SUPREME COURT OF THE UNITED STATES
_________________
No. 21–806
_________________
HEALTH AND HOSPITAL CORPORATION OF MARION
COUNTY, et al., PETITIONERS
v. IVANKA TALEVSKI, as
personal representative of the ESTATE OF GORGI TALEVSKI,
DECEASED
on writ of certiorari to the united states
court of appeals for the seventh circuit
[June 8, 2023]
Justice Thomas, dissenting.
I agree with Justice Alito that the Federal
Nursing Home Reform Act (FNHRA) cannot be enforced through Rev.
Stat. §1979, 42 U. S. C. §1983, under
Gonzaga Univ. v.
Doe,
536 U.S.
273 (2002). I write separately to highlight another and more
fundamental reason why FNHRA cannot be enforced under §1983.
Section 1983 provides a cause of action to redress only “the
deprivation of any rights, privileges, or immunities secured by the
Constitution and laws.” But legislation enacted pursuant to
Congress’ spending power, like FNHRA, does not
“secure” rights by “law.”
For nearly all of our Nation’s history, it
was understood that there is a fundamental difference between the
exercise of Congress’ sovereign legislative powers, on the
one hand, and the exercise of its power to spend money and to
attach conditions to the receipt of that money, on the other. Only
the former sort of legislation, which imposes obligations on
regulated parties with the force of law, directly secures by law
the rights corresponding to those obligations. By contrast, an
exercise of Congress’ spending power, whether it comes from
the so-called Spending Clause or elsewhere in the Constitution, is
no more than a disposition of funds. As such, a
conditional
exercise of the spending power is nothing more than a contractual
offer; any “rights” that may flow from that offer are
“secured” only by the offeree’s acceptance and
implementation, not federal law itself.
Since
Maine v.
Thiboutot,
448 U.S. 1
(1980), however, this Court has ignored that fundamental
distinction, permitting third parties who benefit from spending
conditions to enforce them in §1983 suits against state
actors. In doing so, it has created a constitutional quandary: If
spending conditions that benefit third parties are laws and secure
rights in the same manner as ordinary lawmaking under
Congress’ sovereign legislative powers, then such conditions
would contradict the bedrock constitutional prohibition against
federal commandeering of the States. We escape this quandary only
by recognizing spending conditions, not as rights-securing laws,
but as the terms of possible contracts that secure rights only by
virtue of an offeree’s acceptance—the very conclusion
compelled by the traditional understanding of the spending power.
The choice between these alternatives is stark and unavoidable:
Either spending conditions in statutes like FNHRA are not laws that
secure rights cognizable under §1983, or they are
unconstitutional direct regulations of States. The Court must, at
some point, revisit its understanding of the spending power and its
relation to §1983.
I
This case arises from a §1983 suit to
enforce FNHRA’s spending conditions against a county-owned
nursing home that receives federal funding. Enacted under
Congress’ spending power, FNHRA conditions the receipt of
federal Medicaid funding by States and nursing facilities on
compliance with a broad range of requirements.
These conditions largely consist of requirements
that funding recipients protect certain “rights” of
nursing-home residents. In a subsection entitled
“[r]equirements relating to residents’ rights,”
the Act requires recipients to “protect and promote the
rights of each resident,” including “[t]he right to
choose a personal attending physician” and make informed
medical decisions; “[t]he right to be free from physical or
mental abuse, corporal punishment, involuntary seclusion, and any
[medically unnecessary] physical or chemical restraints”; and
“[t]he right[s] to privacy” and
“confidentiality.” 42 U. S. C.
§§1396r(c)(1)(A)(i)–(iv). The Act further provides
that funding recipients “must permit each resident to remain
in the facility and must not transfer or discharge the
resident” without cause. §1396r(c)(2)(A). Recipients
must also adopt procedures for residents to assert these
“rights” and to otherwise “voice grievances with
respect to [their] treatment or care.”
§1396r(c)(1)(A)(vi).
The Act also imposes many requirements directly
and uniquely upon participating States, including in a subsection
entitled “State requirements relating to nursing facility
requirements.” §1396r(e). For instance, States must
establish procedures for residents to challenge transfer and
discharge decisions and an appeals process for other
determinations. §§1396r(e)(3) and (e)(7)(F). States are
also required to certify non-state-run facilities’ compliance
with the Act’s provisions by conducting annual surveys using
protocols developed by the Secretary of Health and Human Services.
§1396r(g)(2)(A). If a State finds that a facility is not
providing adequate care, it must conduct an extended survey.
§1396r(g)(2)(B). The Act also requires States to investigate
resident complaints and perform onsite monitoring at previously
noncompliant or potentially noncompliant facilities.
§1396r(g)(4)(B). And, if it finds a violation that
“jeopardize[s] the health or safety of [a facility’s]
residents, the State shall take immediate action to remove the
jeopardy and correct the deficiencies.”
§1396r(h)(1)(A).[
1]
FNHRA’s scheme is illustrative of many
modern federal spending programs, which often impose obligations
directly on States as a condition of funding. For example, as a
condition on highway funding, the Clean Air Act requires States to
draft “State implementation plans” if their
metropolitan areas fail to satisfy national ambient air quality
standards. 42 U. S. C. §§7410 and
7509(a)–(b). Among other requirements, these plans must
include emission limitations, compliance timetables, source
monitoring, permitting systems, enforcement programs, and public
participation. See §7410(a)(2). Other examples, spanning
virtually every domain of national and state policy, abound.
The ubiquity of such spending conditions,
combined with the Federal Government’s overwhelming financial
heft, has made Spending Clause legislation an extraordinarily
potent instrument of federal control.[
2] Congress and federal agencies “regularly us[e]
conditions to direct state and local governments in their
regulatory and spending policies.” P. Hamburger, Purchasing
Submission 139 (2021) (Hamburger). As a result, “the
priorities and programs of state and local governments have
increasingly come to reflect federal decisions,” to the point
that the States have virtually become “disaggregated sites of
national governance, not separate sovereigns.”
Id., at
141 (internal quotation marks omitted). Given the profound
consequences of spending conditions for the Nation’s
governance and the fundamental shift that they have wrought in our
federalist system, a sound understanding of their constitutional
basis and permissible legal effects is essential.
II
This case presents one aspect of that
question: whether spending conditions that impose obligations on
States for the benefit of third parties may be enforced under
§1983. That statute provides a cause of action against any
“person who, under color” of state law, deprives the
plaintiff “of any rights, privileges, or immunities secured
by the Constitution and laws.” Accordingly, for the violation
of a federal statutory provision to give rise to a cognizable
§1983 claim, the provision must confer “rights,
privileges, or immunities” that are “secured by
. . . la[w].” This Court’s cases make clear
that a right is secured by law in the relevant sense if, and only
if, federal law imposes a binding obligation on the defendant to
respect a corresponding substantive right that belongs to the
plaintiff.[
3]
In
Thiboutot, the Court held that
“the plain language of [§1983] undoubtedly embraces [a]
claim that [the defendant] violated” a spending-power
statute, reasoning that “the phrase ‘and laws’
. . . means what it says” and is not “limited
to some subset of laws.” 448 U. S., at 4. The Court
unquestioningly follows
Thiboutot’s logic today.
It is obvious, however, that conditional
spending legislation does not function—and, in particular,
does not “secure rights”—like laws enacted under
Congress’ enumerated legislative powers, such as the Commerce
Clause. The latter, which I will refer to as “sovereign
legislative” or “regulatory” powers, include
powers to directly impose obligations, duties, prohibitions, and
the like on individuals and entities beyond the Federal Government,
and hence to secure corresponding rights in the persons and
entities to which such obligations are owed. Laws that Congress
enacts pursuant to its regulatory powers are binding on the
regulated parties and pre-empt contrary state law of their own
force. Whatever rights such laws secure, those rights are secured
“by the . . . laws” themselves.
§1983.
By contrast, legislation that conditions a
State’s receipt of federal funds on compliance with certain
requirements imposes no obligations and secures no rights of its
own force. The stated conditions simply have no effect and do not
arguably secure any rights (“by law” or otherwise)
unless and until they are freely accepted by the State. Not only
that, the Executive Branch can prevent the conditions from taking
effect by rejecting a State’s application to participate in
the spending program, and it can terminate their effect by cutting
off a State’s participation for noncompliance with the
conditions. In addition, States can opt out of spending programs,
completely nullifying whatever force the spending conditions once
had. This alone suggests that spending conditions do not operate
with the force of federal law, as “Congress’
legislative powers cannot be avoided by simply opting out.”
D. Engdahl, The Contract Thesis of the Federal Spending Power, 52
S. D. L. Rev. 496, 498 (2007) (emphasis deleted); see
also
Townsend v.
Swank,
404 U.S.
282, 292 (1971) (Burger, C. J., concurring in result)
(“[A]dherence to the provisions of [spending statutes] is in
no way mandatory upon the States under the Supremacy
Clause”).
Indeed, spending conditions like those in FNHRA
do not function as laws enacted under Congress’ regulatory
powers, and, if they did, they would unconstitutionally commandeer
the States to administer federal programs ranging from welfare, to
healthcare, to air quality, and much more. Such conditions are thus
constitutional, if at all, only if understood as setting forth the
terms of a federal-state contract, rather than as binding federal
law imposing legally enforceable obligations of its own force. In
holding that FNHRA secures rights by federal law, the majority
ignores the contractual understanding of spending conditions and,
by doing so, calls their very constitutionality into question.
A
As noted earlier, a defining characteristic of
modern spending legislation is the imposition of obligations on
States that accept federal funds. Understanding a State’s
breach of such obligations as akin to violating rights secured by
federal law is incompatible with this Court’s
anticommandeering doctrine. Under this bedrock constitutional
principle, Congress generally cannot directly regulate the States
or require them to implement federal programs.
“When the original States declared their
independence, they claimed the powers inherent in
sovereignty.”
Murphy v.
National Collegiate
Athletic Assn., 584 U. S. ___, ___ (2018) (slip op., at
14) (citing Declaration of Independence ¶32).[
4] Later, in ratifying the Constitution, the
people of the original States granted carefully enumerated
legislative powers to the new Federal Congress, while preserving
the States’ pre-existing legislative power. 584 U. S.,
at ___ (slip op., at 15). “[C]onspicuously absent from”
Congress’ enumerated powers was “the power to issue
direct orders to the governments of the States.”
Ibid.
Thus, as this Court has made clear, the
Constitution “confers upon Congress the power to regulate
individuals, not States.”
New York v.
United
States,
505 U.S.
144, 166 (1992).[
5] As a
corollary, Congress “may not conscript state governments as
its agents,” nor can it “require the States to govern
according to [its] instructions.”
Id., at 162, 178.
And, “[w]hatever the outer limits of [state] sovereignty may
be, one thing is clear: The Federal Government may not compel the
States to enact or administer a federal regulatory program.”
Id., at 188.[
6]
Yet that is precisely what many spending
conditions require the State to do. Spending conditions like
FNHRA’s are nothing more than commands to States,
qua
States, to administer federal benefits programs on terms dictated
by Congress. Such conditions cannot be treated as having the force
of federal law imposing direct obligations on the States and
securing correlative rights of private parties without violating
the anticommandeering doctrine.
It is no answer that the States consent to
direct regulation by agreeing to the spending conditions in return
for federal dollars. As the Court held in
New York,
“[w]here Congress exceeds its authority relative to the
States, . . . the departure from the constitutional plan
cannot be ratified by the ‘consent’ of state
officials.”
Id., at 182. Because the people have
surrendered only limited and enumerated powers to the Federal
Government, the States and Congress cannot jointly circumvent the
ratification and amendment process by agreeing “to the
enlargement of the powers of Congress beyond those enumerated in
the Constitution.”
Ibid. The Federal Government cannot
buy (or rent) the States’ power to implement a federal
program and then regard the conditions that the States are
implementing themselves as having the force of federal law.
B
Of course, it is ultimately the States’
consent that gives effect to conditions in spending legislation,
but it does so in an entirely different manner from an illicit
expansion of Congress’ regulatory powers. Rather, as the
Court observed in
Pennhurst State School and Hospital v.
Halderman,
451 U.S. 1
(1981), “legislation enacted pursuant to the spending power
is much in the nature of a contract.”
Id., at 17. A
federal statute imposing conditions upon the receipt of federal
funding does not enact those conditions with “the obligation
of law”; it merely “proposes them as the terms of a
contractual promise.” Hamburger 132. Such spending provisions
“merely stipulate what the government expects from recipients
if it is to pay them or, later, not withhold further payment and
demand its money back.”
Ibid. Thus, “even when
fully recited in statutes, federal conditions do not come with
legal obligation.”
Ibid.
Further, and as already noted, the conditions in
spending legislation only come into force upon the acceptance of
another party. Such conditions are thus “obligatory only by
virtue of such agreement and not by force of law.” D.
Engdahl, The Spending Power, 44 Duke L. J. 1, 104 (1994). To
be sure, “it is a statute that prescribes the funding
condition and requires denial of federal assistance if the funding
condition is not agreed to.”
Ibid. But, “only
the agreement—and not the statute—makes the terms
obligatory on the funds recipient and thus ‘secures’
the contemplated third-party rights.”
Ibid.[
7] Accordingly, such “third-party
rights . . . are ‘secured’ (if at all) not by
any ‘law,’ but only by the contract between the
recipient and the United States.”
Ibid.
This contractual understanding of conditional
spending legislation is much more than a mere analogy; it is the
only possible explanation for why such legislation is not an
unconstitutional direct regulation of the States. To deny or
downplay this principle is to seek to have it both ways. Much
spending legislation conditions States’ receipt of federal
funds on their undertaking obligations with respect to third
parties. For such legislation to survive a federalism challenge, it
must not directly impose obligations on the States with the force
of federal law. But, for those conditions to be enforceable under
§1983, they must secure third-party rights by directly
imposing correlative obligations on the States with the force of
federal law. Both of these things cannot be true.
III
This contractual understanding of spending
conditions is also a necessary consequence of the limited nature of
Congress’ spending power, as consistently understood for
nearly two centuries of our Nation’s history. Indeed, this is
one point on which the Framers all seem to have agreed. Despite
heated debates over the source and scope of Congress’ power
to spend, all understood that this power did not carry with it any
independent regulatory authority. That agreement persisted
throughout the 19th century. And, in the 20th, it was a critical
underpinning of this Court’s precedents upholding expansive
uses of the spending power as consistent with Congress’
limited legislative powers and our federalist system of
government.
A
At the outset, while Congress undoubtedly
possesses the power to direct the expenditure of federal funds, it
is important to note that the Constitution contains no
“spending clause.” From the beginning, some have
located the spending power in the General Welfare Clause, and that
view has generally been accepted by this Court’s modern
doctrine. See Engdahl, 44 Duke L. J., at 53, and n. 220
(describing Alexander Hamilton’s views);
South Dakota
v.
Dole,
483 U.S.
203, 206 (1987). Yet, there are serious problems with that
view.
The General Welfare Clause is simply part of the
Taxing Clause, which reads in relevant part: “The Congress
shall have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common Defence and
general Welfare of the United States.” Art. 1, §8,
cl. 1. By its terms, the only authority vested by this text is
a power to “lay and collect Taxes, Duties, Imposts and
Excises.” This power is then qualified by the Debts and
General Welfare Clauses, which limit the objects for which Congress
can exercise that power. The General Welfare Clause is thus most
naturally read as a qualification on the substantive taxing
power.
Consider also that the General Welfare Clause
references not only the “general Welfare” but also
“the common Defence.” If the Clause were construed as
an affirmative grant of power to spend for the common defense, it
would make redundant Congress’ powers to “raise and
support Armies” and to “provide and maintain a
Navy,” also found in Article I, §8, cls. 12–13.
Thus, “[i]f the reference to ‘common Defence’
spending simply alludes to power conferred elsewhere,” then
it seems illogical to consider the terms “general
Welfare” as the source of a freestanding power to spend for
whatever purposes. D. Engdahl, The Basis of the Spending Power, 18
Seattle U. L. Rev. 215, 222 (1995).
The Taxing Clause is also a strange candidate
for the source of a general congressional spending power because
“it fails to provide any authority at all to spend money
acquired otherwise than by taxation.”
Ibid. Yet,
“[t]he federal treasury receives money from many other
sources, including penalties, fines, user fees, leases, surplus
property sales, gifts, bequests, and returns on investments.”
Ibid. And those sums are a pittance in comparison to those
raised under Congress’ Borrowing Clause power, see Art. I.,
§8, cl. 2, which has always been one of the major sources
of federal funds. Unless federal spending on credit and from
revenues not derived from “Taxes, Duties, Imposts and
Excises” is unconstitutional, the General Welfare Clause
cannot be the source of Congress’ spending power.
The Clause certainly is not an independent grant
of
regulatory power to legislate for the general welfare, as
the history of the Constitution’s framing and ratification
makes clear. The Philadelphia Convention initially adopted a
resolution that Congress be authorized “ ‘to
legislate in all cases for the general interests of the Union, and
also in those to which the States are separately incompetent, or in
which the harmony of the United States may be interrupted by the
exercise of individual legislation.’ ” J. Renz,
What Spending Clause? (Or the President’s Paramour), 33 John
Marshall L. Rev. 81, 104 (1999) (Renz). But the Convention
later abandoned this vesting of a broad power to legislate for the
general welfare in favor of the enumeration of specific federal
legislative powers and the creation of a taxing power limited by
the General Welfare Clause. See R. Natelson, The General Welfare
Clause and the Public Trust: An Essay in Original Understanding, 52
Kan. L. Rev. 1, 23–29 (2003) (Natelson); see also Renz
104–105 (counting five instances in which the Convention
considered and rejected attempts “to insert a grant of
general legislative power into the Constitution”).[
8]
Consistent with its text, Federalist advocates
of the Constitution defended the General Welfare Clause to the
ratifying public as nothing more than a limitation on the taxing
power. See,
e.g., 3 Debates on the Constitution 207 (J.
Elliot ed. 1876) (Elliot’s Debates) (E. Randolph, Virginia
Convention) (“The plain and obvious meaning of this is, that
no more duties, taxes, imposts, and excises, shall be laid, than
are sufficient to pay the debts, and provide for the common defence
and general welfare, of the United States”); N. Webster, An
Examination Into the Leading Principles of the Federal
Constitution, in Pamphlets on the Constitution of the United States
50 (P. Ford ed. 1888) (“[I]n the very clause which gives the
power of levying duties and taxes, the purposes to which the money
shall be appropriated are specified, viz.
to pay the debts and
provide for the common defence and general welfare of the United
States”); see also Natelson 47–49. “[T]heir
basic message was that the language in question was not a grant at
all—rather it was a restriction on federal authority.”
Id., at 39. As Governor Randolph emphatically declared:
“Is this an independent, separate, substantive power, to
provide for the general welfare of the United States? No,
sir.” 3 Elliot’s Debates 466.
Federalists went out of their way to
specifically disclaim that the General Welfare Clause would vest
any independent
regulatory power. For example, James Madison
expressly rejected Anti-Federalist attempts to portray the General
Welfare Clause as granting “an unlimited commission to
exercise every power which may be alleged to be necessary for the
common defense or general welfare.” The Federalist No. 41, p.
262 (C. Rossiter ed. 1961). Similarly, in rebutting Patrick
Henry’s warning that the Clause would vest a regulatory
power, Governor Randolph observed: “You must violate every
rule of construction and common sense, if you sever it from the
power of raising money, and annex it to anything else, in order to
make it that formidable power which it is represented to be.”
3 Elliot’s Debates 600. Again and again, leading Federalists
represented the General Welfare Clause simply “as qualifying
the fiscal power.” E. Corwin, The Spending Power of
Congress—Apropos the Maternity Act, 36 Harv. L. Rev.
548, 552 (1923) (citing The Federalist Nos. 30 and 34 (A.
Hamilton), and 41 (J. Madison)). “It was generally
understood” by the Constitution’s ratifiers “that
the General Welfare Clause did not confer power to regulate”;
such regulatory powers were conferred only by specific enumerations
such as the Commerce Clause. T. Sky, To Provide for the General
Welfare 67 (2003) (Sky).
Thus, even if one implausibly regards the
General Welfare Clause as a “Spending Clause,” it is
unambiguous that the Clause confers no independent regulatory
power. Importantly, the same holds for every other plausible
textual anchor for Congress’ general spending power. First,
the Necessary and Proper Clause is a natural candidate for the
spending power because spending funds may be “necessary and
proper for carrying into Execution” the Federal
Government’s enumerated powers. Art. I., §8, cl. 18; see
G. Lawson & G. Seidman, The Constitution of Empire 30 (2004)
(Lawson & Seidman) (“This ‘Sweeping Clause’
. . . unquestionably includes the power to enact spending
laws that are ‘necessary and proper’ for effectuating
federal powers”); K. Stith, Congress’ Power of the
Purse, 97 Yale L. J. 1343, 1348 (1988) (arguing that the Necessary
and Proper Clause “includes the power to spend public funds
on authorized federal activities”). But, because the Clause
authorizes only those spending measures that are
“ ‘necessary and proper for carrying into
Execution’ other enumerated federal powers[,] Congress can
. . . spend only if the appropriation is tied to the
execution of one of the federal government’s granted
powers.” Lawson & Seidman 30. The Clause thus “does
not provide a stand-alone grant of spending authority, and
certainly not an authority to spend for a nonspecific
‘general welfare of the United States.’ ”
Ibid.
A second plausible source of the spending power
is the Property Clause, which provides that “Congress shall
have Power to dispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the United
States.” Art. IV, §3, cl. 2. The term “other
Property” may “comprehen[d] personal property no less
than real,” and “personal property includes money, as
well as financial assets of all kinds.” Engdahl, 18 Seattle
U. L. Rev., at 250 (emphasis deleted). But the power to
dispose of funds does not carry with it any regulatory power; the
Property Clause “only authorizes the control and disposition
of federal property” and “does not disturb the
allocation of
governance authority otherwise accomplished
under the principle of enumerated powers.”
Id., at
251. Thus, when disposing of federal property under the Property
Clause, “Congress has no more competence to make
‘law’ than any private donor or testator has.”
Engdahl, 44 Duke L. Rev., at 104.
B
In the early decades after ratification, both
the source and the scope of the spending power were hotly
contested, usually in debates over “internal
improvements” such as roads and canals. One side, represented
by Madison, maintained that federal spending must be strictly in
aid of the Federal Government’s specifically enumerated
powers—for instance, expenditures to construct a road would
be justified only if the road could be constructed under the Post
Roads Clause or some other enumerated power. See Renz
108–119; see also J. Eastman, Restoring the
“General” to the General Welfare Clause, 4 Chap. L.
Rev. 63, 72 (2001). As this side of the debate also took a narrow
view of the enumerated powers, it generally argued that the Federal
Government could not fund internal improvements without a
constitutional amendment. See Sky 140–141. The other camp,
associated with the nationalist views of Hamilton and Joseph Story,
understood the General Welfare Clause to “include a very
broad spending authority,” which could be applied to purposes
not specifically enumerated by the Constitution. Natelson 12; see
also Renz 124–126.
Even this camp, however, understood that
“the General Welfare Clause does not include a power to
regulate.” Natelson 12; see also Sky 96. Hamilton, for
example, made clear that the spending power did not “imply a
power to do whatever else should appear to Congress conducive to
the general welfare.” Report on the Subject of Manufactures
37 (1791). As he further elaborated, “[a] power to
appropriate money [does] not carry a power to do any other thing,
not authorized in the Constitution, either expressly or by fair
implication.”
Ibid. Instead, any regulatory authority
had to be tethered to some independent regulatory power. Thus,
under this view, Congress could spend money on roads and canals
unconnected with the enumerated powers, but it would have to depend
on the States for any regulatory legislation needed to complete and
preserve the improvements.
This understanding that the spending power
itself extended only to the “
application of
money,”
ibid. (emphasis in original), led Hamilton
to favor a constitutional amendment “empowering Congress to
open canals.” Letter from A. Hamilton to J. Dayton (1799), in
10 Works of Alexander Hamilton 334 (H. Lodge ed. 1904). After all,
opening canals “involve[d] much more than spending money: it
involve[d] acquiring rights of way and constructing and operating
the improvements.” Engdahl, 44 Duke L. Rev., at 23.
Thus, it was precisely the “insufficiency of the spending
power to override state law obstacles to achieving the targeted end
that made Hamilton conclude that a constitutional amendment for
canals was necessary.”
Id., at 24. “[F]ederal
funding alone” could not “override”
“incompatible or adverse state policies.”
Ibid.
As this example demonstrates, even those who held the broadest
conception of the spending power recognized that it was only a
power to spend, not a power to impose binding requirements with the
force of federal law. See Sky 95.
The limited nature of the spending power was
also a rare point of agreement in Hamilton and Jefferson’s
bitter quarrel over the constitutionality of a national bank.
Reflecting the ratification era understanding of the General
Welfare Clause, Jefferson observed that “the laying of taxes
is the
power and the general welfare the
purpose for
which the power is to be exercised.” Opinion on the
Constitutionality of the Bill for Establishing a National Bank
(Feb. 15, 1791), in 19 Papers of Thomas Jefferson 277 (J. Boyd ed.
1974) (emphasis in original). If the General Welfare Clause went
beyond “describing the purpose of the” Taxing Clause
and represented “a distinct and independent power to do any
act [Congress may] please, which might be for the good of the
Union,” it “would render all the preceding and
subsequent enumerations of power completely useless.”
Ibid.; accord, J. Madison, The Bank Bill (Feb. 2, 1791), in
13 Papers of James Madison 375 (C. Hobson & R. Rutland eds.
1981) (interpreting the General Welfare Clause as a distinct power
“would supersede all the powers reserved to the state
governments”). In response, Hamilton justified the bank based
on Congress’ enumerated powers, such as the Commerce and
Taxing Clauses. Opinion on the Constitutionality of an Act To
Establish a Bank (Feb. 23, 1791), in 8 Papers of Alexander Hamilton
97 (H. Syrett ed. 1965). He discussed the General Welfare Clause
only as a limitation: “It is true, that [Congress] cannot
without breach of trust, lay taxes for any other purpose than the
general welfare.”
Id., at 129. In his view, the
spending power was emphatically limited to “
the
application of
money.”
Ibid. (emphasis in
original). Jefferson and Hamilton could agree that it was no
independent font of legislative power.
In sum, the Framers and Ratifiers understood the
Taxing and General Welfare Clause as granting only a power to tax.
What our modern cases refer to as the “Spending
Clause”—in fact, the General Welfare Clause—was
understood by the Framers and the ratifying public as granting no
regulatory authority. One thing that the opposing men and factions
of the founding generation agreed upon was that the Federal
Government’s power to spend was just that—a power to
spend, involving no regulatory authority. Instead, the power to
bind with the force of law must come from Congress’
enumerated legislative powers rather than its spending power.
C
Though the scope and source of the spending
power continued to be vigorously contested into the 19th century,
the fundamental understanding that federal spending measures could
not bind with the force of law remained common ground. For example,
in his last official act, President Madison vetoed an internal
improvements bill in part because the “train of powers
incident” to constructing and maintaining such improvements
were beyond Congress’ enumerated powers. 30 Annals of Cong.
211, 212 (1817). The General Welfare Clause could not provide the
needed regulatory authority, as such an interpretation “would
have the effect of giving to Congress a general power of
legislation,” thus rendering the Constitution’s
“special and careful enumeration of powers . . .
nugatory and improper.”
Id., at 212. That the bill
required state consent was likewise insufficient because, if the
power “be not possessed by Congress, the assent of the States
. . . cannot confer the power.”
Ibid.
Upon assuming office, President James Monroe
sent a message to Congress agreeing with Madison’s views; the
message was then referred to a special Committee in the House of
Representatives led by Congressman Henry Tucker. Corwin, 36 Harv.
L. Rev., at 559–560. The Tucker Committee produced an
exhaustive report on internal improvements, which disagreed with
nearly every aspect of Madison and Monroe’s position.
Id., at 560–561. Significantly, however, the Committee
agreed that the General Welfare Clause did not vest the power
needed to make internal improvements, relying instead on the
Constitution’s specific enumerations such as the Post Roads
Clause. 31 Annals of Cong. 454 (1817) (“disavow[ing] any use
of the general phrase in the Constitution to provide for the common
defence and general welfare, as applicable to the enumeration of
powers, or as extending the power of Congress beyond the specified
powers”). The Tucker Committee also agreed with President
Monroe that the spending power did not “extend the specified
or incidental powers of the Government” or allow Congress to
exercise any “jurisdictional [
i.e., regulatory]
rights” over improvements.
Id., at 459–460.
Thus, “if the power to make a road or dig a canal is not
given” by one of Congress’ enumerated regulatory
powers, “the power of appropriating money cannot confer
it.”
Id., at 459.[
9]
In his second term, President Monroe set forth
the fullest exposition of the understanding that the spending power
involved no regulatory authority. In 1822, Congress passed a bill
to establish a system of internal improvements, asserting the
“power to establish turnpikes with gates and tolls, and to
enforce the collection of tolls by [federal] penalties.” Sky
147 (internal quotation marks omitted). President Monroe then
vetoed the measure, judging that Congress’ spending authority
did not extend to such “a complete right of jurisdiction and
sovereignty for all the purposes of internal improvement, and not
merely the right of applying money under the power vested in
Congress to make appropriations.” 2 Messages and Papers of
the Presidents 1789–1908, p. 142 (J. Richardson ed. 1897)
(Richardson). Because Monroe understood “that Congress do[es]
not possess this power [and] the States individually can not grant
it,” he agreed with Madison and Hamilton that the
“power can be granted only by an amendment to the
Constitution.”
Id., at 143.
To explain his veto, President Monroe sent
Congress an extensive report entitled “Views of the President
of the United States on the Subject of Internal
Improvements.” In this report—perhaps “the most
elaborate constitutional discussion ever sent to the Capitol from
the White House”—Monroe synthesized the understanding
of the spending power from the founding of the Republic. L. Rogers,
The Postal Power of Congress 75 (1916). And, in doing so, he
largely settled the contours of that understanding for over a
century.
In the centerpiece of the Views, Monroe
explained that the spending power carries no incidental power to
regulate individuals or States. Echoing Hamilton, Monroe understood
the spending power to consist of “a right to appropriate the
public money, and nothing more.” Richardson 162. It carries
with it “no incidental power, nor does it draw after it any
consequences of that kind.”
Id., at 168. Monroe
proceeded to carefully distinguish the spending power from
Congress’ authority to impose obligations and duties:
“[T]he use or application of the money after it is raised is
a power altogether of a different character” from
Congress’ enumerated regulatory powers such as the taxing
power; “[i]t imposes no burden on the people, nor can it act
on them in a sense to take power from the States.”
Id., at 164.
Applying this understanding of the spending
power to the question of internal improvements, Monroe explained
that Congress could only “appropriate the money necessary to
make them.”
Id., at 168. Where none of Congress’
enumerated regulatory powers was applicable, Monroe concluded,
“[f]or every act requiring legislative sanction or support
the State authority must be relied on.”
Ibid. Thus,
Congress could not itself pass laws providing for “[t]he
condemnation of the land, . . . the establishment of
turnpikes and tolls, and the protection of the work when
finished.”
Ibid.
Monroe’s summation of the federal spending
power, reflecting that it does not carry with it any regulatory
power, was accepted throughout the 19th century by friends and foes
of federal power alike. In his 1825 inaugural address, President
John Quincy Adams explained that Monroe’s Views had
“conciliated the sentiments and approximated the opinions of
enlightened minds upon the question of constitutional power.”
Inaugural Address, Mar. 4, 1825, in 5 American State Papers,
Foreign Relations 753, 755 (1858). Five years later, President
Andrew Jackson vetoed the Maysville Road Bill of 1830 for the same
reasons Monroe had vetoed the Cumberland Road Bill of 1822:
Congress lacks “[t]he right to exercise as much jurisdiction
as is necessary to preserve the works and to raise funds by the
collection of tolls to keep them in repair,” and
“[w]ithout [such power] nothing extensively useful can be
effected.” Richardson 492.
Justice Joseph Story’s Commentaries on the
Constitution also recognized that the spending power did not carry
with it any auxiliary power to bind individuals or States. Citing
Monroe’s Views liberally, Story agreed that Congress could
not enact a system of internal improvements under the General
Welfare Clause. Although he located the spending power in that
Clause, Story understood that the power was confined “to mere
appropriations of money,” and that, as a result, the Federal
Government could not regulate internal improvements except pursuant
to its legislative “enumerated powers.” 3 Commentaries
on the Constitution of the United States, §1269, p. 150
(1833); see also Sky 224 (“[A]s read by Story, the General
Welfare Clause did
not constitute a regulatory power,
independent of the spending power, authorizing Congress to enact
whatever measures it wished . . . under an unlimited
power to legislate for the general welfare of the United
States”).
Although disagreement on whether Congress could
spend for purposes beyond the enumerated powers persisted through
the Antebellum and Reconstruction eras, the understanding that the
spending power did not imply regulatory power persisted. See
generally Sky 232–240, 270–291. Because Congress was
acting solely under its power to spend, it relied on the
States’ acceptance of terms and upon the States’
legislative powers to carry out federal spending programs.
D
Given this consensus, it is not surprising
that the first federal grant-in-aid spending programs were
contractual in nature. The Morrill Act of 1862, perhaps the first
such program, extended an offer to the States to accept donations
of federal lands on the condition that the State use the land to
establish a college. 12Stat. 504–505. States had two years to
accept the federal terms in the form of an Act by the State’s
legislature.
Id., at 505 Significantly, the only consequence
for a State’s breach of the use condition was contractual in
nature—“the grant to such State shall cease; and said
State shall be bound to pay the United States the amount received
of any lands previously sold.”
Id., at 504–505.
The Second Morrill Act, enacted in 1890, followed the same
framework, donating money for the endowment of agricultural and
mechanical arts colleges, subject to the condition that black
students not be excluded. Ch. 841, 26Stat. 417. Like the First
Morrill Act, the only consequence for noncompliance was that future
appropriations under the Act would cease until the State brought
itself into compliance.
Id., at 419.
In the early 20th century, the adoption of the
Sixteenth Amendment and the national income tax vastly expanded the
revenue available to the Federal Government. But the increasingly
ambitious spending programs that followed did not break the
contractual pattern established by the Morrill Acts. Thus,
early-20th-century highway grants took the form of an offer to
enter a contract, with the consequence of noncompliance being the
cutoff of federal funds. See Corwin, 36 Harv. L. Rev., at 574,
n. 72 (describing Federal Highway Act of 1916); see also
id., at 573–575 (collecting other examples).
Even in the New Deal era, advocates of
far-reaching spending programs continued to understand the spending
power as a mere power of appropriation. Professor Corwin, for
example, recognized that the States must be depended upon to
exercise the legislative power needed to implement such programs.
Thus, “federal highway construction relie[d] on the state
power of eminent domain, as well as on state power to police and
protect highways during and after their construction.”
National-State Cooperation—Its Present Possibilities, 46 Yale
L. J. 599, 617 (1937). Similarly, national protection of
forests depended on “the power of the states to regulate the
conduct of persons entering forests,” and the provision of
maternity benefits depended on “the power of the cooperating
states to compel birth registration, the licensing of mid-wives,
etc.”
Ibid. Thus, more than 100 years after
Monroe’s Views, it was still well understood that the Federal
Government’s spending power needed to work with “the
wider coercive powers of the states” to accomplish its ends.
Ibid. And, a State’s acceptance of federal funds in
return for exercising its own powers did not expand the Federal
Government’s legislative powers.
In sum, from the framing of the Constitution to
well into the 20th century, it was virtually undisputed that
Congress’ spending power was nothing more than a power to
spend. It included no regulatory authority to bind parties, to
secure rights or impose duties with the force of federal law, and
no authority to directly regulate the States even with their
consent.
E
When cases concerning expansive federal
spending programs first began to reach this Court, they vividly
illustrated both the enduring understanding of the spending power
as a nonregulatory power and the contractual understanding of
spending conditions. The Federal Government defended major spending
programs on the basis of that understanding, and the programs
survived this Court’s review only because of those
traditional premises.
In
Massachusetts v.
Mellon,
262 U.S.
447 (1923), the Court rejected as nonjusticiable
Massachusetts’ claim that the Maternity Act of 1921 was
“an attempt to legislate outside the powers granted to
Congress by the Constitution and within the field of local powers
exclusively reserved to the States.”
Id., at 482. The
Court first stated that it “[p]robably . . . would
be sufficient to point out that the powers of the State are not
invaded, since the statute imposes no obligation but simply extends
an option which the State is free to accept or reject.”
Id., at 480. In other words, the State could not be injured
because the Act was not a direct legal regulation. Rather, it was a
mere offer to bargain—it “imposed” no
“burden . . . upon the States” and did not
require them “to do or to yield anything” of its own
force.
Id., at 482. The State could not seek judicial
redress because the contractual nature of the Act’s
provisions meant that States could vindicate their own rights
“by the simple expedient of not yielding.”
Ibid.; see also Corwin, 36 Harv. L. Rev., at 579
(noting that the Maternity Act adhered to the traditional
requirements of state consent and the “general
caveat
against jurisdictional rights following in the wake of
appropriations”). “[T]he Justices in
Mellon
understood that Congress’ power to spend money is
not
a
legislative power.” Engdahl, 52 S. D.
L. Rev., at 498 (emphasis in original).
Cases involving New Deal spending programs teach
the same lesson. For example,
United States v.
Butler,
297 U.S. 1
(1936), concerned the constitutionality of the Agricultural
Adjustment Act, which offered subsidies to farmers not to sell
crops. The Government defended the Act on the ground that it did
not regulate any private or state party. Instead, “[a]ny
commands or restrictions in the Act [were] imposed only upon the
use by [federal] administrative officials of the money
granted.” Brief for United States in
United States v.
Butler, O. T. 1935, No. 401, p. 264. In line with the
traditional distinction between mere spending and regulatory
commands, the Government urged that “Congress ha[d] not gone
beyond its power of authorizing an expenditure” precisely
because “[i]t ha[d] not sought to force or command citizens
to receive the money offered and to perform the conditions upon
which the funds are to be disbursed.”
Id., at 265. The
Government expressly relied on the contractual nature of the
Act’s conditions, as distinct from any “exercise of
sovereign regulation”:
“It would be most unusual to suppose
that a contract of this nature, entered into freely by both
parties, is an exercise of sovereign regulation and control over
one of the parties or over the subject matter with which the
contract deals. . . . The rights of the United States
under the contracts are no greater than would be the rights of a
private citizen under similar contracts, and enforcement must be by
ordinary judicial process according to the law of the forum. The
contracts are not derogatory of any sovereign rights of the States;
they are carried out pursuant to and under the protection of the
laws of the States. . . . The purpose and effect of the
contracts so entered into are simply to accomplish the spending of
the money on the conditions imposed by Congress, and in authorizing
execution of such contracts Congress was not exerting a power
outside of the field of appropriation.”
Id., at
266–267.
The Government also disclaimed that the Act
would have pre-emptive effect: Because it went “no further
than offering benefits to those who comply with certain
conditions,” States “remain[ed] as free after the
passage of this Act as before to pass laws rendering it impossible
for any of their inhabitants to comply with such conditions.”
Id., at 268. Thus, to avoid a Tenth Amendment problem, the
Government relied on the traditional distinction between the
Federal Government’s power to spend and its power to
regulate:
“The distinction between an application
of the Federal lawmaking power to enforce compliance with the
desire of Congress and the use of the spending power to offer
benefits which might persuade people to that end [was] recognized
in this manner by th[e] first Congresses.
. . . . .
“When the United States goes no further
than extending benefits to citizens who arrange their affairs in a
manner thought beneficial by Congress, there is no direct exercise
of Federal power on those affairs and they remain subject to the
unhampered control of the States. Consequently, in a case of this
nature, the effect which the Act of Congress will have in a State
is dependent entirely upon the voluntary action of that State and
its inhabitants.”
Id., at 274, 276.
In deciding the case, the Court took the
Government’s concessions as given, stating, “[i]t is
not contended that [the General Welfare Clause] grants power to
regulate agricultural production.”
Butler, 297
U. S., at 64. The Court then agreed with Justice Story’s
observation that “the only thing granted is the power to tax
for the purpose of providing funds for payment of the
nation’s debts and making provision for the general
welfare.”
Ibid. Congress’ spending power, even
if located in the General Welfare Clause, conferred no regulatory
power.
The Court proceeded to hold the Act
unconstitutional precisely because it was, in reality, “a
statutory plan to regulate and control agricultural production, a
matter beyond the powers delegated to the federal
government.”
Id., at 68. That was because the
“regulation [was] not in fact voluntary,” as it would
lead to “financial ruin” for farmers who refused the
Act’s benefits.
Id., at 70–71. Confirming
another aspect of the traditional doctrine, the Court held that
even the purely voluntary consent of private parties could not
expand Congress’ limited regulatory powers.
Id., at
74–75.[
10]
The challenge to the Social Security Act in
Steward Machine Co. v.
Davis,
301
U.S. 548 (1937), followed a similar pattern but reached the
opposite result based on a different level of perceived coercion.
As in
Butler, the Federal Government defended a federal
statute—here, the Social Security Act—by representing
that conditions on the grant of federal funds “are not
regulatory” in nature and are thus within the spending power.
Brief for United States in
Steward Machine Co. v.
Davis, O. T. 1936, No. 837, p. 135. Seeking to avoid a
repeat of its loss in
Butler, the Government argued that the
program was also not regulatory in fact because it did not coerce
States to take or refrain from taking any actions. Brief for United
States in
Steward Machine Co. 100, 105–106.
This time, the Court agreed with the Government,
finding that the Act was not coercive and thus did not “go
beyond the bounds of ” Congress’ spending power.
Steward Machine Co., 301 U. S., at 591–592. Then,
in rejecting a federalism challenge to the measure, the Court
observed that once the State accepted the federal conditions, it
was bound with even lesser force than an ordinary contract.
Id., at 594–595. The State was “still free,
without breach of an agreement, to change her system over
night.”
Id., at 595. “No officer or agency of
the national Government [could] force a compensation law upon her
or keep it in existence,” nor could they “supervise or
control the application of the payments.”
Ibid.[
11]
The Court again demonstrated its adherence to
the traditional view in
Oklahoma v.
Civil Serv.
Comm’n,
330 U.S.
127 (1947). There, the U. S. Civil Service Commission
determined that an Oklahoma highway commissioner had violated the
Hatch Act, pledging to withhold a portion of the State’s
highway grants equal to two years’ of the
commissioner’s compensation if the State failed to remove
him. Oklahoma challenged the Commission’s order and the Act
on which it was based as an illicit attempt to regulate the
State’s internal affairs.
Id., at 133. Citing
Mellon, the Court held that the Act was valid because it did
not directly regulate the State, which had “adopted the
‘simple expedient’ of not yielding” by refusing
to remove its highway commissioner. 330 U. S., at 143.
Thus, to defend these spending programs in the
first half of the 20th century, the Government relied on the
long-settled understanding that the power to spend carries with it
no sovereign legislative power to create rights and duties. To the
contrary, the Government represented that these programs had the
binding force, at most, of contracts. They did not pre-empt, nor
did they bind States with the force of law; they merely spent
federal dollars upon conditions, the violation of which entitled
the Government to cease further payments. The Court took this
position as a given, and the contractual nature of spending
conditions is precisely what saved them from constitutional
challenge.
In sum, the historical record is clear and
consistent on a critical proposition: The spending power is the
power to spend only. Any duties imposed by regulatory legislation,
and any correlative rights secured by law, must find their source
in one of Congress’ enumerated powers or the legislative
powers of the States. Congress’ spending power cannot secure
rights by law.
IV
The contractual nature of spending conditions
was taken as a given until the second half of the 20th century,
when individuals first began to bring §1983 suits premised on
violations of conditions contained within spending statutes
(usually, the Social Security Act). From the enactment of
§1983’s predecessor statute in 1871 to the Court’s
decision in
Thiboutot in 1980, this Court had never held
that §1983 was available to redress any and all violations of
federal legislation. Indeed, there were almost “no square
holdings” concerning the precise scope of the statutory
rights vindicable by §1983.
Chapman v.
Houston
Welfare Rights Organization,
441 U.S.
600, 645 (1979) (Powell, J., concurring); see also
Eisen
v.
Eastman, 421 F.2d 560, 561–566 (CA2 1969)
(Friendly, J.). Perhaps the only such square holding was that of
Holt v.
Indiana Mfg. Co.,
176 U.S.
68 (1900), which narrowly construed §1983’s
predecessor statute to “refer to civil rights only,”
making it “inapplicable” in a suit based on the federal
patent laws.
Id., at 72.[
12]
The traditional understanding of both the
spending power and §1983 began slowly eroding in the 1950s,
1960s, and 1970s, culminating in
Thiboutot. On the
spending-power side, the Court held in
Cannon v.
University of Chicago,
441 U.S.
677 (1979), that the spending conditions of Title IX of the
Education Amendments created binding duties on private
universities, the violation of which could be the ground of a
federal lawsuit by a private party. In doing so, the Court
“simply ignored the crucial difference between restraints
accepted as conditions of funding, and restraints imposed by virtue
of a legislative power.” Engdahl, 52 S. D. L. Rev.,
at 509. And, on the §1983 side, the Court had considered a
number of suits against state officials for violations of the
Social Security Act without analyzing their cognizability under
§1983. See
Thiboutot, 448 U. S., at 6 (collecting
cases);
id., at 26 (Powell, J., dissenting) (“Far from
being a long-accepted fact, purely statutory §1983 actions are
an invention of the last 20 years”).
The stage was thus set for
Thiboutot to
discard nearly two centuries of settled spending-power doctrine by
holding that federal spending conditions secure rights by law.
Ignoring both the contractual nature of spending programs and the
enforcement-power-based understanding of §1983,
Thiboutot declared that “the plain language of the
statute undoubtedly embrace[d] respondents’ claim that [the
State] violated the Social Security Act.”
Id., at 4
(majority opinion). The centerpiece of the Court’s opinion
was its imprecise framing of the relevant question: “whether
the phrase ‘and laws,’ as used in §1983, means
what it says, or whether it should be limited to some subset of
laws.”
Ibid. After framing the issue thus, the Court
reasoned that nothing in the legislative history compelled limiting
the term “and laws” to civil rights laws enacted under
the Reconstruction Amendments. See
id., at 6–8.
But the Court’s opinion completely missed
the deeper conceptual question whether spending-power statutes can
ever impose obligations, and thus secure corresponding rights, with
the force of federal law.[
13] As explained at length above, the limited nature of
the spending power dictates a negative answer. And, a contrary
understanding would transform the terms of federal-state agreements
into binding regulations of state entities by federal
law—violating the constitutional prohibition against directly
regulating or commandeering the States.
It took less than a year after
Thiboutot
for the Court to realize the “ ‘constitutional
difficulties’ with imposing affirmative obligations on the
States pursuant to the spending power” and to take the first
step toward ameliorating the problems with
Thiboutot.
Pennhurst, 451 U. S., at 17, n. 13. In
Pennhurst, the Court held that a provision of the
Developmentally Disabled Assistance and Bill of Rights Act (a
conditional spending Act) could not be enforced against a state
entity under §1983.
Id., at 18. The Court first held
that the provision could not be considered as enforcement
legislation under the Fourteenth Amendment.
Id., at
16–17.[
14] The Court
then explained the fundamentally different natures of legislation
under the Reconstruction Amendments and “legislation enacted
pursuant to the spending power,” the latter of which
“is much in the nature of a contract: in return for federal
funds, the States agree to comply with federally imposed
conditions.”
Id., at 17. Consistent with the
traditional position, the Court also explained that “[i]n
legislation enacted pursuant to the spending power, the typical
remedy for state noncompliance with federally imposed conditions is
not a private cause of action for noncompliance but rather action
by the Federal Government to terminate the funds to the
State.”
Id., at 28. Ultimately, because the
Pennhurst Court determined that the provision at issue was
not intended to secure rights by imposing obligations on States,
see
id., at 22–27, it did not need to confront the
constitutional problem created by
Thiboutot. Nonetheless,
Pennhurst both recognized the problem and pointed to the
solution—a return to the traditional contractual
understanding that itself flows naturally from the limited nature
of Congress’ spending authority.
Without that understanding, however, it is
unavoidable that spending conditions that impose substantive
obligations on the States with the force of federal law are
unconstitutional.[
15] As
shown above, the federal spending power is nothing more than the
power to spend. It neither contains nor implies any sovereign
regulatory power to legislate rights and duties with the force of
federal law, and the regulated party’s consent cannot change
that conclusion. The contractual nature of the spending power was
essential to the Government’s defense and this Court’s
approval of far-reaching spending programs; the programs survived
only with that traditional understanding as a premise.[
16] The Federal Government and
private litigants cannot now discard that understanding to argue
that such programs impose obligations directly on the States that
are enforceable against state and local officials under §1983,
without running headlong into the anticommandeering doctrine and
long-recognized limitations on the federal spending power.
* * *
By holding that FNHRA creates rights
enforceable under §1983, the majority creates a grave
constitutional problem that cannot be brushed away with a mere
incantation of
Thiboutot. As explained above, spending-power
legislation cannot “secure” rights “by
law.” Conditions on a State’s receipt of federal funds
are effective, not by virtue of federal law, but by dint of a
federal-state agreement. The very constitutionality of such
conditions depends on their eschewal of securing rights and
imposing concomitant obligations on States.
The line from
Mellon and
Butler,
to
Thiboutot, to this case amounts to a constitutional bait
and switch that cannot continue to be glossed over or ignored. In
holding that spending conditions are not merely contractual, but
can directly impose obligations on the States with the force of
federal law, the Court unravels the very rationale for their
constitutionality. Either conditions in statutes enacted under the
spending power are in the nature of contract terms and do not
secure rights by federal law, or they are unconstitutional because
they exceed the spending power and illicitly commandeer the States.
The consequence of the majority’s rejection of the
contractual understanding is not that spending conditions are
enforceable under §1983. Rather, it is that they are
unconstitutional. It is well past time for this Court to re-examine
Thiboutot and the nature of Congress’ spending
power.