The Problems of Indirection

In 1985, after years of inaction, Congress passed the Low Level Radioactive Waste Policy Amendments Act to deal with the problem of nuclear waste.¹ Someone needed to take and store nuclear waste. After sufficient prodding by the government, a number of states formed a compact, which Congress then ratified, implementing a number of requirements and incentives for states to deal with the nuclear waste they produce.

The details of the overall plan are not important here. It is enough to focus on just one part. To induce states to follow federal guidelines for regulating nuclear waste, Congress gave them a choice: either enact certain regulations or “take title” to the spent nuclear fuel. This was a “your money or your life” regulation, for the fuel to which the states would take title was not an asset but a great liability. In a very heavy-handed way, Congress was essentially forcing states to pass the regulations it wanted.

The Supreme Court struck down this part of the law. In effect, the Court held, Congress was commandeering the state legislatures to enact Congress’s law. Congress itself, of course, had the power to enact those regulations directly. But it did not have the power to order states to enact laws. Indirection here was not allowed.

This case—New York v United States—does not stand for the broad principle that government must regulate only directly, or even for the principle that indirect regulation generally is disfavored. The case was focused quite narrowly on the question of indirection as it involved the states. The most New York stands for is the idea that states, as independent sovereigns deserving of special constitutional respect, cannot be co-opted to the federal government’s ends—that when the federal government has a program it wants to carry out, it must put its own name behind it.

But while New York doesn’t establish a general constitutional principle, it does suggest why indirection should be a more general concern. And this general concern is my focus here.

Indirection misdirects responsibility. When a government uses other structures of constraint to effect a constraint it could impose directly, it muddies the responsibility for that constraint and so undermines political accountability. If transparency is a value in constitutional government, indirection is its enemy. It confuses responsibility and hence confuses politics.

Such misunderstandings are possible in other contexts as well. Think again about the case of Rust. The federal government helps to fund family planning clinics. (“Helps” fund, not completely funds.)² Before 1988 these clinics gave advice on a wide range of birth-related topics, including abortion. Doctors in family planning clinics would advise their patients about abortion whenever they felt such advice was proper.

The Reagan administration wanted to change that. So it ordered (the details of how are not important here) doctors in those clinics to not discuss abortion as a method of family planning with their patients. If asked, the doctors were to say, “The project does not consider abortion an appropriate method of family planning.”³

The aim of this regulation was clear: to reduce the incidence of abortion. It did this by using doctors to steer patients away from abortion. A doctor has a great deal of power over a patient in a context like this; the patient would most likely understand the doctor to be recommending against abortion.

But notice the technique. The federal government could have stated its own position about abortion. It could have put up posters and billboards saying that abortion is wrong, or it could have used space in its clinics to advertise its view. But it chose instead to bury its policy choice in the words of doctors. It thereby could trade on the professional authority of the doctors to advance its own ends. It could regulate abortion indirectly by regulating the doctors directly.

Footnotes

¹ See New York v United States, 505 US 144 (1992). Edit Delete

² Aida Torres, “The Effects of Federal Funding Cuts on Family Planning Services, 1980–1983,” Family Planning Perspectives 16 (1984): 134, 135, 136. Edit Delete

³ Rust v Sullivan, USNY (1990) WL 505726, reply brief, *7: “The doctor cannot explain the medical safety of the procedure, its legal availability, or its pressing importance to the patient’s health.” Edit Delete