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Health and Hospital Corporation of Marion County v. Talevski/Opinion of Justice Thomas

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Health and Hospital Corporation of Marion County et al. v. Ivanka Talevski, as personal representative of the Estate of Gorgi Talevski, Deceased
Supreme Court of the United States
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4254392Health and Hospital Corporation of Marion County et al. v. Ivanka Talevski, as personal representative of the Estate of Gorgi Talevski, DeceasedSupreme Court of the United States
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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. 12 Stat. 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, 26 Stat. 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.

  1. ↑ This survey merely scratches the surface of the requirements that FNHRA imposes upon participating States. See also, e.g., 42 U. S. C. §1396r(e)(4) (“[T]he State must have implemented and enforced the nursing facility administrator standards developed” by the Secretary for Health and Human Services); §1396r(e)(7)(B)(i)(I) (in the case of mentally ill residents, “the State … must review and determine … whether or not the resident … requires the level of services provided by a nursing facility” or the services of different institutions).
  2. ↑ The power of this tool has grown with the steady increase in federal income-tax revenues since the adoption of the Sixteenth Amendment. Although the Revenue Act of 1913 accounted for only 10% of federal revenue, by 1950, the income tax was the Nation’s largest source of revenue, and, by 2010, it accounted for a whopping 82% of federal revenue overall. E. Jensen, Did the Sixteenth Amendment Ever Matter? Does It Matter Today? 108 Nw. U. L. Rev. 799, 807, n. 44 (2014). This explosion of funds created unprecedented threats to federalism due to the increased use of grants. Federal “[m]onetary grants, so-called grants-in-aid, became more frequent during the 1930’s, and by 1950 they had reached $20 billion or 11.6% of state and local government expenditures.” National Federation of Independent Business v. Sebelius, 567 U. S. 519, 674 (2012) (NFIB) (joint dissent of Scalia, Kennedy, Thomas, and Alito, JJ.) (citation and footnote omitted). “By 1970 this number had grown to $123.7 billion or 29.1% of state and local government expenditures …. As of 2010, federal outlays to state and local governments came to over $608 billion or 37.5% of state and local government expenditures.” Ibid. (footnotes omitted).
  3. ↑ See Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 106 (1989) (“[T]he plaintiff must assert the violation of a federal right. … In deciding whether a federal right has been violated, we have considered whether the provision in question creates obligations binding on the governmental unit” and “whether the provision in question was intended to benefit the putative plaintiff” (alteration and internal quotation marks omitted)); Pennhurst State School and Hospital v. Halderman, 451 U. S. 1, 15, 16, n. 12, 18–19 (1981) (repeatedly using the formula “rights and obligations” correlatively); see also W. Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial Reasoning, 23 Yale L. J. 16, 28–32 (1913). This rule, it should be noted, addresses what it means for private rights to be secured by law, a distinct question from the level of clarity with which Congress must speak before courts may infer that it intended to create such rights. See Gonzaga Univ. v. Doe, 536 U. S. 273, 290 (2002).
  4. ↑ The Articles of Confederation granted Congress only the power to act upon States; it had no power to directly regulate individuals. The Constitution flipped this arrangement by granting the Federal Government the power to regulate individuals directly, but not States. See New York v. United States, 505 U. S. 144, 162 (1992) (“ ‘The people, through [the Constitution], established a more perfect union by substituting a national government, acting, with ample power, directly upon the citizens, instead of the Confederate government, which acted with powers, greatly restricted, only upon the States’ ” (quoting Lane County v. Oregon, 7 Wall. 71, 76 (1869); emphasis deleted)).
  5. ↑ Congress possesses limited powers to directly regulate the States under the Reconstruction Amendments. See, e.g., City of Boerne v. Flores, 521 U. S. 507, 518 (1997). Due to the federalism concerns inherent in such regulation, these enforcement powers are cabined by the congruence-and-proportionality test. Id., at 518–519. The careful tailoring of this exception vividly proves the rule.
  6. ↑ The anticommandeering doctrine protects “political subdivisions” of States against federal cooptation, as well as the States themselves. Printz v. United States, 521 U. S. 898, 935 (1997); see also id., at 931, n. 15 (“[T]he distinction in our Eleventh Amendment jurisprudence between States and municipalities is of no relevance here”).
  7. ↑ For this reason, the mere fact that spending conditions are enacted in statutory form is irrelevant; “not everything in a statute is legally binding.” Hamburger 131; see also D. Engdahl, The Contract Thesis of the Federal Spending Power, 52 S. D. L. Rev. 496, 500 (2007). In other words, while Congress may influence policy “by attaching ‘strings’ to grants of money given to state and local governments, … those strings aren’t laws,” and do not secure rights, in the sense needed to support §1983 liability. United States v. Morgan, 230 F. 3d 1067, 1073 (CA8 2000) (Bye, J., specially concurring); see also Westside Mothers v. Haveman, 133 F. Supp. 2d 549, 581–582 (ED Mich. 2001) (“[N]o interest is ‘secured’ by the federal Medicaid statute. Upon its enactment, this federal law does not vest in a single American the right or privilege of receiving federally-subsidized medical care. … [T]hough passed by both houses of Congress and signed by the President, the Medicaid statute has no force of its own. It is only when a State … accepts the Federal Government’s offer and agrees to participate in the program that any benefits accrue to eligible individuals”), rev’d, 289 F. 3d 852 (CA6 2002).
  8. ↑ One instance in particular demonstrates that the General Welfare Clause is simply a restriction on the Taxing Clause. The Committee of Style slightly altered the text agreed to by the Convention by changing the comma after “Excises” into a semicolon, so that the General Welfare Clause “became an additional power, conjoined to the power to tax, rather than merely a limitation on it.” Hamburger 283. The Convention, however, recognized the alteration and restored the comma, “corroborat[ing] the conclusion that the General Welfare Clause was not an independent power.” Natelson 28.
  9. ↑ After a debate on the Tucker Report, the House approved a resolution declaring Congress’ authority to appropriate money to construct internal improvements pursuant to its enumerated powers, voting down several other resolutions that would have declared a congressional power to make monetary grants to States untethered to any enumerated power and that the Federal Government had the power to itself construct and maintain internal improvements. 32 Annals of Cong. 1381–1389 (1818).
  10. ↑ The anticoercion rule reflected in Butler remains a vital part of this Court’s spending-power jurisprudence. See NFIB, 567 U. S., at 575–585 (opinion of Roberts, C. J.); id., at 671–678 (joint dissent of Scalia, Kennedy, Thomas, and Alito, JJ.). As Butler makes clear, that rule is firmly rooted in the contractual understanding of spending conditions, and NFIB further recognized the close connection between the rule and the anticommandeering doctrine when spending conditions involving States are at issue. See NFIB, 567 U. S., at 575–585 (opinion of Roberts, C. J.); id., at 677–678 (joint dissent). Indeed, the anticoercion rule supplements those doctrines through its recognition of the practical realities of Congress’ modern spending power: Because the Federal Government’s overwhelming fiscal resources enable it to create “gun to the head” situations in which there is no practical possibility of opting out, the rule prevents the Government from purchasing the States’ regulatory powers to implement federal goals that it cannot attain through its own more limited powers. Id., at 581 (opinion of Roberts, C. J.); accord, id., at 677 (joint dissent) (“Congress effectively engages in this impermissible compulsion when state participation in a federal spending program is coerced, so that the States’ choice whether to enact or administer a federal regulatory program is rendered illusory”).
  11. ↑ Justice Sutherland’s dissent recognized that the majority had applied the traditional framework, disagreeing only with its interpretation of how the Social Security Act actually functioned. See Steward Machine Co., 301 U. S., at 611–612.
  12. ↑ This civil rights connection was not arbitrary. Section 1983 originated in the Enforcement Act of 1871, which Congress “passed for the express purpose of ‘enforc[ing] the Provisions of the Fourteenth Amendment.’ ” Thiboutot, 448 U. S., at 25, n. 15 (Powell, J., dissenting) (quoting 17 Stat. 13; alteration in original). Moreover, the original text of the statute referred only to rights “secured by the Constitution of the United States,” 17 Stat. 13, the words “and laws” being added as part of the general 1874 revision of the federal statutes. Rev. Stat. §1979, 42 U. S. C. §1983. Under the circumstances, there is substantial reason to doubt that Congress fundamentally transformed a mechanism to enforce the Reconstruction Amendments into a freestanding right of action to remediate the violation of any federal statute, even those enacted beyond Congress’ civil rights enforcement powers. Importantly, if statutory §1983 actions were confined to laws enacted under Congress’ Reconstruction Amendments enforcement powers—under which Congress may directly regulate States—the commandeering framework might apply differently—or not at all.
  13. ↑ In dissent, Justice Powell set out the textual and historical case for interpreting §1983 to apply only to rights secured by laws enacted under Congress’ enforcement powers. Thiboutot, 448 U. S., at 11; see also Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 623 (1979) (Powell, J., concurring). However, neither the Court, the parties, nor the dissent examined whether, even if they were considered “laws” for §1983 purposes, spending-power provisions could “secure” rights.
  14. ↑ The court below had recognized but avoided the spending-power question by holding that Congress enacted the legislation at issue pursuant to its power to enforce the Fourteenth Amendment. See Halderman v. Pennhurst State School and Hospital, 612 F. 2d 84, 98 (CA3 1979) (“[W]e are not dealing with the implication of a private cause of action from a congressional enactment justified only by the spending power of the federal government, and we need not address the question whether such a statute could ever provide the predicate for private substantive rights. … Congress may, under section 5 [of the Fourteenth Amendment], establish certain restrictions that might otherwise implicate the prerogatives of the states”). The petitioners in Pennhurst squarely recognized that, if the legislation at issue was predicated on the spending power alone, “Congress exceeded the limits of that power.” Brief for Petitioners, O.T. 1980, No. 79–1404, etc., p. 36, n. 57.
  15. ↑ Many litigants have recognized the constitutional problems. See, e.g., Brief for Petitioner in Gonzaga Univ. v. Doe, O. T. 2001, No. 01–679, p. 42, n. 14 (“Nor is it clear that the conditions in Spending Clause legislation qualify as ‘laws’ under §1983. Such conditions only become operative when the contract is accepted by a recipient; it is the resulting contract, not the federal legislation itself, that gives rise to obligations and allegedly enforceable rights”); Brief for Petitioner in National Collegiate Athletic Assn. v. Smith, O. T. 1998, No. 98–84, p. 3; Brief for United States as Amicus Curiae in Suter v. Artist M., O. T. 1991, No. 90–1488, p. 12, n. 6.
  16. ↑ Ironically, decades after it expressly disclaimed the pre-emptive effect of spending conditions in defending their constitutionality, see supra, at 26–28, the Federal Government argued the exact opposite in Gonzaga: “The Act of Congress establishing the program remains binding law with the full force and preemptive authority of federal legislation under the Supremacy Clause, and thus falls squarely within the ‘laws’ covered by Section 1983 and is fully capable of ‘secur[ing]’ rights.” Brief for United States as Amicus Curiae in No. 01–679, p. 19 (alteration in original). With this reversal, the Government unwittingly argued that spending conditions are unconstitutional.
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