-tested medical benefits, even where it could not seek to influence that choice through the criminal law.
250. Harris v. McRae, 448 U.S. 297, 315-17 (1980);
251. Maher v. Roe, 432 U.S. 464,474 (1977).
252. While it is possible that some of the Justices who participated in those cases did have unanalyzed assumptions that treated public assistance less favorably than common law property, the difficulty the Court faced came from an aspect of its right of privacy doctrine. That doctrine permits the government to establish some inducements, but only some, in favor of childbirth over abortion.
253. Harris, 448 U.S. at 314-17
254. (finding that the right of privacy permits states and Congress to make a value judgment in favor of childbirth over abortion). With that assumption in place, the courts must find some way to identify inducements that are unacceptably strong. Drawing the line so that the criminal law defines what is too strong may or may not be correct, but it is one plausible way to resolve the difficulty built into the substantive doctrine.
255. Strauss discusses these difficulties in his argument against the discriminatory intent standard. Strauss, supra note 120, at 975-83.
256. 10 U.S. 87 (1810).
257. Id. at 88-90.
258. Id. at 136-39.
259. 527 U.S. 627,647-48 (1999).
260. 480 U.S. 678,680-82 (1987).
261. 462 U.S. 919, 958-59 (1983).
262. Alaska Airlines, 480 U.S. at 697.
263. "Congress could not have intended a constitutionally flawed provision to be severed from the remainder of the statute if the balance of the legislation is incapable of functioning independently." Id. at 684 (citation omitted). In conducting the severability inquiry, the judiciary must avoid "legislative work beyond the power and function of the court."
264. Hill v. Wallace, 259 U.S. 44,70 (1922).