In each of these examples, law functions in two very different ways[53]. When its operation is direct, it tells individuals how to behave and threatens punishment if they deviate from that behavior. When its operation is indirect, it modifies one of the other structures of constraint[54]. The regulator selects from among these various techniques according to the return from each — both in efficiency and in the values that each might express.
When we see regulation in this more general way, we can see more clearly how the unregulability of cyberspace is contingent. We get a stronger sense of how the state could intervene to make regulation work, and we should also get a sense of the increased dangers presented by this more expansive sense of regulation. In particular, we should have a stronger sense of the danger it presents to constitutional values. The next section considers one such threat.
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. Someone needed to take and store nuclear waste.[55] 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.
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[56].
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.[57]) 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.[58]”
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, and the patient would most likely believe the doctor was 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.
Just as it tried to use the authority of the states to effect its ends in New York, the government trades on a misrepresentation in Rust. But worse than in the federalism context, the victim of the misrepresentation here does not even realize that the misrepresentation is a policy choice. The patient is unlikely to hear the doctor’s statement as a political broadcast from the government; she is most likely to hear it as a medical opinion. Not only is there a confusion about who is responsible for the opinion expressed, but there is also confusion about whether it is an opinion at all.
Rust v. Sullivan is one of the great embarrassments of the Supreme Court — the case proving Justice Scalia’s rule that any issue gets distorted once it gets near the question of abortion[59]. But my argument here doesn’t depend upon whether Rust was right. My aim is to bring out a certain sensibility about regulation; Rust simply points the way.
Consider a third case. Until 1948 deeds could include covenants (promises) that the property covered by the deed could not be sold to people of a particular race. The purpose of these provisions was clear: to effect and preserve segregation. Their use was extensive. It was estimated, for example, that when Shelley v Kraemer[60] struck these provisions down as unconstitutional under the equal protection clause, 25 percent of the properties in south Chicago had been prohibited from sale to African Americans[61].
As awful as such provisions were, they had a certain integrity. They clearly stated their purpose and were transparent about the values they affirmed. No one could pretend that the segregation they effected was somehow an accidental by-product of decisions made elsewhere. Although they were private covenants, they were enforced by the state and, indeed, derived their meaning from the state. They said: This society is racist.
When the Court struck these provisions down, however, the question became what would replace them. Few expected that the attitudes behind these covenants would suddenly disappear because of a single court judgment. So when the Court ended direct segregation, we should expect indirect segregation to emerge to replace it.
