(A) Constitutional Issues, Federalism, Federal Agencies and Administrative Law

By Philip Hamburger – Today’s problem is the suppression of dissent. …Most worrisome is federal and state encouragement for private entities to discriminate against Americans with dissenting views. …The funding justification for regulation increasingly reaches not only subsidized programs but entire institutions. And almost every major institution receives federal funding. So the potential for privatized government discrimination is nearly unlimited. In education, conditions on funding interfere with academic speech and the freedom of private institutions….The first step in a constitutionally more modest approach would be to recognize that government power shouldn’t be exercised in ways that discriminate. On this basis, a new civil-rights act could bar discrimination in the exercise of government power. At the governmental level, this would prohibit viewpoint discrimination by federal and state officials and make their discrimination subject to suits for damages without qualified immunity….The bar against discriminatory exercises of government power would also reach private bodies to the extent they exercise the power of government. Just because government power is privatized doesn’t mean it should escape the ordinary limits on such power. So when institutional review boards, Title IX committees, bar associations or other professional organizations exercise delegated legislative or judicial power, they should be vulnerable to pay damages for their viewpoint discrimination. Read More