The Volokh Conspiracy

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New York v. United States and Nance v. Ward

Section 1983 should not be read to impose obligations on state legislatures to enact legislation.


Under the Supreme Court's Eighth Amendment jurisprudence, death row inmates have the burden to identify alternative methods of execution that would significantly reduce the risk of pain. And Bucklew v. Precythe (2019) held that prisoners may request a "well-established protocol authorized"–even if that protocol methods are not authorized under state law. Today, several states authorize the firing squad as a method of execution. And, all agree that the risk of pain from a firing squad is far less  than the risk of pain from lethal injection. Moreover, a firing squad is far simpler to establish than the elaborate lethal injection protocols.

In the wake of Bucklew, imagine that Congress enacts the following law: all states that permit the death penalty are required to adopt the firing squad as an alternative method of execution. Would this federal law be constitutional? In my view, such a law runs afoul of New York v. United States. Specifically, this federal law commandeers the state legislatures to enact specific legislation, and commandeers the state executives to sign that legislation into law. Such a law would not be a "proper" exercise of federal power because it intrudes upon state sovereignty. (New York, as well as Printz, are Necessary and Proper Clause cases; the Tenth Amendment is only involved indirectly.)

That hypothetical brings us to Nance v. Ward. A Georgia death row inmate wanted to be executed by firing squad. Georgia law authorizes the lethal injection, but does not permit the firing squad. Indeed, to accommodate the prisoner's request, the state legislature would have to enact a new statute, which the governor would have to sign. Then, the state administrative agencies would have to adopt regulations to implement the statute. The Eleventh Circuit, in an opinion by Chief Judge William Pryor, held that the prisoner could not use Section 1983 to accomplish that goal. Indeed, Pryor specifically invoked New York v. U.S.:

If we sanction Nance's decision to proceed under section 1983 by refusing to take the State's law as fixed, we must effectively interpret Nance's complaint as a request for an injunction directing the State to either enact new legislation or vacate his death sentence. By doing so, we invite a collision with more than the habeas statute. Cf. New York v. United States (1992).

Justice Barrett, in her only principal dissent this past Term, echoed Pryor's claims.

The Court finds a way around those requirements with a theory at odds with the very federalism interests they are designed to protect: that an injunction barring the State from enforcing a sentence according to state law does not really bar the State from enforcing the sentence because the State can pass a new law. Unlike the Court, I would take state law as we find it in determining whether a suit sounds in habeas or §1983.

Yet, the majority accepted the prisoner's claim. Indeed, Justice Kagan's majority opinion reads Section 1983–enacted over 150 years ago–as if it mirrored the hypothetical statute I described above.

She breezily assumes that the George legislature can approve the firing squad:

Nance's requested relief still places his execution in Georgia's control. Assuming it wants to carry out the death sentence, the State can enact legislation approving what a court has found to be a fairly easy-to-employ method of execution. To be sure, amending a statute may require some more time and effort than changing an agency protocol, of the sort involved in Nelson and Hill.

Berger v. NC State Conference of the NAACP identifies some of the conflicts that arise when the executive branch and legislative branch of a state are not on the same page.

What authority does Kagan cite to support this proposition?

The Court of Appeals posited that "it is not [a federal court's]place to entertain complaints under section 1983" that would compel a State to change its capital punishment law.981 F. 3d, at 1211; see post, at 3. Except that sometimes it is. One of the "main aims" of §1983 is to "override"—and thus compel change of—state laws when necessary to vindicate federal constitutional rights. Monroe v. Pape, 365 U. S. 167, 173 (1961); see Zinermon v. Burch, 494 U. S. 113, 124 (1990). 

Did Monroe really say Section 1983 empowers Courts to "'entertain complaints under section 1983' that would compel a State to change its capital punishment law'"? Here is the relevant passage from Justice Douglas's majority opinion:

The legislation—in particular the section with which we are now concerned—had several purposes. There are threads of many thoughts running through the debates. One who reads them in their entirety sees that the present section had three main aims. First, it might, of course, override certain kinds of state laws. Mr. Sloss of Alabama, in opposition, spoke of that object and emphasized that it was irrelevant because there were no such laws: 'The first section of this bill prohibits any invidious legislation by States against the rights or privileges of citizens of the United States. The object of this section is not very clear, as it is not pretended by its advocates on this floor that any State has passed any laws endangering the rights or privileges of the colored people.'

The word "override" simply referenced preemption. That is, the Ku Klux Klan Act would override contrary state laws–whether embodied in statute, state constitutional law, or common law. Zinermon, which Kagan also cites, makes this point:

In Monroe, this Court rejected the view that § 1983 applies only to violations of constitutional rights that are authorized by state law, and does not reach abuses of state authority that are forbidden by the State's statutes or Constitution or are torts under the State's common law.

Kagan's extension–"and thus compel change of"–does not find any direct support in Monroe. Justice Kagan is usually very careful with precedent, but her citation of Monroe here is loose. Really, the entire opinion turns on this single passage, which lacks support.

Next Kagan makes a related point: after a Section 1983 defeat, the state may have to rewrite a statute.

Or said otherwise, the ordinary and expected outcome of many a meritorious §1983 suit is to declare unenforceable (whether on its face or as applied) a state statute as currently written. See, e.g., Cedar Point Nursery v. Hassid, 594 U. S. ___ (2021). And in turn, the unsurprising effect of such a judgment may be to send state legislators back to the drawing board. See, e.g., Kolender v. Lawson, 461 U. S. 352, 358 (1983).

(Someone is still smarting from Cedar Point.) But choosing to rewrite a statute is different than saying that 1983 "compel[s]" the legislature to preemptively take action. Here, if Georgia takes no action, Section 1983 would be understood to prohibit it from performing any executions. The state is stuck between a rock and a Kagan place.

For the reasons Judge Pryor identified, Kagan's reading of Section 1983 would run into the anti-commandeering principle. Because the text does not command–or even hint–at that result, the statute should not be read to "compel" such a result. The majority opinion in Nance is faulty. Alas, Chief Justice Roberts and Justice Kavanaugh went along with the Kagan-three, thus forming a 5-4 majority opinion.

Yet, the final passage of Nance is a John Roberts special: rule for the prisoner who cannot benefit from the rule.

Finally, all §1983 suits must be brought within a State's statute of limitations for personal-injury actions. See Wallace v. Kato, 549 U. S. 384, 387 (2007). Here, the District Court held Nance's suit untimely under that limitations period. See No. 20–cv–00107 (ND Ga., Mar. 13,2020), ECF Doc. 26, p. 12; supra, at 4. The Eleventh Circuit did not review that holding because it instead reconstrued the action as a habeas petition. Now that we have held that reconstruction unjustified, the court on remand can address the timeliness question, as well as any others that remain. 

This sort of whiplash if the Chief's trademark. Indeed, many Section 1983 suits of these sorts will be time-barred. If ever the price of a fifth vote.