Offers, Threats, and Unconstitutional Conditions

In this Article, Professor Simons suggests that the hoary threat/offer distinction helps explain and justify the continued survival of the unconstitutional conditions doctrine, but only a narrow version of that doctrine. At the same time, the threat/offer distinction also helps explain and justify the continued survival of a narrow version of the "greater includes the lesser" argument. The author provides a careful analysis of what constitutes a "threat" and an "offer" and suggests that in its pure form, it is morally and constitutionally significant. A "threat" is a government proposal to make the citizen worse off than she would otherwise be if she refuses to accept an objectionable condition, while an "offer" is a proposal to make her better off than she would otherwise be if she accepts the condition.

The distinction between the two helps fix the proper level of judicial scrutiny for conditions upon government benefits that implicate constitutional rights. In conclusion, a pure threat should be scrutinized as strictly as a direct and unconditional penalty upon a right, while a pure offer should receive lesser scrutiny.