Both the Sword and the Purse

State Governments and Statutory Rights in the Rehnquist Court

 

R. Shep Melnick Thomas P. O’Neill, Jr. Professor Political Science Department Boston College Prepared for presentation at the 2002 Convention of the American Political Science Association August 30, 2002

1

Federalism lies at the heart of the jurisprudence of the Rehnquist Court. For the

first time since the 1930s the Court has limited Congress’s power under the Commerce

Clause and section 5 of the Fourteenth Amendment.1 The Supreme Court has

significantly curtailed the federal judiciary’s supervision of criminal proceedings in state

court and the treatment of those confined to state prisons.2 It has limited the federal

government’s authority to “commandeer” states’ administrative apparatus.3 In a series of

decisions announced between 1996 and 2002 the Court has brought state sovereign

immunity under the Eleventh Amendment back from the dead.4 And in a variety of

contexts it has refused to impose federal mandates on state governments unless

Congress has provided a “clear statement” of its intent.5 The vote on most of these

decisions was 5-4, leading admirers and critics alike to describe Rehnquist, O’Connor,

Kennedy, Scalia, and Thomas as the “Federalist Five.”

How significant these new doctrines will prove in practice is the subject of

considerable debate. Academic opinion ranges from dire warnings of the return of

antebellum states’ rights and nullification to fatalistic assertions about the Court’s

inability to halt the inevitable nationalization of American politics. Even the Justices

admit to uncertainty about the practical significance of their rulings. Near the end of a

2002 opinion explaining why the Eleventh Amendment prevents private parties from

“hauling” a state agency before the Federal Maritime Commission (FMC), Justice

Thomas agreed with the Solicitor General that the Court’s ruling would have “little

practical effect on the FMC’s enforcement of the Shipping Act.” This did not satisfy

2

Justice Breyer, who remained uncertain of whether “the consequences of the Court’s

approach [will] prove anodyne, as I hope, rather than randomly destructive, as I fear.”6

It is reasonable to suspect that not all the Court’s federalism will turn out to have

equally practical significance. For example, it is likely that the decisions that have

received most public and scholarly attention—those limiting Congress’s authority under

the Commerce Clause—will not have much long-term effect on public policy. The

federal government never made much of an effort to keep guns out of “school zones” or

to nationalize domestic violence and rape law. Moreover, the Court’s definition of

interstate commerce remains very broad, and the difficulties associated with

constructing judicially manageable and politically acceptable limitations on

congressional powers are probably insurmountable, especially for a coalition with a bare

majority.7 The Court may exert more influence by adopting narrow interpretations of

federal laws that approach the outer limits of congressional authority.8 This strategy of

requiring Congress to take a “sober second look” at some extensions of federal power

not only avoids open conflict between coequal branches of government, but allows

liberals and conservatives on the bench to find common ground.9

The Court’s effort to reduce federal supervision of state courts and prisons by

curtailing the use of habeas corpus petitions, in contrast, seem to have been largely

successful.10 Not only is this a matter peculiarly within the bailiwick of the judicial

branch, but the 104th Congress passed two pieces of legislation—the Prison Litigation

Reform Act and the oddly named Anti-Terrorism and Effective Death Penalty Act—that

reinforced the position of the Federalist Five. So far Democrats in Congress have

made no effort to revise these products of the Gingrich years.

3

The central argument of this paper is that if the Federalist Five is able to retain its

hold on the Court, one of its most important accomplishments will be to reduce

substantially the extent to which federal judges can use suits brought by private parties

to impose statute-based mandates on state and local governments. I recognize that the

immediate response to this assertion is likely to be either “So what?” or “Who cares?”

Consequently, a major task of this paper will be to why private suits to impose statutory

mandates on subnational governments are so important to Supreme Court justices,

state and local officials, advocacy lawyers—and the daily operation of federalism. The

paper will do so by examining two sets of cases in detail: those dealing with federal

welfare laws and those interpreting Title VI of the Civil Rights Act of 1964. In each

instance the paper will show how such suits have shaped public policy over the past 35

years and how decisions of the Rehnquist Court have limited the opportunities for

private parties to file these suits in the federal courts.11

National Rules and Subnational Governments

In order to understand the importance of statutory cases brought by private

citizens against state and local governments, it is necessary to think about how the

federal government induces subnational governments to comply with national rules and

the conditions of federal grants. Since 1960 the number and complexity of such federal

laws and regulations has grown enormously. From health care to environmental

protection, civil rights to welfare, education to Social Security, transportation to disability

policy, federal money and rules touch our lives on a daily basis. Yet over these

decades the number of civilians employed by the federal government has actually

4

declined. Meanwhile, the workforce of state and local governments has grown by leaps

and bounds. State and local governments provide almost all the “street-level

bureaucrats” who carry out programs established—and partially funded—by the national

government. Public school teachers, police, welfare administrators, highway engineers,

health and safety inspectors, public health officials—all are employed by subnational

governments but subject to a wide variety of federal rules.

How do federal officials ensure that their state and local counterparts follow

these rules and spend federal funds properly? An important feature of American

government is that federal officials cannot issue direct commands to state and local

administrators. They cannot hire, fire, or reassign the thousands of “street-level

bureaucrats” on whom they rely so heavily. Of course, the federal government can use

money to encourage programs it likes and to starve those it would like to scale back.

Federal administrators can try to develop close ties with like-thinking professionals in

state and local governments. As useful as all these tools can be for establishing the

general direction of policy, they are not designed to ensure that each and every federal

rule is followed or, more importantly, that each potential beneficiary receives the

treatment promised by federal law.

In many instances federal officials have the authority to cut off funding to state

and local programs that fail to comply with federal law. This strategy underlies both

grant-in-aid programs (such as AFDC/TANF, Medicaid, highway and mass transit

programs, and various programs established by the Elementary and Secondary

Education Act) as well as the so-called “cross-cutting” regulations that apply to all

recipients of federal financial assistance (most notably Title VI of the Civil Rights Act of

5

1964, Title IX of the Education Amendments of 1972, and section 504 of the

Rehabilitation Act of 1973). But we know that federal administrators are reluctant to

impose such sanctions. Not only do funding cut-offs invite intense political opposition,

but they create friction between federal and state administrators and endanger the

programs these administrators are trying to promote. Moreover, most conditional

spending laws require “substantial” non-compliance before funds can be terminated. In

the early years of a program federal administrators might be able to use the threat of

fiscal sanctions to achieve major policy change; but over time the effectiveness of such

threats fades. Similar problems frequently plague federal regulatory programs

administered by the states: the penalty for failure to follow federal rules is usually a

federal take-over of enforcement; but the federal government seldom has the resources,

expertise, or political will to displace state regulators. Cross-cutting regulations present

an additional problem: the federal officials charged with enforcing the cross-cutting

rules are not the ones charged with supervising the programs in question.

Administrators in, say, the Department of Transportation will be reluctant to reduce

transportation funding to enforce rules announced by the Department of Justice.

Another potential enforcement tool—one that is both more focused and more

credible—is a lawsuit brought by the United States against state and local governments.

Federal administrators may not be able to issue direct orders to state and local officials,

but federal judges most definitely can. And frequently do. As city councilors in

Yonkers, New York learned a few years ago, public officials who ignore federal court

injunctions can be held in contempt of court, fined, and even imprisoned. Hamilton’s

famous claim that the judiciary “has no influence over the sword or the purse”12 ignores

6

a key feature of American federalism: federal judges can use their injunctive sword—

backed by an army of federal administrators and, ultimately, the guns of US Marshals—

to control the purse strings of state and local governments. As state and local officials

know (but political science professors are for some reason loathe to admit), federal

judges routinely issue such orders, and state and local officials routinely obey.

The federal courts have long recognized the authority of the United States to

file suit against either private parties or subnational governments to enforce the terms of

federal laws. Private parties may need statutory authority to file federal court suits, but

the government does not.13 Nor does the Eleventh Amendment’s limitation on suits

against state governments apply to the US. Federal judges have power to issue

commands to state officials; federal administrators have both the authority to initiate

litigation and the capacity to monitor compliance: the combination would thus appear to

constitute a highly effective compliance mechanism.

Yet outside school desegregation and voting rights the United States

government does not often go to court to insist that subnational governments comply

with federal mandates. Perhaps this is because such litigation normally must go

through the Department of Justice, which is both risk-averse and perpetually shorthanded.

Perhaps federal administrators worry about disrupting relations with their state

counterparts. Perhaps political executives worry about the political fallout of such a

visible and adversarial stance. Or perhaps it is simply easier to let private parties take

the initiative--and the political heat.

Thus we arrive at the enforcement mechanism that is the focus of this paper:

private suits against subnational governments for failure to comply with federal rules.

7

Private rights of action, whether against subnational governments or private parties, add

significantly to the enforcement resources available to the federal government. Private

rights of action offer those with the greatest stake in government decisions and the most

knowledge of the circumstances—for example, welfare recipients denied benefits,

students subjected to sexual harassment, or employees who were the victims of racial

discrimination—the opportunity to lodge a complaint, demand compliance, and receive

financial compensation. Whether a homeless schizophrenic or an university professor,

the plaintiff can have his day in court, fight city hall, and vindicate his rights.

Private rights of action, though, are not without their drawbacks. Enforcement

mechanisms inevitably alter the balance of power between levels of government.

Congress might want to preserve a significant amount of state and local discretion, and

thus may limit federal sanctions to instances of “substantial” non-compliance.

Moreover, since complete enforcement is seldom either possible or desirable, private

rights of action give private parties the power to set public priorities. In criminal law we

rely entirely on public prosecutors to decide which cases are worth pursuing. We do not

want the enforcement of criminal law to depend on the litigiousness or vindictiveness of

private parties. Public prosecutors are politically accountable in the way that private

parties are not.

Private rights of action also make enforcement of federal requirements highly

decentralized and unpredictable. The extent of compliance will vary from state to state

and even from city to city, depending on the inclination of judges and the resources and

litigiousness of interest groups. Such variation can at times become extreme, creating

8

serious problems for federal officials charged with administering federal law in a uniform

manner.14

Finally, and probably most importantly, enforcing a law or regulation is

inextricably linked with interpreting that law or regulation. This means that private rights

of action give federal judges the opportunity to determine the content of federal

mandates. Many federal requirements are inherently ambiguous: What does it mean to

“discriminate” on the basis of race, gender, or disability? What constitutes “available”

income, “reasonable and adequate” reimbursement, or an “appropriate” education?

Some judges will defer to federal administrators’ interpretation of these terms. Some

will defer to the interpretation offered by state officials. Some will do neither. Some

judges will look only at the text of the federal statute, others at its legislative history or

general purpose. Some will favor broad interpretations of statutory entitlements; others

will be hesitant to increase financial burdens on subnational governments. Most of the

time this discretion will be exercised not by the Supreme Court but by district and circuit

court judges.

In a recent dissent in an Eleventh Amendment case, Justice Stevens wrote,

“This case is about power—the power of the Congress of the United States to create a

private federal cause of action against a state, or its Governor, for the violation of a

federal right.”15 That case involved the question of whether a private right of action

explicitly created by Congress was compatible with the sovereign immunity of state

governments the Court has found implicit in the Eleventh Amendment. Many other

cases involve the power of the courts to recognize “implied” private rights of action, i.e.

those not specifically created by a federal statute. Recognizing a private right of action

9

extends significantly the power of the national government over the states. Refusal to

recognize a private right of action, in contrast, reduces the power of groups claiming

benefits under the federal law. Whenever a court does recognize a private right of

action against a subnational government, it must decide how much interpretive authority

to cede to the federal agency charged with administering the program and how much to

retain for itself. In short, all these cases raise important questions about the distribution

of power within our complex constitutional system.

Judges confronting these issues almost always claim to base their decisions

on the language, structure, and history of the particular federal statute before them. But

behind their investigation of each statute usually lie strongly held presumptions about

the nature of federalism and the role of the courts. As Richard Fallon has shown in his

convincing analysis of federal court law, a key premise of the “Nationalist” position is

that “Absent clear evidence of contrary legislative intent, there should be a presumption

in the construction of jurisdictional statutes that Congress generally legislates

sympathetically to federal rights by authorizing easy access, as of right, to the lower

federal courts.”16 Federalists, in contrast, tend to view laws governing federal-state

relations, especially those creating grant-in-aid programs, as “in the nature of a

contract.”17 This means that states are bound only by requirements clearly announced

in the text of federal statutes, and that states can be subjected to private suits only

when Congress has made this an explicit part of the deal. Whether the overt legal

debate focuses on waiver of sovereign immunity under the Eleventh Amendment, the

relationship between two sections of the Ku Klux Klan Act of 1871, or whether Title IX

incorporated judicial practices current in 1972, the underlying issue is the proper

10

distribution of constitutional authority. One thing both sides can agree upon is that in

making these decisions federal judges are strategically well positioned to affect the

distribution of power between the national government and the states.

Rising Actions

Private suits against state and local governments claiming violations of federal

statutes were extremely rare before 1960 but commonplace by 1970. We do not have

adequate statistics for this class of cases. But we do know that before 1960 there were

only a handful of federal cases involving grant-in-aid programs.18 Cross-cutting

regulations, cross-over sanctions, and partial pre-emption statutes—the source of much

of the intergovernmental litigation since the mid-1960s—were virtually unknown. Most

private suits against subnational governments today are brought under 42 USC § 1983,

which authorizes federal courts to issue injunctive relief and assess damages against

any person “who, under color of any statute, ordinance, regulation, custom or usage, of

any State” deprives another of “any rights, privileges, or immunities secured by the

Constitution or the laws” of the United States In 1960 fewer than 300 such cases were

filed in district court, almost all of them claiming deprivation of constitutional rights.

Excluding cases filed by prisoners, the number of §1983 cases rose to 13,000 in 1977,

almost 25,000 in 1992, and over 32,000 in 1994.19 From 1935 to 1967 AFDC

beneficiaries had not won a single case in federal court. But over the next eight years

the Supreme Court alone decided 18 AFDC cases, most of which were won by welfare

recipients. The lower courts heard hundreds of AFDC cases, and required states to

11

adjust virtually every aspect of the program.20 The same thing happened in many other

programs.

Why the sudden shift? One contributing factor, obviously, was the surge of

legislative activity that began in 1964 and continued throughout the 1970s. The number

of grant-in-aid programs, the amount of money involved, and the number of “strings”

attached to them all grew enormously. Title VI of the Civil Rights Act, the first of the

“cross-cutting” rules, prohibited racial discrimination in any program or activity receiving

federal funds. It was soon “cloned” (to use Hugh Davis Graham’s apt term21) to prohibit

gender discrimination in federally financed education programs (Title IX) and

discrimination against the disabled (§504). The “social regulation” of the 1970s both

delegated massive regulatory duties to the states, and placed obligations and

restrictions on state and local governments in their roles as polluters and land

managers. Federal laws that had previously protected only private employees were

extended to state, county, and municipal employees, e.g. Title VII of the Civil Rights Act

in 1972 and the Federal Labor Standards Act in 1974. The new agencies created to

administer these programs generated reams of detailed federal regulations.

A second factor was that many of the beneficiaries of these programs could

now find lawyers to represent them. By the mid-1960s civil rights lawyers, Legal

Services attorneys, and other “cause” lawyers were actively looking for clients. These

lawyers soon realized, though, that getting cases against state and local governments

heard in federal court would not be easy. In the words of a frequently cited law review

article, “A major goal of this movement has been to secure federal judicial review of

federally supported, state welfare programs. The path to the federal courts is, however,

12

strewn with a number of potential obstructions.”22 This new breed of lawyers did a

remarkable job convincing judges to change rules on jurisdiction and relief. In 1990 the

former research director for the Legal Services Corporation wrote,

Today, advocates take for granted that individuals can assert rights under

federal statutes and regulations that were designed to protect or assist them.

But when King v. Smith was decided [in 1968], this was novel. King radically

changed poverty law by providing remedies in federal and state courts for

decisions by administrators of AFDC, public housing, and other public benefits

programs.23

Over the past decade Legal Services attorneys have been fighting—often

unsuccessfully—to preserve the victories they won in the 1960s and 1970s.

A third and crucial factor was the Warren Court receptivity to these innovative

arguments about the role of the federal courts. The Supreme Court began to relax

jurisdictional barriers a few years before the events described in the preceding

paragraphs. Three cases decided between 1961 and 1964 demonstrate the Court’s

readiness to entertain new claims and to monitor state and local officials: Monroe v.

Pape, J.I. Case Co. v. Borak, and Parden v. Terminal Railway of the Alabama State

Dock Department. None of these cases were part of an organized litigational campaign.

Indeed it is unlikely that anyone saw much of a connection among them: one was a tort

suit brought against rogue Chicago cops; another a stockholder suit against a company

engaged in a corporate take-over; the third a wrongful death claim against a railroad

owned by Alabama. Taken together they illustrate how impatient the Warren Court was

with jurisdictional barriers and states’ claims of immunity from federal suit.

Before examining these cases in detail, it is important to emphasize a major

difference between state courts and federal courts: the former are courts of general

13

jurisdiction while the latter are courts of limited jurisdiction. In his hornbook on Law of

Federal Courts, Charles Alan Wright explains the significance of this difference:

Most state courts are courts of general jurisdiction, and the presumption is that

they have jurisdiction over a particular controversy unless a showing is made to

the contrary. The federal courts, on the other hand, cannot be courts of general

jurisdiction. They are empowered to hear only such cases as are within the

judicial power of the United States, as defined in the Constitution, and have been

entrusted to them by a jurisdictional grant by Congress.

Because of this unusual nature of the federal courts, and because it would be not

simply wrong but indeed an unconstitutional invasion of the powers reserved to

the states if those courts were to entertain cases not within their jurisdiction, the

rule is well settled that the party seeking to invoke the jurisdiction of a federal

court must demonstrate that the case is within the competence of such a court.

The presumption is that the court lacks jurisdiction in a particular case until it has

been demonstrated that jurisdiction over the subject matter exists. 24

The jurisdiction established by federal statutes has always been more

circumscribed than the maximum allowed under the Constitution. Although it seems

remarkable today, Congress did not pass legislation giving federal courts subject-matter

jurisdiction over cases involving federal law until 1875. Congress has also established

amount-in-controversy minimums: in the 1960s and 1970s the federal courts ordinarily

could not hear cases involving less than $10,000, which excluded most claims for

welfare benefits.25 Many grant-in-aid statutes provided for administrative hearings to

determine whether a state had complied with federal requirements, and allowed states

to seek judicial review of federal administrative decisions to terminate funding. But they

seldom explicitly authorized suits—or any other form of participation—by recipients.

This made it difficult to argue that Congress had intended to allow beneficiary to

challenge state laws or regulations in federal court.

The first and best known of the three cases listed above was Monroe v. Pape.26

An African-American family sought damages under 42 USC §1983 after Chicago

14

policemen had illegally entered their house without a warrant, abused them, and

incarcerated the father. This now-famous section of the Ku Klux Klan Act of 1871 had

seldom been invoked since the end of Reconstruction. After a review of the Act’s

legislative history Justice Douglas concluded that the phrase “under color of any statute,

ordinance, regulation, or usage, of any State” is broad enough to include actions taken

by state officers invoking their official authority even if these actions are unauthorized or

forbidden by state law. This opened the federal courthouse door to thousands of

constitutional tort actions against state officials. The Supreme Court further held that

plaintiffs need not exhaust state remedies, but can proceed directly to a federal forum.

Justice Frankfurter was the sole dissenter. He criticized Douglas for treating the

case as a “mine-run statutory question” and for understating the extent to which the

case involved “a basic problem of American federalism: the relation of the Nation to the

states in the critically important sphere of municipal law administration.” State courts

can deal adequately with tort claims such as this, Frankfurter maintained, and federal

judges should be wary of altering the balance between state and federal power without

a clear mandate from Congress:

[R]espect for principles which this Court has long regarded as critical to the most

effective functioning of our federalism should avoid extension of a statute beyond

its manifest area of operation into applications which invite conflict with the

administration of local policies. Such an extension makes the extreme limits of

federal constitutional power a law to regulate the quotidian business of every

traffic policeman, every registrar of election, every city inspector or investigator,

every clerk in every municipal licensing bureau in the country.27

The statistics on §1983 suits cited above suggest that this was no idle concern.

Monroe v. Pape indicates the willingness of almost all members of the Warren

Court to use ambiguous legislation to extend the jurisdiction of the federal courts to

15

novel causes of action against state officials—especially in cases with racial overtones.

But the decision was limited in two important ways. First, Douglas’s opinion explicitly

exempted municipalities from the reach of §1983. It wasn’t until seventeen years later

that the Supreme Court extended §1983 to cities, school districts, and other local

bodies.28 Second, Monroe v. Pape involved a constitutional claim, not a violation of a

federal statute. Not until Maine v. Thiboutot in 1980 did the Court apply §1983 to rights

secured by all federal laws.29 Both extensions of Monroe v. Pape were written by

Justice Brennan, who for thirty years was the Court’s most fervent advocate of federal

supervision of state and local officials.

The second decision, J.I. Case Co. v. Borak, was short and unanimous. The

Securities and Exchange Act of 1934 established rules relating to corporate proxy

statements. It authorized the federal government to file suit against violators, but was

silent on the right of stockholders to sue for damages. Justice Clark did not spend

much time examining legislative history or ruminating about the proper role of the

federal courts. He simply asserted that the purpose of the statutory provision in

question was to prevent the use of deceptive proxy statements and that “private

enforcement of the proxy rule provides a necessary supplement to the [Security and

Exchange] Commission’s action.” The SEC is not able to review all proxy statements in

a timely manner. Moreover, “the possibility of civil damages or injunctive relief serves

as a most effective weapon in the enforcement of proxy requirements.” If the federal

courts were to close the door to implied private rights of action and rely on the SEC and

state courts to enforce the law, “the whole purpose of the section might be frustrated.”30

16

Three assumptions underlay the court’s perfunctory opinion. First, the more

enforcement the better. Second, federal courts should assume that Congress has

authorized a private right of action unless the statute clearly indicates otherwise. This

reversed the usual assumption about the limited jurisdiction of federal courts. Third, the

federal courts should strive not simply to follow the letter of the law, but to achieve the

overriding “purpose” of the legislative provision. Although Borak involved a suit against

a private corporation, the same logic would seem to apply to suits against state and

local officials. The Supreme Court said precious little about implied private rights of

action over the next decade. But the lower courts routinely invoked J.I. Case v. Borak

to hear private suits to enforce federal laws.

Finally we come to the most obscure of the three cases, Parden v. Terminal

Railway of the Alabama State Docks Department. An employee of the state-owned

railroad sustained injuries on the job, and brought suit for damages under the Federal

Employers’ Liability Act (FELA). FELA applies to “every common carrier by railroad”

engaged in interstate commerce. If Terminal Railway had been a private corporation, it

would clearly have been subject to FELA. But does the Eleventh Amendment allow

federal courts to entertain suits for damages against state governments? All members

of the Supreme Court agreed that the Eleventh Amendment bars such suits—unless the

state has consented to be sued. Writing for a five member majority, Justice Brennan

argued that by operating a railroad after passage of FELA, Alabama had in effect

waived its sovereign immunity:

Our conclusion is simply that Alabama, when it began operation of an

interstate railroad approximately 20 years after enactment of the FELA,

necessarily consented to such suit as was authorized by the Act. By adopting

and ratifying the Commerce Clause, the States empowered Congress to

17

create such a right of action against interstate railroads; by enacting the FELA

in the exercise of this power, Congress conditioned the right to operate a

railroad in interstate commerce upon amenability to suit in federal court as

provided by the Act; by thereafter operating a railroad in interstate commerce,

Alabama must be taken to have accepted that condition and thus to have

consented to suit.31

The minority (which included Justice Douglas) found this to be a rather slender reed to

support a waiver of sovereign immunity, especially since “Congress did not even

consider the possible impact of its legislation upon state immunity from suit.” Justice

White’s dissent enunciated an argument which late became a centerpiece of the

Rehnquist Court’s Eleventh Amendment jurisprudence: “A decent respect for the

normally preferred position of constitutional rights dictates that if Congress decided to

exercise its power to condition privileges within its control on the forfeiture of

constitutional rights its intention to do so should appear with unmistakable clarity.”32

Justice Brennan seemed to limit the scope of Parden by pointing out that in this

case the state had chosen to engage in commercial activity which “if carried on by a

private party or corporation, would be subject to federal regulation.” “When a State

leaves the sphere that is exclusively its own,” Brennan argued, it subjects itself to

regulation “as fully as if it was a private person or corporation.” Whether Parden’s

waiver of sovereign immunity would apply only to proprietary activities such as running

a railroad or would extend to inherently governmental actions such as the provision of

welfare benefits was left unclear. Brennan later argued that a state waived its Eleventh

Amendment immunity merely by participating in a joint program with the federal

government, regardless of whether federal law made waiver an explicit condition of

participation. Try as he might, though, Brennan could never convince a majority of

Justices to accept this position.

18

Parden and J.I. Case v. Borak were announced in the spring of 1964, just as LBJ

was announcing his plans for the Great Society and Congress was debating the Civil

Right Act of 1964. Together the courts, Congress, and the President were creating an

explosive combination: new judicial remedies for a broad array of new statutory rights.

No doubt behind the Court’s innovative rulings lay the same distrust of and impatience

with state and local governments that was evident in the congressional debate over civil

rights. Yet it is also clear that the Court had not given much thought to the manifold

implications of its new receptivity to suits against state and local officials. Over the next

decade the federal courts would frequently accept novel cases without explaining why.

Not until the mid-1970s did the Supreme Court try to clarify its position on §1983,

implied private rights of action, and sovereign immunity. But by then it was too

internally divided to produce any consistent themes.

The significance of the Court’s new receptivity to private suits against state and

local governments was particularly clear in Supreme Court rulings interpreting two

important statutes, the Aid to Dependent Children (AFDC) title of the Social Security Act

of 1935 and Title VI of the Civil Rights Act of 1964. In the following sections I will focus

on two key cases: King v. Smith33 and Lau v. Nichols.34 In both instances the Supreme

Court allowed private parties to file suit against state and local governments to vindicate

statutory rights without explicitly addressing the jurisdictional issues. The Court simply

assumed that enforcing federal mandates was a proper role for the federal judiciary. In

both cases the Court found in federal law substantive requirements that, to put it

charitably, were not evident on the face of the statute. In both cases the Court made it

easier for federal agencies to impose additional demands on subnational governments.

19

And both decisions were repudiated by the Rehnquist Court a quarter of a century later.

Consequently, these two cases provide a useful prism for examining the competing

federalism doctrines of the Warren and Rehnquist courts.

The New Condition of Federal Grants: The Legacy of King v. Smith

King v. Smith was the first and most important of the Supreme Court’s many

decisions involving AFDC. It led to significant expansion of eligibility in each of the 51

AFDC programs run by the states and the District of Columbia. From 1935 to 1968 the

states had nearly complete control over AFDC eligibility requirements and benefit levels,

subject to the handful of restrictions listed in Title IV of the Social Security Act. But in

1968 the Supreme Court suddenly stood the central presumption of the program on its

head. As the Court explained in a later case, “King v. Smith establishes that, at least in

the absence of congressional authorization for the exclusion clearly evidenced from the

Social Security Act or its legislative history, a state eligibility standard that excludes

persons eligible for assistance under the federal AFDC standard violates the Social

Security Act and is therefore invalid under the Supremacy Clause.”35 The statute’s

silence on most eligibility issues—which was clearly based on Congress’s insistence on

state control—was suddenly converted into a federal barrier to state-created

restrictions. This proved to be a remarkably effective method for moving toward the

“sophisticated and enlightened” welfare policy favored by the Court.36

The precedent King v. Smith set on jurisdictional matters was just as important

as its novel reading of the substantive requirements of Title IV of the Social Security

Act. With barely a word of explanation the Court swept away almost all the barriers that

20

had so worried Legal Services attorneys. Chief Justice Warren’s opinion contained no

discussion of whether the Social Security Act had created a private right of action to

supplement the administrative enforcement mechanism explicitly established by the Act.

Jurisdictional issues were relegated to a brief footnote which included the delphic

statement, “we intimate no views as to whether and under what circumstances suits

challenging state AFDC provisions only on the ground that they are incompatible with

the federal statute may be brought in federal court.”37 The Court did not require the

plaintiff to exhaust state or federal administrative remedies. It assumed—again without

explanation—that the proper remedy was to enjoin enforcement of the state’s invalid

rule, rather than to enjoin federal spending until the state came into compliance. In a

subsequent Second Circuit opinion Judge Henry Friendly, one of the federal judiciary’s

leading experts on jurisdictional matters, described the Court’s assumption of

jurisdiction in King v. Smith as “inexplicable.”38 Yet in case after case the Supreme

Court and the lower courts proceeded directly to the merits without explaining why they

had authority to hear suits by private parties to enforce conditions on federal grants.39

The Court was able to sidestep the sticky jurisdictional issues in King v. Smith

because the case had initially taken the form of an Equal Protection challenge to

Alabama’s notorious “substitute parent” rule. Poverty lawyers representing one of the

thousands of African-American families denied benefits as a result of policies instituted

by Governor George Wallace filed a §1983 suite claiming that the “substitute parent”

rule was racially discriminatory in both its intent and its administration. They had plenty

of evidence, and the three-judge court that heard the case readily agreed. But as King

v. Smith made its way to the Supreme Court, those lawyers realized that the case would

21

have a greater impact if it were based on an expansive interpretation of the Social

Security Act. A constitutional ruling would only affect the peculiar state of Alabama; a

new interpretation of Title IV would change policy throughout the nation. The Supreme

Court held that the initial Equal Protection challenge—which it never discussed—

provided it with “pendant” jurisdiction over the statutory issue.

The Court continued to hear AFDC cases on this basis despite the fact that its

decisions in Dandridge v. Williams and Jefferson v. Hackney40 cut the heart out of Legal

Service’s constitutional arguments. In 1974 the Court acknowledged that

Several past decisions of this Court concerning challenges by federal

categorical assistance recipients to state welfare regulations have either

assumed that jurisdiction existed under section 1343 or so stated without

analysis. . . . In none of these cases was the jurisdictional issue squarely

raised as a contention in the petitions for certiorari, jurisdictional statements, or

briefs filed in this Court.41

This was not something that three of President Nixon’s recent appointees, Justices

Rehnquist, Powell, and Burger, were willing to accept. They argued that there was no

basis for the federal courts’ acceptance of this “massive influx of cases challenging

state welfare regulations.”42 The three dissenters argued that the plaintiffs could not

meet the $10,000 minimum established by the general federal-question jurisdictional

statute, nor could they use §1983 since the Social Security Act is not a law “providing

for equal rights.” Since the Supreme Court had “largely discredited [constitutional]

attacks on legislative decisions about the apportionment of limited state welfare funds,”

the Court’s invocation of “pendant” jurisdiction was little more than a hoax—“a classic

case of the statutory tail wagging the constitutional dog.”43

The majority, though, was willing neither to give up jurisdiction or to provide a

clearer jurisdictional basis for the statutory claims. Federal courts could retain pendant

22

jurisdiction over statutory claims, Justice White argued, as long as the constitutional

arguments presented by plaintiff’s lawyers were not “obviously frivolous,” “absolutely

devoid of merit,” or “no longer open to discussion.”44 A court should deny jurisdiction

only when the legislative provision in question is “so patently rational as to require no

meaningful consideration. 45 This peculiar formulation—what would it mean for a law to

be patently rational?--indicates just how frayed the Court’s bootstrap argument had

become.

The longer the Court went without finding an Equal Protection violation, the

more embarrassing the assertion of pendant jurisdiction became. Two subsequent

AFDC decisions, Chapman v. Houston Welfare Rights Organization and Maine v.

Thiboutot46 revealed the deepening divisions in the Court on the question of jurisdiction.

In Chapman the Court ruled by a vote of 6-3 that AFDC cases based solely on statutory

claims could not be brought under §1983 since §1983 is limited to protecting federal

“rights, privileges, or immunities” secured by laws “relating to equal rights.” Justice

Powell’s lengthy concurring opinion warned that if the Supreme Court were to apply

§1983 to rights created by all federal laws, “then virtually every such [cooperative grantin-

aid] program, together with the state officials who administer it, become subject to

judicial oversight at the behest of a single citizen, even if such a drastic expansion of

federal-court jurisdiction never would have been countenanced when these programs

were adopted.”47 The dissenting opinion of Justices Stewart, Brennan, and Marshall, in

contrast, argued that after 11 years of deciding statutory AFDC claims “it is far too late

in the day . . . to argue that the plaintiffs in these cases did not state causes of action

cognizable in the federal courts.”48 Although it would usually be possible to use

23

Hagan’s pendant jurisdiction rationale to slip into court, the dissenters believed that “to

sacrifice even one lawsuit to the Court’s cramped reading” of §1983 “is to deprive a

plaintiff of a federal forum without justification in the language or history of the law.”49

The very next year the Court reversed its position on the scope of §1983,

again by a vote of 6-3. In Maine v. Thiboutot Justice Brennan finally convinced a

majority to accept the position that §1983 applies to all rights secured by federal

statutes. In his brief opinion Brennan argued that this expansion of the authority of the

federal courts was consistent with both the plain language of the statute and Supreme

Court practices since King v. Smith.50 Justice Powell’s dissenting opinion complained

that the Court “almost casually” had conferred upon the federal judiciary

“unprecedented authority to oversee state actions that have little or nothing to do with

the individual rights” protected by Reconstruction legislation. He provided a long list of

programs that would become subject to judicial scrutiny as a result of the Court’s broad

interpretation of §1983.51

These AFDC cases provide a useful cook’s tour of the evolution of judicial

doctrine on private rights of action in grant-in-aid programs. First came a scarcely

acknowledged expansion of jurisdiction to deal with problems of racial discrimination.

Once the initial crisis receded, judges were reluctant to return to the status quo ante,

which would have left state officials unsupervised by federal judges. A counterattack by

the federalism faction (in the late 1970s this meant Justices Rehnquist, Powell, and

Burger) was repulsed as Justice Brennan put together a Supreme Court majority to

provide a permanent basis for the expansion of federal judicial authority.

24

Nearly as important as the way private rights of action changed the role of the

federal courts was the way they altered the incentives and the perspective of federal

administrators. Before the courts stepped in, the U.S. Department of Health, Education,

and Welfare issued numerous “state letters” to guide and goad state administrators.

Since state administrators knew that the feds were unlikely to cut funding, federal

enforcement of grant requirements involved lengthy negotiations between officials at the

federal, state, and local levels.52

All this changed after King v. Smith. The Court’s reinterpretation of the Social

Security Act in King had relied in part on HEW regulations. HEW officials soon realized

that they could issue extensive regulations and rely on the courts to enforce them.

Freed from its reliance on the politically treacherous and usually ineffective funding

sanction, HEW quickly became more aggressive and more legalistic.

The Supreme Court endorsed this new role for federal administrators in its first

post-King AFDC decision. In Lewis v. Martin the Court relied exclusively on HEW rules

specifying when states could count the income of “men assuming the role of spouse.” It

announced that HEW was free to add conditions consistent with the act’s “basic

purpose of providing aid to ‘needy’ children.”53 This is not to say that federal judges

always agreed with HEW. In a variety of cases the Supreme Court and the lower courts

read the Social Security Act to encompass an entitlement broader than that recognized

by HEW. In effect HEW rules established a new floor, one on which the courts were

free to build.

The shift in the politics of intergovernmental grants was captured in an article

written by HEW’s deputy general counsel in 1970. He noted that after King v. Smith

25

“instead of the legislative and executive branches providing the initiative for the creative

development of new rules, it has been the courts that have supplied the initiative, and,

in some measure, the creativity.” Intervention by the courts “permitted a sort of foursided

game of leapfrog,” in which each set of federal actors could impose new

restrictions on the states. “If for some reason the federal administrators were inhibited

in the development of new rules—perhaps because of the disapproving views of

members of an appropriations committee—the courts could assume the lead in

developing new legal requirements.” At the same time, federal administrators could

embed a judicially developed policy in their rule book "perhaps even embellishing it a

bit." Reform “could thus proceed in an ever-ascending spiral with no single participant

in the process having the capacity to block progressive development.”54

Far from merely insuring that states comply with federal statutory commands,

private rights of action gave judges and administrators considerable power to impose

their own interpretations of federal welfare laws on the states. Liberals applauded the

courts’ effort to institute welfare reforms that had never been able to survive the

“obstacle course on Capitol Hill.” Conservatives in Congress, the Nixon Administration,

and the office of California Governor Ronald Reagan were also well aware of the role

the federal courts had played in expanding welfare eligibility and reducing the authority

of the states. For years they vowed to end the courts meddling with AFDC. Not until

1996 did they finally succeeded.

26

Lau v. Nichols and the Politics of Cross-Cutting Regulations

In 1974 the Supreme Court issued a brief, unanimous decision requiring school

districts throughout the nation to provide bilingual education to children who do not

speak English. Lau v. Nichols55 not only played an important role in the development of

bilingual education, but also established the federal courts’ role as enforcer of agency

rules issued under Title VI of the Civil Rights Act and, later, Title IX of the Education

Amendments of 1972 and §504 of the Rehabilitation Act of 1973. Once again the

expansion of the authority of the federal courts was barely mentioned in the Supreme

Court’s opinion. In this instance all the Court’s Nixon appointees—including Rehnquist,

Powell, and Burger—joined the majority. The amicus brief for the United States urging

the Court to adopt an expansive reading of Title VI was signed by Solicitor General

Robert Bork. Republicans in the White House and HEW’s Office of Civil Rights were

eager to court Hispanic voters; judicial conservatives had yet to grasp the significance

of private rights of action under “cross-cutting” statutory provisions such as Title VI.

Title VI was the sleeper section of the Civil Rights Act of 1964. The first part of

Title VI provides that “No person in the United States shall, on the grounds of race,

color, or national origin, be excluded from participation in, be denied the benefits of, or

be subject to discrimination under any program or activity receiving Federal financial

assistance.” (§601) The second part requires federal departments and agencies to

write regulations to carry out this prohibition, and authorizes them to terminate funds to

recipients who fail to comply. (§602) The Kennedy Administration presented these

provisions as an administrative alternative to the painfully slow process of achieving

desegregation through litigation.56 Although a subcommittee of the House Judiciary

27

Committee recommended adding a private right of action to Title VI, this proposal was

dropped by the full committee, never to reappear. The House bill, which was later

accepted by the Senate with only a few changes, provided that administrative

regulations could be enforced “by any other means authorized by law.” The legislative

history indicates that the handful of members of Congress who paid attention to the

details of Title VI took this to mean that the United States could file suit to enforce Title

VI regulations.57 At the time this seemed rather minor since Title II of the Act gave the

Attorney General authority to file desegregation suits, and private citizens already had

the right under §1983 and the Fourteenth Amendment to challenge racial discrimination

by those using federal funds. The White House and civil rights groups favored Title

VI—and Southerners feared it—because it seemed to offer a quick and effective

administrative enforcement mechanism.

Over the next five years HEW guidelines under Title VI played a major role in the

rapid desegregation of southern schools.58 Central to the success of desegregation

was the alliance that developed between HEW and the Fifth Circuit, the appeals court

with jurisdiction over most of the deep South. In a series of important desegregation

cases the Fifth Circuit relied heavily on HEW’s rules to establish appropriate remedies

for constitutional violations. Acting alone, Judge Wisdom noted, the courts had failed to

end segregation. But now Title VI and executive branch expertise provided a means “to

rescue school desegregation from the bog in which it has been trapped for years.” The

“HEW Guidelines offer, for the first time, the prospect that the transition from a de jure

segregated dual system to a unitary integrated system may be carried out effectively,

promptly, and in an orderly manner.”59 Formally HEW was not a party to these cases,

28

which were brought by the Department of Justice and private parties to correct school

practices that violated the Constitution. But the court announced that it would give “great

weight” to the guidelines in future litigation, and it borrowed heavily from the guidelines

in constructing a model decree which it expected to be used by district court judges

within the circuit. With the federal courts relying so heavily on its rules and with the

Department of Justice pursuing an aggressive litigational effort to uproot segregation,

HEW did not need to rely exclusively or even primarily on the threat of a funding cutoff

to enforce its standards.

In 1970 the Office of Civil Rights in HEW decided to tackle another educational

issue, announcing extensive bilingual education guidelines for all public schools with a

significant number of non-English speaking students. According to OCR, failure to

provide bilingual education constitutes discrimination because “inability to speak and

understand the English language excludes national origin-minority group children from

effective participation in the educational program offered by a school district.”

Consequently, districts with more than 5% non-English speakers “must take affirmative

steps to rectify the language deficiency in order to open its instructional program to

these students.”60 Schools could not assign non-English speakers to special education

classes without the consent of new advisory committees mandated by the federal

regulations. HEW Secretary Elliot Richardson told Congress that the OCR regulations

would require ”total institutional reposturing (including culturally sensitizing teachers,

instructional materials and educational approaches) in order to incorporate, affirmatively

recognize and value the cultural environment of ethnic minority children so that the

development of positive self-concept can be accelerated.”61 Despite the fact that

29

bilingual education had never been discussed in the lengthy debate over the Civil Rights

Act, federal administrators intended to use Title VI to require major changes in urban

school systems. Yet by itself OCR had neither the manpower nor the political will to

ensure that these school districts would comply.62 Nor was it clear that private litigants

could get into federal court by claiming that failure to provide bilingual education

constituted a violation of the Constitution.

In Lau v. Nichols Chinese-American students aided by Legal Services attorneys

sued the San Francisco school system to force it to comply with OCR’s guidelines. The

lower courts ruled that neither the Constitution nor Title VI impose such affirmative

duties on local schools. But the Supreme Court disagreed. Justice Douglas’s brief

majority opinion upheld the OCR guidelines with scarcely any discussion of the

language of Title VI or the implications of the decision for federalism. His opinion

included the later controversial assertion that “discrimination is barred which has that

effect even though no purposeful design is present.”63 Justice Stewart’s concurring

opinion (which Justices Burger and Blackmun joined) noted that the San Francisco

school district had not “affirmatively or intentionally contributed to this [language]

inadequacy,” but had “failed to act in the face of changing social and linguistic patterns.”

“It is not entirely clear,” Stewart wrote, that the prohibition on discrimination contained in

§601 requires the school system to add new programs. “The crucial question is,

therefore, whether the regulations and guidelines promulgated by HEW go beyond the

authority of §601.” Steward found that these regulations were “reasonably related to the

purpose of the enabling legislation.” Department rules, the Supreme Court had held in

many previous cases, are “entitled to great weight.”64 Stewart in effect argued that

30

federal agencies have authority to add a disparate-impact test to the ban on intentional

discrimination announced in Title VI. Douglas, in contrast, implied that Title VI itself

incorporated a disparate-impact test. Neither considered whether these two

understandings of discrimination might be incompatible, and neither explicitly addressed

the question of whether Title VI contained a private right of action.

Lau v. Nichols both gave HEW broad authority to interpret “discrimination” and

committed the federal judiciary to enforcing HEW’s rules. This had implications that

went well beyond bilingual education: HEW could now establish affirmative action

requirements for school assignment, college admission, and employment. Private

citizens, civil rights groups, and Legal Services attorneys could then seek injunctions

and damages against recipients of federal funds who failed to comply. This meant that

Title VI had been transformed from an administrative enforcement mechanism for

guaranteeing equal protection of the law into a judicial mechanism for enforcing

administrative rules defining a wide variety of forms of discrimination.

One of the ironies of Title VI litigation is that some of the justices who were most

vigorous in opposing implied private rights of action under other statutes had reasons

for recognizing a private right of action under Title VI. This became clear in the Board of

Regents v. Bakke65, in which four members of the Court (Burger, Rehnquist, Stewart

and Stevens) based their opposition to the University of California’s affirmative action

program entirely on Title VI. With the liberals using Title VI to justify affirmative action

and two conservatives using Title VI to limit affirmative action, only Justice White

refused to recognize a private right of action.66 Having taken this stand in Bakke,

31

Rehnquist and Burger, two of the court’s most reliable defenders of federalism, later

provided the votes necessary to recognize a private right of action under Title IX.67

During the 1970s and 1980s lower court judges routinely required state and local

governments to follow federal administrative rules defining discrimination based on

race, gender, language, and disability. Once again judicial doctrine had developed

incrementally: first the lower courts deferred to HEW’s Title VI guidelines to attack

behavior by state and local officials that was clearly unconstitutional (de jure school

segregation); then the Supreme Court used private rights of action under Title VI to

address state and local policies that might be unconstitutional under a broad reading of

the equal protection clause (Lau v. Nichols); and eventually judges recognized private

rights of action to enforce administrative rules that had no constitutional basis whatever

(for example, requiring accessible transportation for the disabled). Together federal

judges and administrators were creating an elaborate common law governing the

behavior of subnational governments with virtually no direction from Congress.

Confusion Reigns: The Supreme Court in the ‘80s

These developments provoked a concerted effort by Justice Powell to reverse

the steady erosion of state and local authority. In a famous dissent in a 1979 Title IX

case, he argued that “the time has come to reappraise our standard for the judicial

implication of private causes of action.”68 That same year Powell, writing for a

unanimous Court, refused to defer to HEW regulations issued under §504 of the

Rehabilitation Act: “Here, neither the language, purpose nor history of §504 reveals an

intent to impose an affirmative-action obligation on all recipients of federal funds.”69

32

Two years later a divided Court ruled in the first Pennhurst case that “if Congress

intends to impose a condition on the grant of federal moneys, it must do so

unambiguously.”70 The Court seemed to be backing away from the course it had set in

King v. Smith and Lau v. Nichols.

But reality was more complex—and Supreme Court doctrine less coherent—

than this might suggest. When Justice O’Connor replaced Justice Stewart in 1981,

federalism picked up a fourth reliable vote. This “Federalism Four” (Powell, Rehnquist,

Burger, and O’Connor) could often pick up at least one swing vote (usually White or

Stevens). For example,

• In a number of cases the court refused to find a private right of action when

the statute in question seemed to create a comprehensive enforcement

scheme71 or did not promise “especial benefits” to a clearly defined set of

recipients.72

• In its second major decision involving the Pennhurst State School and

Hospital, the Court invoked the Eleventh Amendment to prevent federal

courts from relying on state law to order the restructuring of state

institutions.73

• In an another frequently cited case, Atascadero State Hospital v. Scanlon

the Court invoked the Eleventh Amendment and the “clear statement” rule

to deny damages to a plaintiff who had won a §504 suit against the state of

California. 74

33

• In several cases the Court refused to allow §1983 suits against state and

local governments, arguing that the extensive remedial measures created

by Congress precluded the use of the more generic remedy.75

Yet the “Federalist Four” lost at least as many battles as they won. In 1985 the

Court issued is decision in Garcia, which claimed to leave protection of federalism to the

political branches.76 After authorizing §1983 suits against municipalities in 1978, the

Court stripped municipality of their “good faith” immunity in 1980 and two years late

ruled that §1983 does not require exhaustion of administrative remedies.77 The Court’s

1989 decision in Pennsylvania v. Union Gas Co. seemed to put a quick end to the

revival of the Eleventh Amendment: by a 5-4 vote the Supreme Court ruled that

Congress could use its authority under the Commerce Clause to abrogate the states’

sovereign immunity.78 That meant that Congress—and, by implication, the judges who

interpret congressional intent—can ignore the Eleventh Amendment whenever they see

fit. The Court also allowed Congress to impose specific duties on long-established state

regulatory commissions.79

Ironically, one reason the Court swung back and forth on federalism issues

during the 1980s was that the federalist and nationalist blocs had become more

cohesive in their voting and more coherent in their doctrine. When Burger and Powell

retired they were replaced by Scalia and Kennedy, who were at least as committed to a

revival of federalism as their predecessors. Meanwhile Justice Brennan was picking up

converts (Justices Blackmun and Stevens) in his long-standing effort to eliminate

sovereign immunity and to extend the reach of §1983. That meant that the vote of a

single justice—often Justice White—would determine the outcome of the case before

34

the Court. Meanwhile Congress was increasing the number of unfunded mandates and

conditions on federal grants. The huge budget deficits of the 1980s made cost-shifting

an increasingly popular political strategy in Washington. As a result, a badly divided

Supreme Court faced increasingly difficult federalism issues.

The End of the Alliance: Alexander v. Sandoval

In 1991 Clarence Thomas replaced Justice Thurgood Marshall and the

“Federalism Four” became the “Federalism Five.” During the 1990s the Supreme Court

developed a number of doctrines that made it more difficult for the federal government

to impose mandates on the states.80 Rather than try to review all these developments,

this paper will examine two Supreme Court cases that exemplify these trends and

illustrate their significance. These two decisions, Alexander v. Sandoval81 and Blessing

v. Freestone82 provide vivid contrasts with King v. Smith and Lau v. Nichols.

The Court’s 2001 decision in Alexander v. Sandoval not only revoked the

authority granted to federal administrators in Lau v. Nichols, but featured a heated

debate between Justices Scalia and Stevens on federalism and the role of the courts.

Like Lau v. Nichols, Sandoval involved administrative regulations on language-based

discrimination under Title VI. Soon after Alabama amended its Constitution to declare

English its official language, the state required drivers exams to be conducted only in

English. Non-English speakers challenged the practice as contrary to regulations issued

by the Department of Justice. As Justice Stevens pointed out, “when this Court faced

an identical case 27 years ago, all the Justices believed that private parties could bring

35

lawsuits under Title VI and its implementing regulations to enjoin the provision of

services in a manner that discriminates against non-English speakers.”83

But not this time. In a majority opinion that was simultaneously queer and clever,

Justice Scalia stated that the long-established private right of action under Title VI

extended only to the prohibition of discrimination in §601, not to the administrative

regulations issued under §602. Scalia did not say that the Department of Justice’s

language discrimination rules were invalid because they were based on a disparateimpact

understanding of Title VI that had been rejected by a majority of the Court—even

though this conclusion seem to animate his entire opinion. Rather he drew a sharp (and

novel) line between a private right of action to enforce a statute and a private right of

action to enforce a regulation issued under that statute. The federal judiciary, Scalia

maintained, would no longer take on the job of enforcing against subnational

governments agency regulations that were only loosely connected to congressional

statutes. Scalia’s opinion managed pull off a triple play by (1) following a long line of

precedents on the availability of private rights of action under Title VI, (2) retaining Title

VI as a weapon for assaulting affirmative action programs, and (3) substantially

reducing the power of federal agencies to regulate subnational governments.

The difficulty with Scalia’s argument is that, as he pointed out, the Court had long

held that “a Congress that intends the statute to be enforced through a private cause of

action intends the authoritative interpretation of that statute to be so enforced as well.”

It is “therefore meaningless to talk about a separate cause of action to enforce the

regulations apart from the statute.”84 If there is no private right of action to enforce

agency rules, then these rules must not be authoritative interpretations of the statute.

36

But how can that be? Doesn’t the “well established principle” of deference to

administrative expertise announced in Chevron v. NRDC85 require the court to accept ,

and thus enforce, the DOJ rules? Justice Scalia’s opinion is uncharacteristically opaque

on this central issue.

The reason, I would suggest, is that Scalia and other members of the “Federalist

Five” see a major difference between regulating private parties and regulating

subnational governments, and are not willing to apply “Chevron deference” to rules that

apply to state and local governments. The logic goes like this: the courts will only

impose mandates on subnational governments when Congress has made a “clear

statement” to that effect. This “clear statement” must be readily apparent on the face of

the statute, clear enough for both state officials and federal judges to see it without the

help of elaborate administrative rules. Under what Scalia described as the “ancien

regime” of J.I. Case Co. v. Borak, the federal courts would frequently go well beyond the

clear commands of the law in order to “make effective the congressional purpose.” But

no longer: “Having sworn off the habit of venturing beyond Congress’s intent, we will

not accept respondent’s invitation to have one last drink.”86 Agencies cannot create or

expand rights enforceable against the states. This is a job for Congress alone:

“Agencies may play the sorcerer’s apprentice, but not the sorcerer himself.”87 In short,

federal judges should not enforce agency regulations against subnational governments

unless there is a very clear link between the regulations and the text of the statute.

The Court’s failure to invalidate the DOJ guidelines leaves open the possibility

that the Department remains free to attempt to enforce its rules administratively, i.e.

through negotiations and the threat of a funding cut-off. Of course a state denied

37

federal funds on these grounds could seek judicial review of the Department’s decision,

and it is hard to imagine that the DOJ’s disparate-impact rules would survive Supreme

Court review. But there could well be many valid agency rules in the vast gray area

between what a statute clearly requires and what it does not permit. Sandoval presents

the possibility of a two-tiered enforcement structure: rights the Court decides are clear

on the face of the statute are enforceable in federal court; agency rules in the gray area

can be enforced only through administrative means. Whether the Court will explicitly

endorse this approach is unclear.

The dissent written by Justice Sevens and jointed by Justices Souter, Breyer,

and Ginsburg did not hesitate to point out that the majority’s effort to “carve out an

important exception to the right of private action long recognized under Title VI” was

“unfounded in any precedent” and “hostile to decades of settled expectations.” Stevens

offered a spirited defense of what Scalia had derided as the “ancien regime.” Over the

past 35 years, Stevens wrote, “we have developed a body of law giving content” to the

“antidiscrimination ideals laid out in §601.” The “deceptively simple” structure of Title VI

created an “integrated remedial scheme” that “reflects a reasonable—indeed inspired—

model for attacking the often-intractable problem of racial and ethnic discrimination.”

Title VI has “delegated to the agencies in the first instance the complex determination of

what sorts of disparate impacts upon minorities constituted sufficiently significant social

problems” to justify “altering the practices of the federal grantees that have produced

those impacts.”88 §602 grants the responsible federal agencies “the power to issue

prophylactic rules aimed at realizing the vision laid out in §601, even if the conduct

captured by these rules is at times broader than that which would otherwise be

38

prohibited.” The federal courts must join this effort in order to “provide individual

citizens effective protection” against practices that violate these “antidiscrimination

norms.” Such court-agency cooperation, Stevens argued, has produced a dynamic form

of regulation of subnational governments:

On its own terms, the statute supports an action challenging policies of federal

grantees that explicitly or unambiguously violate antidiscrimination norms (such

as policies that on their face limit benefits or services to certain races). With

regard to more subtle forms of discrimination (such as schemes that limit benefits

or services on ostensibly race-neutral grounds but have the predictable and

perhaps intended consequences of materially benefiting some races at the

expense of others), the statute does not establish a static approach but instead

empowers the relevant agencies to evaluate social circumstances to determine

whether three is a need for stronger measures. Such an approach builds into the

law flexibility, an ability to make nuanced assessments of complex social

realities, and an admirable willingness to credit the possibility of progress.89

Noticeably absent from Stevens discussion of Title VI is any acknowledgement of the

principle that restrictions on state and local governments must come from Congress.

Indeed, in Stevens’ lengthy dissent there is virtually no discussion of federalism at all.

For him the authority of a federal agency to regulate state and local governments under

Title VI is no different from an the Environmental Protection Agency’s authority under

the Clean Air Act to regulate a refinery owned by the Chevron Corporation.

One could, of course, view Sandoval as “merely” another round in the long

judicial battle over competing understandings of race- and gender-based discrimination.

But the case shows that it is virtually impossible to separate this “policy” dispute from

the broader institutional debate over the proper role of agencies and courts and the

constitutional authority of the federal government. Unlike many political scientists who

study the courts, Supreme Court justices understand that the most effective way to

change public policy is to issue broad rules altering institutional relations.

39

A Blessing or a Curse? Toward the Mothers of All Welfare Cases90

As we saw above, King v. Smith marked the beginning of the federal court’s

extensive effort both to expand and to enforce federal conditions on grant-in-aid

programs. In 1980 the Supreme Court resolved the ticklish jurisdictional issue by

holding that §1983 could be invoked to protect rights “secured” by the Social Security

Act and other health, education, and welfare statutes. AFDC litigation tapered off a bit in

the 1980s as federal judges became more willing to defer to the judgement of state

officials and the recommendations of Reagan and Bush appointees at HHS.91 It then

came to a crashing halt when Congress enacted welfare reform in 1996. That law made

crystal clear Congress’s intent to end the court-created federal welfare “entitlement” and

to remove federal judges from welfare policymaking. One section announced literally in

capital letters, “NO INDIVIDUAL ENTITLEMENTS.—This part shall not be interpreted to

entitle any individual or family to assistance under any State program funded by this

part.” Another section stated that federal restrictions on eligibility “shall not be

interpreted to require any state to provide assistance to any individual for any period of

time under State programs under this part.”92 Enforcement of federal requirements was

left completely in the hands of the administrators who controlled the distribution of

federal funds.

Most grant-in-aid programs that distribute federal health, education, and welfare

funds, though, do not include signs that so bluntly tell federal courts “Keep Out!” How

have the “Federalist Five” treated private rights of action under these statutes?

Although the Court has not explicitly overturned Maine v. Thiboutot, in recent years it

40

has issued several decisions severely limiting the extent to which §1983 can be used to

enforce conditions on federal grants. This section of the paper will look closely at one

such case, Blessing v. Freestone93, which involves a program similar in structure to the

original AFDC. It will then examine a highly controversial lower court decision on

Medicaid to explore the possible consequences of the Court’s new doctrines.

Title IV-D of the Social Security Act provides federal funding for state child

support services programs, provided that these programs comply with federal

requirements. Among other things, Title IV-D specifies the services all states must

provide and establishes deadlines for passing through to needy families the child

support payments collected by the state from absent parents. Like the original Title IV

that established AFDC, Title IV-D allows federal administrators to reduce funding to

states that fail to meet federal standards, but does not explicitly authorize private suits

against the states.

In Blessing v. Freestone several families sued the state of Arizona, claiming

they had been denied services and child support payments mandated by Title IV-D.

Everyone (including HHS) agreed that Arizona had done a miserable job complying

with federal requirements. The Ninth Circuit ruled that beneficiaries could sue the state

under §1983 in order to bring the state into “substantial compliance” with federal law.

But the Supreme Court disagreed.

Writing for a unanimous court in 1977, Justice O’ Connor explained that “in order

to seek redress through §1983” a plaintiff “must assert the violation of a federal right,

not merely the violation of a federal law.”94 The plaintiff not only must identify the

“particular statutory provision” that “gives rise to a federal right,” but must also convince

41

the court that Congress had intended to single out for assistance particular beneficiaries

rather than to provide collective benefits to a broad sector of the population. Moreover,

the plaintiff must demonstrate that the statutory right “is not so ‘vague and amorphous’

that its enforcement would strain judicial competence." The statute “must

unambiguously impose a binding obligation on the States” by couching the right “in

mandatory, rather than precatory, terms.” All this produces “only a rebuttable

presumption that the right is enforceable under §1983.” A judicial remedy is foreclosed

if Congress had expressedly forbidden recourse to §1983 or, more importantly, if

Congress had created “a comprehensive enforcement scheme that is incompatible with

individual entitlements under §1983.”95

The plaintiffs in Blessing could not surmount these numerous hurdles.

According to the Court,

[T]he requirement that a state operate its child support program in ‘substantial

compliance’ with title IV-D was not intended to benefit individual children and

custodial parents, and therefore it does not constitute a federal right. Far from

crafting an individual entitlement to services, the standard is simply a yardstick

for the Secretary to measure the systemwide performance of a State’s Title IV-D

program. Thus, the Secretary must look to the aggregate services provided the

State, not to whether the needs of any particular persons have been satisfied.96

The Court did not foreclose the possibility that some parts of Title IV-D might create

rights enforceable through 1983—which probably explains why this was a unanimous

opinion. But Blessing shows how reluctant the Court has become to discover individual

entitlements in grant-in-aid programs.

Blessing was just one of several post-1991 cases to narrow the scope of

statutory rights protected by §1983. For example, in Suter v. Artist M97 the Court

refused to enforce a provision of the Adoption Assistance Act that required participating

42

states to make “reasonable efforts . . . to prevent or eliminate the need for removal of

the child from his home and to make it possible for the child to return to his home.” This

language, Chief Justice Rehnquist claimed,

Does not unambiguously confer an enforceable right upon the Act’s

beneficiaries. The term ‘reasonable efforts’ in this context is at least as

plausibly read to impose only a rather generalized duty on the State, to be

enforced not by private individuals, but by the Secretary in the manner

previously discussed.98

Justice Blackmun objected that the Court had in effect “inverted its established

presumption that a private remedy is available under §1983 unless Congress has

affirmatively withdraw [it].”99 According to Blackmun, the Court had “contravened 22

years of precedent” under Maine v. Thiboutot, “changing the rules of the game without

offering even minimal justification.”100

In its most recent term the Court held that despite its name the Family

Educational Rights and Privacy Act of 1974 creates “no personal right to enforcement

under 42 USC §1983.”101 According to the Court, plaintiffs not only carry the heavy

burden of demonstrating that Congress intended to create an individual right (and “not

the broader or vaguer ‘benefits’ or ‘interests’”), but must also of demonstrating that

Congress intended the right to be enforceable through a private right of action. No

longer did §1983 create a presumption in favor of judicial enforcement of individual

rights created by federal laws: “if Congress wishes to create new rights enforceable

under §1983, it must do so in clear and unambiguous terms—no less and no more than

what is required for Congress to create new rights enforceable under an implied private

right of action.”102 Justice Stevens’ dissenting opinion correctly noted that by placing

the “burden of showing an intent to create a private remedy on §1983 plaintiffs,” the

43

Court had “eroded—if not eviscerated—the long-established principle of presumptive

enforceability of rights under §1983.”103 Behind this implicit overruling of Maine v.

Thiboutot lay the central mantra of the Rehnquist Court’s federalism jurisprudence: “If

Congress intends to alter the usual constitutional balance between the States and the

Federal Government, it must make its intention to do so unmistakably clear in the

language of the statute.”104

Blessing v. Freestone is notable not only for its stark contrast with King v. Smith,

but also for a concurrence written by Justice Scalia and joined by Justice Kennedy.

Scalia briefly raised “the question of whether §1983 ever authorizes the beneficiary of a

federal-state funding and spending agreement . . . to bring suit.” Scalia strongly hinted

that his answer to this question was “no.” According to the Court’s opinion in the first

Pennhurst case, grant-in-aid programs are “in the nature of a contract.” The states and

the federal government are the primary parties to the contract; potential recipients are

“third party beneficiaries.” According to Scalia, “until relatively recent times, the third

party beneficiary was generally a stranger to the contract, and could not sue under it.”

This might not be the law in most states today, “but it appears to have been the law at

the time §1983 was enacted.”105 To Scalia and Kennedy this seemed to mean that

§1983 did not authorize suit by beneficiaries no matter how clear the individual right

established by federal law.

Rehnquist’s majority opinion in Gonzaga and Scalia’s concurrence in Blessing

both point in the same direction: before enforcing the “strings” on federal grants,

judges must find unambiguous evidence that the Congress that enacted the program

meant to created both an individual right and a judicial remedy. Since few grant

44

statutes do both, consistent application of these new doctrines could substantially

reduce the opportunities to pursue judicial enforcement of conditions on federal grants.

One federal district court judge has taken the Court’s argument one step further,

claiming that the combination of the Court’s “contract” understanding of grant programs

and its recent Eleventh Amendment decisions prohibits Congress from authorizing

private suits to enforce the conditions on grants to state governments. Judge Robert

Cleland of the Eastern District of Michigan issued this controversial view in Westside

Mothers v. Haveman, a lengthy Medicaid opinion subsequently overturned by the

Seventh Circuit. 106 To make an extremely long story mercifully short, Judge Cleland

argued that the Rehnquist Court’s reading of the Eleventh Amendment prohibits all

private suits against states—with but two exceptions. The first is suits to protect

Fourteenth Amendment rights, which are not implicated in run-of-the-mill entitlement

cases. The second exception is suits against state officers, authorized by the Court

nearly a century ago in Ex Parte Young.107 For years the Ex parte Young loophole has

allowed almost all suits against states to survive Eleventh Amendment challenge, save

those involving compensation for past misdeeds by the state, i.e. back pay,

compensatory damages, or repayment of benefits previously denied. According to

Judge Cleland, Ex Parte Young applies only when a state officer has violated a federal

rule that is “the supreme law of the land.” But, he argued, a provision in a conditional

spending program is not “the supreme law of the land” but merely a term in a contract

between two government: “Because congressional enactments pursuant to the

spending power that set forth the terms of federal-state cooperative agreements depend

on the voluntary agreement of participating States and are not within the ambit of the

45

Supremacy Clause, they are not the supreme law of the land, and suits cannot be

brought against state officials under Ex Parte Young to enforce those requirements.”108

Given the fact that the Supreme Court has been expanding its reading of

Eleventh Amendment sovereign immunity on an annual basis, it is not entirely out of the

question that five members of the Court might eventually accept Judge Cleland’s

analysis. This possibility has certainly alarmed Legal Services attorneys, who file

scores of §1983 suits under Medicaid and other grant programs each year: “With Judge

Cleland’s argument cropping up in litigation around the country, the prospect of that

issue finding its way to the Supreme Court looms menacingly on the horizon.”109 This

spring the Sixth Circuit issued a brief opinion overturning Judge Cleland, stating that

“Binding precedent has put the issue to rest.”110 What the circuit court failed to mention

was that many of these “binding” precedents are routinely being questioned, limited,

and overturned by the current Supreme Court. Although it remains unlikely that the

Supreme Court will establish the constitutional ban on private rights of action under

spending clause laws recommended by Judge Cleland, it is almost certain that the

Court will continue to use statutory arguments to limit judicial enforcement of conditions

on federal grants.

Conclusions

Since this is already a long paper, I will conclude by briefly summarizing four

findings of the preceding analysis.

First, recent decisions of the Rehnquist Court have had a significant effect on

a variety of programs run jointly by state and national governments by substantially

46

reducing opportunities for private suits against subnational to enforce federal rules. The

importance of these decisions flows from the federal courts’ unique capacity to issue

orders to state and local officials. Over the past 35 years such private suits have been

the primary mechanism for enforcing the multitude of federal mandates announced by

Congress, federal administrative agencies, and federal judges. The Rehnquist Court

has been particularly determined to prevent the federal courts from forcing subnational

governments to comply with rules enunciated by federal administrators or federal judges

on the basis of their understanding of the “purposes” or “ideals” of congressional

enactments. Michael Greve has aptly described the stance of the “Federalist Five” as

one of “judicial non-cooperation”111: they will not allow the judicial power to be used to

reduce state governments to “mere prefectures or corporations.”112

Second, Justices Stevens and Blackmun were correct in their claims that the

current majority on the Court is overturning precedents that go back 22 years (Maine v.

Thiboutot), 28 years (Lau v. Nichols), and 38 years (J. I. Case Co. v. Borak). By the

same token, those jurisdiction-expanding decisions represented sharp departures both

from long-standing assumptions about the limited jurisdiction of the federal courts and

from the rejection of federal common law in the pivotal New Deal decision of Erie v.

Tompkins.113 The Supreme Court paid surprisingly little attention to the institutional

consequences of its decisions of the 1960s and early 1970s, and by 1980 was already

having second thoughts about some of them. Rarely could the state of the law on

implied private rights of action or §1983 be described as “settled.” The best way to

describe the current shift is to say that the Rehnquist Court is putting strict limits on the

judicial experiment begun in the 1960s.

47

Third, so far at least, the Supreme Court has put relatively few limits on the

conditions Congress can attach to federal grants or the extent to which the United

States government can go to court to demand that subnational governments comply

with statutory rules. It has focused primarily on the authority of agencies and courts to

build upon (and on occasions distort) vague congressional mandates and the ability of

private parties to initiate judicial action. As members of the “Federalist Five” have

frequently pointed out, the so-called “political safeguards of federalism” cannot protect

state and local governments if courts and agencies are able to go well beyond the clear

commands of laws enacted by Congress.114 The Court has indicated that it is much

more willing to enforce mandates that come directly from Congress than those that

come from administrators; and that it is more willing to entertain suits against

subnational governments when the executive branch is willing to take responsibility for

initiating them. The long-term consequences of the Rehnquist Court’s doctrines thus

will depend in large part on how willing and able Congress and the executive are to take

direct responsibility for the expansion of federal authority.

Finally, judicial rulings on such matters as implied private rights of action,

§1983, and judicial deference to administrative regulations are not usually regarded as

“constitutional” decisions. Yet they have enormous implications for the balance of

power between federal and state governments and for the day-to-day operation of

separation of powers. Indeed, one could argue that the most important change in

federalism over the past 40 years has been way the federal courts have played a

central role in imposing on subnational governments a de facto common law developed

by federal judges and administrators. Whether this judge- and administrator-made law

48

is essential to the protection of discrete and insular minorities and to the supremacy of

federal law (as Justice Brennan and his allies have argued) or whether it has distorted

our constitutional system (as the “Federalist Five” maintain), its significance is hard to

deny. Understanding this form of constitutional law requires understanding both how a

wide variety of federal programs work and how an even larger number of complex court

rulings have shaped their development. Our constitution lies is such details.

49

ENDNOTES

1 US v. Lopez, 514 US 549 (1995); City of Boerne v. Flores, 521 US 507 (1997); US v. Morrison,

529 US 598 (2002).

2 For example, Teague v. Lane, 489 US 288 (1989); Coleman v. Thompson, 501 US 72 (1991);

McKleskey v. Zant, 499 US 467 (1991); Felker v. Turpin, 518 US 651 (1996); Calderon v.

Thompson, 523 US 538 (1998); and Miller v. French, 530 US 327 (2000).

3 New York v. US, 488 US 1041 (1992); and Printz v. US, 521 US 898 (1997).

4 Seminole Tribe of Florida v. Florida, 517 US 44 (1996); Idaho v. Coeur d’Alene Tribe, 512 US

261 (1997); Florida Prepaid Postsecondary Education Expenses Board v. College Savings Bank,

527 US 627(1999); College Savings Bank v. Florida Prepaid 527 US 666 (1999); Alden v. Maine,

527 US 706 (1999); Kimel v. Florida Board of Regents, 528 US 62 (2000); Board of Regents v.

Garrett, 531 US 356(2001); Federal Maritime Commission v. South Carolina State Ports

Authority, 535 US — (2002).

5 For example, Gregory v. Ashcroft, 501 US 452 (1991); Dellmuth v. Muth, 491 US 223 (1989);

and Welch v. Texas Highways and Public Transportation Department, 483 US 468 (1987).

6 FMC v. South Carolina State Ports Authority, slip opinion at 23 (Thomas) and 17 (Breyer).

7 For a convincing argument on this score, see Timothy Conlan and Francois Vergniolle De

Chantal, “The Rehnquist Court and Contemporary American Federalism, Political Science

Quarterly, vol. 116 (Summer, 2001), pp. 265-73.

8 E.g., Solid Waste Agency v. US Army Corps of Engineers, 531 US 159 (2001).

9 E.g., .Jones v. US, 529 US 848 (2000). Justice Ginsburg’s opinion for a unanimous Court

adopted a very narrow interpretation of a federal arson statute.

10 See, for example, Jordon Streiker, “Did the Oklahoma City Bombers Succeed?” The Supreme

Court’s Federalism: Real or Imagined? (Sage, 2001), and Katy Harriger, “The Federalism Debate

in the Transformation of Federal Habeas Corpus Law,” 27 Publius 3 (1997)

11 This category of lawsuits—private suits brought in federal court to force subnational

governments to comply with statutory mandates and conditions—have received virtually no

attention in the political science literature. The major exception is Michael Greve, who has called

attention to the importance of these cases in Real Federalism: Why It Matters, How it Could

Happen (AEI, 1999), ch. 4; and in “Federalism, Yes. Activism, No.” Federalism Outlook #7, AEI,

July, 2001. It was Greve’s work that first alerted me to the importance of the Sandoval and

Westside Mothers cases discussed in the second half of this paper. The importance of Rehnquist

Court opinions for this cat