The Volokh Conspiracy

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Justice Thomas's Dissent in Health and Hospital Corp. of Marion County v. Talevski

A thorough originalist analysis of the "so-called Spending Clause" that casts Thiboutout in doubt.


Today, I'm sure most Supreme Court watchers are cracking Allen v. Milligan or downing Jack Daniel's v. VIP. Fair enough. But the most significant writing to emanate from the Court today was Justice Thomas's dissent in Health and Hospital Corporation of Marion County v. Talevski. The facts are, well, boring: can a citizen sue a county-owned nursing home under 42 U.S.C. §1983 for violating the Federal Nursing Home Reform Act. Section 1983 provides a cause of action when a state actor deprives a person of "any rights . . . secured by the Constitution and laws."  FNHRA is spending legislation, in which the federal government offers money to the states with certain conditions. Is  FNHRA a "law" for purposes of Section 1983?

Eight members of the Court found that the FNHRA was a "law" for purposes of Section. Justice Gorsuch wrote a brief concurrence that questioned "whether legal rights provided for in spending power legislation like the [FNHRA] are 'secured' as against States." Gorsuch also questioned the relationship between such spending legislation and the Constitution's anti-commandeering doctrine. But Gorsuch found that the Petitioners "failed to develop fully" those arguments.

Justice Thomas, however, wrote a thirty-five page dissent that thoroughly addressed both issues. Here is Thomas's introduction, which sketches the argument:

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 underCongress' 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.

The dissent provides a careful analysis of the so-called Spending Clause from the Constitutional Convention, through the debates over the first Bank of the United States with Hamilton and Jefferson, through the vetoes by Presidents Madison and Monroe, through the Progressive Era, through the New Deal, and into the modern era. The opinion in scholarly, thorough, and persuasive. In addition to providing a torrent of primary sources, Justice Thomas cites scholarship by Robert Natelson, Phillip Hamburger, David Engdahl, Gary Lawson, and other prominent originalists. If you want to understand the genesis of the spending power, read Thomas's dissent.

This dissent reminds us, for the umpteenth time, that Justice Thomas is playing in a league of his own. The other Justices try their level best to apply longstanding doctrine to complicated cases. But Justice Thomas, at every opportunity, starts from first principles, and urges us to reconsider everything. And these opinions will ripple out for years to come.

Going forward, I am confident state actors will take note of Justice Thomas's dissent, and challenge whether Section 1983 provides a cause of action for violation of spending legislation. Thomas explains:

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.

Justice Brennan's decision in Maine v. Thiboutot (1980), which "discard[ed] nearly two centuries of settled spending-power doctrine," should not be long for this world.