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Happy (Un)constitution(al) Day—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newyorktimes.com on September 19, 2012.

Happy (Un)constitution(al) Day
By Linda Greenhouse ’78 MSL

If you regularly hang out around schools or colleges, you might have noticed that this is, by presidential proclamation, Constitution Week, and that Monday was Constitution Day.

At least you might have noticed something special about Monday. That's because back in 2004, Senator Robert Byrd, the late Constitution-toting and -quoting Democrat from West Virginia, got an amendment added to the federal law that designates Sept. 17, the day in 1787 when the delegates in Philadelphia signed the Constitution, as Constitution Day. The Byrd amendment requires that "each educational institution that receives federal funds for a fiscal year shall hold an educational program on the United States Constitution on Sept. 17 of such year for the students served by the educational institution." (If Sept. 17 falls on a weekend or, as it did this year, on a religious holiday, the law permits holding the Constitutional Day observance during the preceding or following week.)

The Department of Education's follow-up regulation warns that the amendment "applies to all educational institutions receiving federal funding, not only those receiving federal funding from the Department." In other words, a grant from the National Institutes of Health or the National Endowment for the Humanities also carries the obligation to observe Constitution Day - and all such grants are implicitly at risk of being forfeited by any school, college or university that chooses to spend its Sept. 17 doing something else.

So here's my question: has the Supreme Court's recent decision in the Affordable Care Act case made Constitution Day unconstitutional?

While upholding the health care law's individual mandate, the court invalidated the statute's carrot-and-stick approach to inducing the states to extend Medicaid eligibility to millions of the near-poor. As with Constitution Day, Congress enacted the Medicaid portion of the Affordable Care Act under its "Spending Clause" authority, the power granted Congress by Article I to "pay the debts and provide for the common defense and general welfare of the United States." Federal largesse often comes with strings attached: take it or leave it.

In the Affordable Care Act, the Congressional offer to the states was this: Agree to expand the categories of people whose medical expenses are covered by the federal-state Medicaid program, and the federal government will pay almost all the additional cost. Decline to expand, and risk losing all your existing federal Medicaid money (more than 20 percent of the average state's entire budget.) "It is a gun to the head," Chief Justice John G. Roberts Jr. declared in his opinion. "Congress may use its spending power to create incentives for states to act in accordance with federal policies," the chief justice wrote. "But when pressure turns into compulsion, the legislation runs contrary to our system of federalism." The vote was 7 to 2.

What does this have to do with Constitution Day? In contrast to the Affordable Care Act, the threat of forfeited funds is only implicit and the Byrd amendment lacks an enforcement mechanism for its implied threat. And the potential consequences appear less dire, too. After all, would the government really zero out a major university's federally supported research budget for lack of a Constitution Day program?

Probably not - but, on the other hand, it's also far from clear that the Secretary of Health and Human Services would have actually have tried to recoup the entire federal portion of a recalcitrant state's Medicaid budget. Such a drastic action would have been subject to challenge as "arbitrary and capricious" under the Administrative Procedure Act, leading to perhaps years of litigation. If the penalty provision was "a gun to the head," it's not at all certain that anyone would actually have pulled the trigger.

Consequently, the Medicaid portion of the health care decision seems at least premature, if not gratuitous. It's a mystery why it drew the support of two members of the court's liberal bloc, Justices Stephen G. Breyer and Elena Kagan. Possibly they were providing cover, or at least moral support, to the chief justice on his unsteady journey in the health care case away from his usual allies and out of his comfort zone.

Possibly Justice Kagan harbors a dislike of heavy-handed Spending Clause bargains stemming from her days as dean of Harvard Law School. Along with many other law schools, Harvard supported a suit against the Defense Department over the Solomon Amendment, a law that threatened to withhold federal money from an entire university if any part of the university, such as a law school, failed to provide equal access to military recruiters. In 2006, the Supreme Court rejected the challenge in an 8-0 opinion by Chief Justice Roberts. Quoting the court's language from an earlier Spending Clause case, the chief justice said, "Congress is free to attach reasonable and unambiguous conditions to federal financial assistance that educational institutions are not obligated to accept."

The fact is no one really knows what the impact of the court's new turn on the Spending Clause will be. The Affordable Care Act decision marked the first time the Supreme Court had ever invalidated any law enacted under the Congressional spending power. Justice Ruth Bader Ginsburg, in dissent, called the decision all the more "unsettling" because the case for constitutionality appeared, to her and Justice Sonia Sotomayor, so simple. What, exactly, was the problem with the bargain Congress attempted to strike with the states? Did it simply go too far and threaten too much? If so, when considering the next case, how far would be too far? How close a connection must there be between the desired behavior - honor the Constitution - and the threat - lose your federal money?

Or perhaps the court is telling us that a more fundamental reappraisal is in progress, a turn away from the modern assumption that Congress can pretty much attach any string, as long as the condition itself is not unconstitutional? Certainly the current court has placed Congressional authority under an unfriendly microscope: there were, after all, five votes to strike down the health care law on Commerce Clause grounds. In any event, the court's Spending Clause jurisprudence, once perfectly clear, is now a muddle.

Before the Spending Clause issue arose, Constitution Day came under occasional academic fire for free-speech-related reasons - compelled patriotism in violation of academic freedom, Professor Kent Greenfield of Boston College Law School argued in an Op-Ed essay in The Times a year ago. But First Amendment complaints have never gained traction, because a requirement to observe Constitution Day is far from a requirement to say anything in particular.

An Internet search shows that schools' programming includes everything from a public reading of the Constitution to a classroom debate over the constitutionality of the Byrd amendment itself. Some programs seem perfunctory, and others quite creative, like Purdue University's inclusion of banned and censored books as part of a display intended to get students thinking about the First Amendment. There is a wealth of teaching material online that classroom teachers can use to impart some basic civics to their students, not a bad thing now that civics education has withered. One day a year of civics is surely better than none. (The iCivics Web site, founded by the retired Justice Sandra Day O'Connor as part of her effort to reintroduce civics education into the curriculum, has a particularly robust set of offerings for younger children.)

My friend Sanford Levinson, a law professor at the University of Texas, is well known for his love-hate relationship to the Constitution, which has led him to write such books as "Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It)." I asked Sandy for his thoughts about Constitution Day. He said that when he is asked to speak at a Sept. 17 observance, he starts by raising the question of the Byrd amendment's constitutionality. He then goes on to say that he would be troubled "if schools were required truly to celebrate the Constitution." But, he tells his audience, "my own presence testifies to the possibility that it is enough to discuss it, albeit critically."