Codifiers' Errors and 42 U.S.C. 1983

with relevance to both a 1980 precedent and a recent article by Alex Reinert

Last week's Supreme Court decision in Health & Hospital Corp. of Marion County v. Talevski is an interesting case about causes of action to enforce legislation adopted under Congress's spending power, and prompted an especially interesting dissent from Justice Thomas about the basis and nature of the spending power that I commend to students of structural constitutional law. But one other interesting thing about it is that it reaffirmed the validity of a 1980 case called Maine v. Thiboutot.

What is Thiboutot and why is it interesting?

The federal statute for enforcing constitutional rights, 42 U.S.C. 1983, which was passed as Section 1979 of the Revised Statutes of 1874, reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory . . .  subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .

While people had long used the statute to enforce federal constitutional rights, the fact that the statute says "rights . . . secured by the Constitution and laws," combined with the Court's increasingly stingy approach to implied causes of action to enforce federal statutes, prompted the question: can Section 1983 also be used to enforce federal statutory rights? In Thiboutot, in an opinion by Justice Brennan the Court said: sure, that's what it says! 

What makes this interesting is that while this is indeed what the text says, the text probably reflects a mistake that was not originally intended by Congress. When Congress first passed the statute in 1871, it referred only to constitutional rights. A few years later, Congress added the "and laws" basically by accident.

How did this happen?

To make a long story short, until the 1870s, all federal public laws that had ever been passed were just recorded in chronological order, in a series of books called the Statutes at Large. If you wanted to figure out exactly what the law said about something, you would have to find all of the relevant statutes on the topic that had been passed over time, and then piece them together to see what had repealed or amended what and what was still in force. Congress decided to make the law clearer by supporting an official codification of federal law, where they would hire an expert to go through all of the statutes, figure out what had amended or repealed what, and then put them in to one more-easily-understood book organized by topic rather than simply in chronological-chain-novel fashion. These were the Revised Statutes of 1874, which were passed by Congress and repealed all previous public laws, so as to be the new Official Statutory Law of the United States.

The problem is that it is very very hard to actually go through all of the statutes, figure out what had amended or repealed what, and then put them in to one more-easily-understood book organized by topic rather than simply in chronological-chain-novel fashion. On one hand, Congress had instructed the revisers not to make substantive changes to the law -- they were just supposed to take the existing law and put it all together. On the other hand, the revisers did sometimes make substantive changes. Sometimes this was unavoidable, because the relationship between existing laws was ambiguous. Sometimes it was just a mistake.

Adding "and laws" to what is now Section 1983 was probably an example of a mistake, but Congress passed the Revised Statutes nonetheless, so there it is. (You can read the opinion in Thiboutot, and an earlier concurring opinion by Justice Powell and other sources cited there if you want the full gory details.)

So what are we supposed to do about this? On one hand, the text says what it says. On the other hand, it is clear that the text was not supposed to introduce a major substantive change of this type. Even textualists generally recognize a doctrine of the "scrivener's error" where the error is sufficiently clear. But in fact the problem of the "codifier's error" is probably more common as a practical matter -- there are numerous examples of these changes in the Revised Statutes and again in the later codifications of the U.S. Code. Sometimes the courts ignore the revision on the ground that it is a mistake, but other times they follow the new, mistakenly revised, text. Thiboutot is a stark example of the latter, and it looks like today's Court is happy to stand by it.

This brings me to one more example which has been making the rounds lately, highlighted in a recent article by Alex Reinert, called Qualified Immunity's Flawed Foundation. Reinert points to a phrase that was part of the original 1871 statute ("any such law, statute, ordinance, regulation, custom or usage of the state to the contrary notwithstanding") and argues that this phrase provides further evidence that Section 1983 is supposed to displace any common law doctrines of qualified immunity. Judge Willett called this argument "game-changing,"  suggesting that "courts have been
construing the wrong version of § 1983 for virtually its entire legal life." It was written up in The New York Times by Adam Liptak ("16 Crucial Words That Went Missing From a Landmark Civil Rights Law"), and naturally enough, a lot of people are now intrigued by this argument.

But here's the thing. That phrase "went missing" in the exact same way that "and laws" appeared in Section 1983 -- it was a change introduced by the drafters of the 1874 Revised Statutes, and passed into law by Congress. So this is not one of those cases where the text of the U.S. Code fails to report the actual law passed by Congress. This is a case where Congress itself passed a law that probably made a mistake, making substantive changes to the text when the revision was not supposed to do so. It is, in other words, the same case as Maine v. Thiboutot.

(To be clear, Reinert makes other interesting arguments against qualified immunity in his article, such as a discussion of the "non-derogation canon," and he does acknowledge in his article that this phrase was repealed in the 1874 revision, although he is not as clear about that as I would have liked. But I'm emphasizing this issue here because I've talked to enough people for whom this point seems to need clarification.)

Now I am no fan of qualified immunity. But if Maine v. Thiboutot was right to enforce the enacted text of the Revised Statutes contained in Section 1983, then courts are also presumably also right to ignore the phrase that Congress repealed in 1874. Those who are excited to pick up on this argument should think carefully about the statute, and about the problem of codifiers' errors, before they get too excited.