STATE ACTION AND THE CONSTITUTION'S MIDDLE BAND.

• Author: Seidman, Louis Michael

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there is too much state action for the Constitution to apply. The Constitution takes hold only in a middle band--the Goldilocks band--sandwiched between these two domains. For constitutional limitations to have force, the government must act just enough--but not too much.

This Article's first aim is to identify and describe this puzzling structure. It also examines a variety of doctrinal principles that produce and, perhaps, justify the state action doctrine's three bands. The Article then argues that these seemingly disparate principles are all related to the special constitutional problems produced by the emergence of the middle band of government regulation. Finally, the Article concludes with some brief speculation about whether the modern tripartite structure can survive.

TABLE OF CONTENTS INTRODUCTION I. THE CONVENTIONAL DOCTRINE AND ITS PROBLEMS A. The Implausibility of the Conventional Approach B. The Source of the Problem C. The Middle Band Emerges II. THE CASES, THE DOCTRINE, AND THE MIDDLE BAND A. Federalism Limitations B. Separation of Powers C. The First Amendment D. Criminal Procedure E. The Fourteenth Amendment III. EXPLANATIONS AND JUSTIFICATIONS: DISAGGREGATION A. Textual Explanations B. General Constitutional Theories IV. EXPLANATIONS AND JUSTIFICATIONS: REINTEGRATION A. Arguments from the Number of Examples B. Arguments from the Mixing of Public and Private CONCLUSION INTRODUCTION

According to conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints. (1) These accounts are linked to the conventional view about the primary purpose served by constitutional law. On this view, the Constitution's main function is to limit government power in order to protect individual freedom. As Robert McCloskey once wrote: "[T]he essential business of the Supreme Court is to say 'no' to government." (2)

The state action doctrine serves this purpose by providing constitutional protections where they are needed most. The doctrine prevents judicial en forcement of the Constitution from itself serving as an excuse for government intervention. (3) As Justice Byron White argued,

Careful adherence to the "state action" requirement preserves an area of individual freedom by limiting the reach of federal law and federal judicial power.... A major consequence is to require the courts to respect the limits of their own power as directed against state governments and private interests. (4) In short, the state action doctrine embodies the principle that government action--rather than action taken by private individuals--triggers constitutional limitations.

Many critics of the state action doctrine have attacked its coherence and normative attractiveness. (5) They have disputed the connection between the doctrine and individual freedom by pointing out that the absence of constitutional protections in effect authorizes private coercion. (6) Moreover, they insist that the government is always implicated in that coercion. In particular, they assert that the state action doctrine systematically ignores background, structural state action like common law tort, property, and contract rules that shape, limit, and legitimate private conduct. (7) That observation, in turn, has led some commentators to conclude that there is no real "state action" doctrine. Instead of asking whether there is "state action," these commentators argue that courts should focus on the state conduct that is always present and determine whether that conduct violates substantive constitutional norms. (8)

After several generations of contestation, these positions are now well understood. The argument has gone stale. Remarkably, though, no one has noticed that both sides misstate the fundamental structure of state action law.

The state action doctrine is not dichotomous at all. It has a tripartite structure that delineates three, rather than two, domains. First, there is a private, inner band where there is insufficient government action to trigger constitutional constraints. Second, there is a public, outer band where there is too much state action for the Constitution to apply. Third, there is a middle band--a Goldilocks band--where the level of government action is just right, and the Constitution takes hold. For constitutional limitations to have force, the government must act just enough--but not too much.

Two recent Supreme Court cases illustrate this basic structure. First, in Walker v. Texas Division, Sons of Confederate Veterans, Inc., (9) the Sons of Confederate Veterans, Texas Division sought an injunction requiring the state to provide specialty license plates featuring a Confederate battle flag. The license plates were similar to other plates that the state had issued and that supported controversial causes, but state officials denied this request. (10) The organization sued, claiming that the denial constituted content discrimination that violated the free speech guarantee of the First Amendment. (11)

Writing for the Court, Justice Breyer detailed the extensive history of state involvement in the design and issuance of license plates. (12) Texas plate designs were "often closely identified in the public mind with the [state]." (13) As a legal matter, Texas owned the designs. (14) The state "maintain[ed] direct control over the messages conveyed on its specialty plates." (15)

Consideration of factors like these is standard fare in state action cases, the outcome of which often rests on "the peculiar facts or circumstances present." (16) A history of state involvement, (17) public identification of the activity with the state, (18) and state ownership (19) and control (20) are all factors that the Court has used to indicate the presence of enough state action to invoke constitutional scrutiny. For example, in Burton v. Wilmington Parking Authority, the Court relied on facts like these to hold that the state was implicated in the discriminatory conduct of a private restaurant leasing space in a public garage. (21)

Remarkably, though, the Walker Court thought that these factors cut the other way. Instead of demonstrating the extensive state involvement that triggered constitutional protections, these factors demonstrated that the involvement was too extensive, thereby entitling the state to constitutional immunity. (22) Taken together, the factors showed that the design on license plates was "government speech," which, in the Court's view, was checked by "the democratic electoral process" rather than by the Constitution. (23) Because state involvement was so pervasive, the Free Speech Clause lost its force. If the government had been less involved in license plate design and messaging, the speech might have been private and the Sons of Confederate Veterans might have had a constitutional right to the plate they desired. (24)

The point is driven home by comparing Walker with Matal v. Tarn. (25) In Matal, the respondent argued that a section of the Lanham Act that prohibited the registration of trademarks that "disparage ... or bring ... into contemp[t] or disrepute" any "persons, living or dead" violated the Free Speech Clause. (26) The Court distinguished Walker and held that registration did not constitute government speech. (27) The Court reached this conclusion because:

The Federal Government does not dream up these marks, and it does not edit marks submitted for registration. Except as required by the statute involved here ... an examiner may not reject a mark based on the viewpoint that it appears to express. Thus, unless that section is thought to apply, an examiner does not inquire whether any viewpoint conveyed by a mark is consistent with Government policy or whether any such viewpoint is consistent with that expressed by other marks already on the principal register. (28) Because the government's involvement was not sufficient to trigger the government speech doctrine, the First Amendment took hold and made the statute invalid. If the government had asserted more control over the marks, by "dream[ing] [them] up," editing them, or "reject[ing] [them] based on the viewpoint that [they appear] to express," (29) they might have counted as government speech, and the statute would have been less vulnerable to constitutional attack.

A similar dynamic is at work in a much more famous dispute involving the constitutionality of the Affordable Care Act (ACA). (30) In National Federation of Independent Business v. Sebelius, the plaintiffs successfully argued that the ACA's "individual mandate," requiring certain individuals to purchase insurance, exceeded Congress's Commerce Clause powers. (31) Their argument rested on the common sense notion that the "commerce" referred to in Article I does not include the failure to engage in commerce by refusing to purchase insurance. (32) As Chief Justice Roberts put it, "The power to regulate commerce presupposes the existence of commercial activity to be regulated.... The language of the Constitution reflects the natural understanding that the power to...