Governments can often accomplish indirectly what courts forbid them from doing directly

Evidence

Even the Constitution’s core rights-granting provisions are subject to workarounds. For example, although abortion cannot be banned directly, the procedure can be put out of reach through the imposition of multiple confining regulations known as TRAPs (targeted regulation of abortion providers). More generally, notwithstanding the unconstitutional conditions doctrine, governments are often permitted to accomplish indirectly what they are forbidden from doing directly by using the incentive of conditional funding. In the statutory context, campaign finance law’s susceptibility to workarounds is well known and well captured by the metaphor of “hydraulics.” When the law closes one channel for political spending, political actors simply open up substitute channels. Similarly, state and local actors can often find ways to avoid the preemptive effect of federal statutes. For example, although federal law preempts essentially all state and local regulation of union organizing, states and cities have averted this bar through creative partnerships with unions and employers. Similar possibilities for working around environmental, ERISA, and immigration preemption are also available. Thus, functional entrenchment is another reminder that political actors can often navigate around public law rules, and that public law often serves to channel means rather than dictate ends. — Daryl Levinson and Benjamin I. Sachs, Political Entrenchment and Public Law, 530

Categorization

• XREF: Connects directly to the reader’s institutional-persistence question: workarounds (hydraulics) explain why entrenched ideology gets channeled rather than spent — relevant to path dependence literature and Levinson’s functional entrenchment thesis. — connects to: Public officials with state power can defy the law with near-impunity by prolonging litigation. — Robert A. Caro, The Power Broker: Robert Moses and the…, 969; Constitutional adjudication can achieve total prohibition where legislation cannot — , The Rod and the Child: A Global History…, 10912; Government contracts can control private conduct by inducement rather than regulation — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 837 (+1 more)
• DEFINE: Defines functional entrenchment and the ‘hydraulics’ metaphor concisely with concrete statutory examples.
• SEED: Angle: how TRAP-style attritional regulation works as a durable entrenchment strategy precisely because it never bans outright — the ban-pretext is disposable rhetoric, the regulations persist.

Broader Connections

• Government contracts can control private conduct by inducement rather than regulation #exemplifies (0.90) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 837
• Constitutional adjudication can achieve total prohibition where legislation cannot #exemplifies (0.78) — , The Rod and the Child, 10912
• Legalism paradoxically disables the power it aims to secure #complicates (0.72) — Chuck Missler, The Kingdom, Power and Glory, 1228