Can the Consent of Individuals or States Enlarge Federal Power?

Philip Hamburger has posted on SSRN the proofs of his article, “Unconstitutional Conditions: The Irrelevance of Consent,” which will be published soon by the Virginia Law Review.
Although the article does not address the current healthcare litigation, I want to draw attention to it, because its thesis is relevant to a question posed by the Supreme Court: whether the healthcare legislation unconstitutionally commandeers the states.
Hamburger argues that private or state consent cannot relieve the federal government of the limits imposed on it by the Constitution’s structures or rights. He notes out that these structures and rights are legal limits–indeed, are legal limits imposed by the people–and that the federal government therefore cannot escape them simply by getting the consent of any sub-group, whether individuals, institutions, or states. As he points out, “Private or state consent cannot enlarge federal power.” (Page 185.)
This point may seem counter-intuitive as to rights because it is assumed that rights belong to individuals, who therefore should be able to relinquish them. Hamburger explains, however, that the vision of tradeable rights fails to recognize that constitutional rights are not personal property rights, but are legal limits on government. This, in turn, leads to the distinction between leaving a constitutional right unexercised and empowering government.
An individual or state can decline to exercise a right, but it cannot empower the federal government to do what the Constitution forbids.
Similarly, when it comes to the Constitution’s structural limits on the federal government, they remain in place, regardless of individual or state consent.  Thus, this is where the argument matters for the healthcare litigation. The anti-commandeering principle has thus far been understood as a constitutional limit on the federal government, arising from the federal structure of the Constitution. Accordingly, under Hamburger’s analysis, though it could be adjusted with the consent of the people, the federal structure cannot be put aside merely with the consent of the states. Once again, private or state consent cannot relieve the federal government of the limits that confine its power.
Of course, force is an element of some constitutional violations, most clearly in violations of rights. Hamburger shows, however, that even where there is consent to a condition, there still can be constitutionally significant force–either in the inducement of the consent or in the implementation of the condition.
In short, this article’s simple insight–that private and state consent cannot relieve the government of its constitutional limits–should matter for the commandeering arguments in the healthcare litigation.
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