Section 1983 and the Spending Power: Enforcement of Federal "Laws"
Report for Congress
Section 1983 and the Spending Power:
Enforcement of Federal “Laws”
September 12, 2002
George Costello
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress
Section 1983 and the Spending Power: Enforcement of
Federal “Laws”
Summary
In Gonzaga University v. Doe, the Supreme Court in 2002 held that a
student may not sue a private university for damages under 42 U.S.C. § 1983 to
enforce provisions of the Family Educational Rights and Privacy Act of 1974
(FERPA). Section 1983, derived from the Civil Rights Act of 1871, authorizes suits
against state officials and others acting “under color” of state law for deprivation of
rights derived from the “Constitution and laws” of the United States. In 1980, in
Maine v. Thiboutot, the Court interpreted section 1983 broadly to apply to all federal
“laws,” not just civil rights laws. Since 1980, the Court has been divided over how
to apply section 1983 to rights derived from federal spending statutes that provide
federal money to states on condition that states use the money to implement federal
programs and policies. The general rule, applicable until 1992, recognized a
presumption that individual rights created by spending statutes are enforceable in
section 1983 actions. The Court in Gonzaga confirmed a 1992 interpretation, based
on the contractual nature of Congress’s spending power, that imposes a clear
statement rule and reverses the presumption. Under Gonzaga, no right to sue under
section 1983 is created unless Congress does so in clear and unambiguous terms. A
statutory decision with strong constitutional underpinnings, Gonzaga can be viewed
as an important element of the Court’s federalism jurisprudence. The case also
represents a victory for Chief Justice Rehnquist, who has consistently opposed broad
applicability of section 1983, and now apparently has a majority that supports his
position. The implications for congressional drafting are clear: if Congress wishes
to create rights in private individuals and make those rights enforceable, it should do
so explicitly.
Contents
Background – 42 U.S.C. § 1983......................................1
Maine v. Thiboutot.................................................2
Exceptions .......................................................3
Pennhurst – No “Right” Created..................................3
Sea Clammers – Statute Precludes Section 1983 Remedy..............4
Application of General Rule.........................................5
Effective Overruling...............................................6
From Wilder to Gonzaga........................................6
Gonzaga .....................................................7
Implications for Drafting............................................9
Section 1983 and the Spending Power:
Enforcement of Federal “Laws”
In Gonzaga University v. Doe, 122 S. Ct. 2268 (2002), the Supreme Court held
that a student may not sue a private university for damages under 42 U.S.C. § 1983
to enforce provisions of the Family Educational Rights and Privacy Act of 1974
(FERPA). The holding itself would not be especially noteworthy had it been based
on a straightforward reading of the statute. The Court, however, announced a broad
rule derived from the nature of Congress’s spending power, and in doing so
confirmed an interpretation that greatly narrows the availability of section 1983 as
a means of enforcing private rights to sue state officials, if those rights are derived
from a federal spending statute. The Gonzaga decision can therefore be viewed as
an important element of the Court’s federalism jurisprudence. The case also
represents a victory for Chief Justice Rehnquist, who has consistently opposed broad
applicability of section 1983, and now apparently has a majority that supports his
position. The implications for congressional drafting are clear: if Congress wishes
to create rights in private individuals and make those rights enforceable, it should do
so explicitly.
Background – 42 U.S.C. § 1983
During the 1960s and 1970s citizens increasingly resorted to federal courts for
redress of grievances. Important legislation had been enacted (e.g., the Civil Rights
Act of 1964 and the Voting Rights Act of 1968), the Warren Court had recognized
a number of individual and civil rights, and the Court was also generally receptive
to judicial review. Several means were available to bring suit, and these included the
doctrine of implied private rights of action as well as 42 U.S.C. § 1983. For a while,
the Court was receptive to implied private rights of action, but when the Court
tightened the rules during the 1970s, litigants increasingly looked elsewhere. Section
1983 was available for suits against state and local officials, and the Court’s decision
in Maine v. Thiboutot, 448 U.S. 1 (1980), greatly broadened its possible applicability.
42 U.S.C. § 1983, enacted as part of the Civil Rights Act of 1871, and as revised
in 1874, provides:
Every person who, under color of any statute, ordinance, regulation, custom or
usage, of any State or Territory, subjects . . . any citizen of the United States or
other person within the jurisdiction thereof to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for
redress. [emphasis added]
Maine v. Thiboutot
In Maine v. Thiboutot, the Court held that the phrase “and laws” in section 1983
is not limited to civil rights and equal protection laws – or to any other subset of
federal laws – but by its terms applies to all federal laws. Thus, the plaintiffs in that
case could sue state officials under section 1983 for denial of welfare benefits that
they allegedly were entitled to under the Social Security Act. The case was decided
by a 6-3 vote. Justice Brennan’s conclusory opinion of the Court relied on the “plain
meaning” of the statutory language1 and on a history of recent litigation in which
some courts – including the Supreme Court – had seemingly recognized section 1983
actions to enforce rights derived from the Social Security Act.2 Justice Brennan’s
opinion did not address the source of congressional power to enact the Social
Security Act (the spending power).
Justice Powell’s dissent in Thiboutot, joined by then-Justice Rehnquist as well
as by Chief Justice Burger, looked to the origins of section 1983 to counter the
majority’s assertions. Section 1 of the Civil Rights Act of 1871, from which section
1983 is derived, did not contain the phrase “and laws,” but instead provided
jurisdiction and a remedy for deprivations of rights secured by “the Constitution of
the United States.” The phrase “and laws” was added by the Revised Statutes of
Moreover, the Revised Statutes had divided section 1 into different sections by
separating the remedy from the jurisdiction-conferring statute (now 28 U.S.C. §
1343(3)). Jurisdiction was extended only for claims secured by the Constitution or
“by any Act of Congress providing for equal rights of citizens or of all persons within
the jurisdiction of the United States.” Justice Powell argued that Congress could not
have intended to extend section 1983 “beyond the reach of its jurisdictional
counterpart.”3 Because of their common origin and purpose, the two provisions
(§ 1983 and § 1343(3)) “were meant to be, and are, complementary,” the Court had
held prior to Thiboutot.4 Justice Powell also voiced concerns over the federalism
implications of the Court’s holding. No corresponding action is possible against
federal officials implementing cooperative federal-state programs, yet the Court’s
interpretation conferred on courts “unprecedented authority to oversee state actions
1 “Given that Congress attached no modifiers to the phrase [and laws], the plain language
of the statute undoubtedly embraces respondents’ claim that petitioners violated the Social
Security Act.” 448 U.S. at 4. Dissenting Justice Powell offered a plain-meaning rebuttal.
The majority read the phrase as if it said “Constitution or laws” rather than “Constitution
and laws.” Attaching significance to the choice of “and” narrows section 1983's scope to
those laws that protect constitutional as well as statutory rights.
2 Principal reliance was placed on Rosado v. Wyman, 397 U.S. 397 (1970), which had
involved a pendent section 1983 claim, but other decisions were also cited. 448 U.S. at 4-6.
3 448 U.S. at 19-20.
4 448 U.S. at 21 (quoting Examining Bd. v. Flores de Otero, 426 U.S. 572, 583 (1976)).
that have little or nothing to do with the individual rights defined and enforced by the
civil rights legislation of the Reconstruction era.”5
Exceptions
A year later, the sweep of Thiboutot was limited somewhat by the Court’s
decisions in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981),
and Middlesex County Sewerage Authority v. National Sea Clammers Association,
453 U.S. 1 (1981). Two categories of exceptions were created, one for statutes with
language too vague or amorphous to create rights, and the other for statutes with
comprehensive remedial mechanisms leaving no room for supplementation by way
of section 1983 actions.
Pennhurst – No “Right” Created
The Court in Pennhurst held that, despite its name, the Developmentally
Disabled Assistance and Bill of Rights Act does not create rights in individuals that
are enforceable in a section 1983 action. Justice Rehnquist wrote the Court’s
opinion.6 The Act, which provided federal grants to states to develop programs to
care for and treat mentally retarded persons, also contained a section captioned
“rights of the developmentally disabled.” This “bill of rights” consisted of
congressional findings that disabled persons “have a right to appropriate treatment,
services, and habilitation,” and that states and the federal government have an
“obligation” to provide services that are “appropriate to the needs of such persons.”
There were two aspects to the decision.
On its facts, the case was distinguishable and fairly narrow. Read as a whole,
the Act was “a mere federal-state funding statute.” The bill of rights section was
merely a “general statement” of congressional findings, in a sense free-floating, and
not specifically tied to a state’s acceptance of federal funding. Thus, the Act as a
whole arguably did not purport to create judicially enforceable rights, and section
Justice Rehnquist also included general language about Congress’s spending
power – language recently relied on by the Court in Gonzaga University v. Doe:
“Legislation enacted pursuant to the spending power is much in the nature of a
contract. . . . The legitimacy of Congress’ power to legislate under the spending
power thus rests on whether the State voluntarily and knowingly accepts the terms
of the ‘contract.’ . . . Accordingly, if Congress intends to impose a condition on the
5 448 U.S. at 25. To “illustrate the nature of the ‘civil rights’ created by the Court’s
decision,” Justice Powell included an appendix listing a “sample” of federal statutes,
including grant programs, that could give rise to a section 1983 action. The Justice grouped
statutes into three broad categories – “joint regulatory endeavors,” “resource management
programs that may be administered by cooperative agreements,” and “grant programs.” Id.
at 34.
6 Justice Rehnquist’s opinion was joined by Chief Justice Burger, and by Justices Stewart,
Powell, and Stevens. Justice Blackmun concurred separately. Justice White dissented,
joined by Justices Brennan and Marshall.
grant of federal moneys, it must do so unambiguously.”7 The issue was not,
therefore, whether the Act purported to create rights in individuals, but “whether
Congress in § 6010 imposed an obligation on the States to spend state money to fund
[those] rights as a condition of receiving federal moneys . . . or whether it spoke
merely in precatory terms.”8
Sea Clammers – Statute Precludes Section 1983 Remedy
In Sea Clammers, the Court held that the Clean Water Act and the Marine
Protection, Research, and Sanctuaries Act both contained a comprehensive remedial
scheme – including specific authorization for citizen suits – that left no room for
additional private actions under section 1983. “When the remedial devices provided
in a particular Act are sufficiently comprehensive, they may suffice to demonstrate
congressional intent to preclude the remedy of suits under 1983. . . . It is hard to
believe that Congress intended to preserve the § 1983 right of action when it created
so many specific statutory remedies including the two citizen-suit provisions.”9
Similarly, in Smith v. Robinson,10 the Court held that the Education of the
Handicapped Act’s “carefully tailored administrative and judicial mechanism”
created exclusive remedies that left no room for supplementation through section
That section 1983's applicability was the general rule, and that Pennhurst and
Sea Clammers were viewed as the exceptions to the rule, was evident in the Court’s
approach in cases involving the housing and Medicaid programs.
[I]f there is a state deprivation of a ‘right’ secured by a federal statute, § 1983
provides a remedial cause of action unless the state actor demonstrates by
express provision or other specific evidence from the statute itself that Congress11
intended to foreclose such private enforcement.
7 451 U.S. at 17.
8 451 U.S. at 18.
9 453 U.S. at 20. The vote was 7-2 on the section 1983 issue. Justice Powell’s opinion of
the Court was joined by Chief Justice Burger, and by Justices Brennan, Stewart, White,
Marshall, and Rehnquist. Justice Stevens, joined by Justice Blackmun, dissented in part,
arguing that a private damages remedy was precluded not by the comprehensiveness of the
remedial schemes (both laws had savings clauses), but rather because neither statute was
enacted “for the special benefit of a particular class of which the plaintiff is a member.” 453
U.S. at 32.
10 468 U.S. 992, 1009-12 (1994).
11 Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423
(1987). This was a 5-4 decision. Justice White wrote the opinion of Court, and was joined
by Justices Brennan, Marshall, Blackmun, and Stevens. Justice O’Connor, joined by Chief
Justice Rehnquist and Justices Powell, and Scalia, dissented.
Application of General Rule
In Wright v. City of Roanoke Redevelopment and Housing Authority, the Court
held that a public housing tenant could bring a section 1983 action to compel the
local housing authority to comply with the Brooke Amendment to the Housing Act
of 1937. The Brooke Amendment imposed a rent ceiling on low-income housing
units funded by the Act, and HUD regulations specified that “rents” subject to the
ceiling include a “reasonable” allowance for utilities. The Court majority brushed
aside the issue of whether the statute and regulation conferred enforceable rights on
tenants, asserting that the existence of such rights was “undeniable.” The Court also
rejected the lower courts’ conclusion that HUD had the exclusive authority to enforce
the tenants’ rights. The remedial devices were not sufficiently comprehensive, the
Court explained, and, moreover, there were other indications that Congress had not
intended to preclude private actions. Congress had explicitly precluded judicial
review of one relatively narrow issue (HUD’s implementation of a phase-in of rent
increases), based on HUD’s assurances that the limitation would not otherwise affect
tenants’ ability to enforce their rights in federal court. The Court concluded that
“nothing in the Housing Act or the Brooke Amendment evidences that Congress
intended to preclude petitioners’ § 1983 claim.”12
A similar approach was taken in Wilder v. Virginia Hospital Association,13 in
which the Court held that health care providers could bring a section 1983 action to
enforce a reimbursement provision contained in the Boren Amendment to the
Medicaid Act. The context was a federal grant to states. The Boren Amendment
required that a state’s plan for medical assistance provide for reimbursement of
services, with assurances “satisfactory to the Secretary” that the reimbursements
would be “reasonable and adequate” for efficiently run facilities. The Court
determined that this language granted health care providers a substantive and
enforceable right to reasonable and adequate compensation. Distinguishing
Pennhurst, the Court ruled that the language was not so “vague and amorphous” as
to be unenforceable. Even though the Secretary was authorized to withhold funds for
a state’s non-compliance, the Court thought that private actions were not foreclosed.
Federal court suits by providers had been commonplace before enactment of the
Boren Amendment, and the amendment did not eliminate the basis for these actions.
The burden was on the state to show that Congress had intended to foreclose private
actions, and the remedial scheme was not so comprehensive as to merit such an
inference. Also, “the availability of administrative procedures ordinarily does not14
foreclose resort to § 1983.”
12 479 U.S. at 429.
13 496 U.S. 498 (1990). Justice Brennan wrote the Opinion of Court, and was joined by
Justices White, Marshall, Blackmun, and Stevens. Chief Justice Rehnquist dissented, joined
by Justices O’Connor, Scalia, and Kennedy.
14 496 U.S. at 523.
A two-part test had emerged, first distilled in Golden State Transit Corporation
v. City of Los Angeles,15 and then restated in Wilder.16 The first part of the test,
whether the statute created an enforceable right, broke down into three sub-issues:
(1) is the provision in question designed to benefit the putative plaintiff, (2) does the
provision create obligations binding on the government, or is it merely an expression
of congressional preference, and (3) is the interest “too vague and amorphous” to be
enforceable by the judiciary? The test’s second part was whether Congress had
specifically foreclosed a remedy under section 1983. Here the burden is on the state
to show “by express provision or other specific evidence from the statute itself that
Congress intended to foreclose such private enforcement.”17
Effective Overruling
Although the law seemed relatively settled on the proper approach to section
1983 actions seeking to enforce rights derived from spending statutes, both Wright
and Wilder had been decided by 5-to-4 votes, and changed membership on the Court
resulted in a quick about-face. Between Wilder in 1990 and Suter v. Artist M. in
1992, Justice Brennan had been replaced by Justice Souter, and Justice Marshall had
been replaced by Justice Thomas. Both new Justices sided with the Chief Justice in
Suter, and Rehnquist had obtained a majority to support his position. By 2002, the
Chief Justice was able to say that “[o]ur more recent decisions . . . have rejected18
attempts to infer enforceable rights from Spending Clause statutes.” Rather,
Pennhurst has become the general rule, and Wright and Wilder had come to be
viewed as the exceptions: “Since Pennhurst, only twice have we found spending
legislation to give rise to enforceable rights.”19
From Wilder to Gonzaga
The path from Wilder to Gonzaga began (and almost ended) with Suter v. Artist
M.20 Gonzaga followed directly from Suter. In between, however, the Court had
applied the Wright-Wilder framework of analysis rather than the Pennhurst
framework in a case in which the Court held unanimously that the statute did not
create a right enforceable under section 1983,21 so some question may have remained
about the guiding principles.
15 493 U.S. 103, 106 (1989) (Justice Stevens for a 6-3 Court majority) (not a spending power
case).
16 496 U.S. at 509, 520.
17 496 U.S. at 520-21.
18 Gonzaga University v. Doe, 122 S. Ct. 2268, 2274 (2002).
19 122 S. Ct. at 2273.
20 503 U.S. 347 (1992).
21 Blessing v. Freestone, 520 U.S. 329 (1997).
In Suter v. Artist M.,22 the Court held that no right enforceable under section
which required states receiving funding to have a plan to make “reasonable efforts”
to keep children out of foster homes. Rejecting an action alleging that no such
reasonable efforts had been made, the Court concluded that “careful examination of
the [statutory] language does not unambiguously confer an enforceable right upon the
Act’s beneficiaries.”23 Moreover, the implementing regulations were not specific,
and did not provide notice to the states that failure to do anything other than submit
a plan with the requisite features, to be approved by the Secretary, is a condition on
the receipt of funds from the Federal Government. While the Court could have
followed Pennhurst on the facts, finding that the statutory language was too vague
and amorphous to create enforceable rights, it also seemed to reject the approach of
Wright and Wilder altogether. Rather than emphasizing the state’s burden to show
that Congress had intended to preclude review, the Court instead emphasized the
plaintiff’s burden to establish that Congress had unambiguously authorized review.
Muddying the waters a bit was the Court’s 1997 decision in Blessing v.
Freestone.24 The Court’s unanimous holding was not surprising: no right enforceable
under section 1983 was conferred by title IV-D of the Social Security Act, which
requires states receiving child welfare funding to “substantially comply” with
requirements designed to ensure timely payment of child support. “Far from creating
an individual entitlement to services,” the Court concluded, “the standard is simply
a yardstick for the Secretary to measure the systemwide performance of a State’s
Title IV-D program.” What was a bit surprising is that the Court relied on the Wright
framework rather than the Pennhurst/Suter approach.
Gonzaga
In 2002, the Court reverted to the Pennhurst/Suter approach to hold that the
Family Educational Rights and Privacy Act of 1974 (FERPA) creates no individual
rights that are enforceable under section 1983. Gonzaga University v. Doe was
decided by a 7-to-2 vote, but there was only a 5-to-4 majority supporting the25
Pennhurst/Suter rationale. Justice Breyer, joined by Justice Souter, concurred on
the facts, but objected to use of a presumption to “in effect, pre-determine an26
outcome.”
22 Suter was a 7-2 decision, with Justices White, O’Connor, Scalia, Kennedy, Souter, and
Thomas joining Chief Justice Rehnquist’s opinion of the Court. Dissenting was Justice
Blackmun, joined by Justice Stevens. Justice White’s switch to the Chief Justice’s position,
along with the votes of the two new Justices, Souter and Thomas, accounted for the different
lineup Court majority.
23 503 U.S. at 363.
24 520 U.S. 329 (1997).
25 Chief Justice Rehnquist’s opinion of the Court was joined by Justices O’Connor, Scalia,
Kennedy, and Thomas. Justice Breyer, joined by Justice Souter concurred. Justice Stevens,
joined by Justice Ginsburg, dissented.
26 122 S. Ct. at 2279.
FERPA is a typical federal spending statute that places authority to allocate
grants, as well as primary enforcement authority, in a federal official. It provides in
part that funds shall not be provided to any educational institution “which has a
policy or practice of permitting the release of education records . . . of students
without the written consent of their parents to any individual, agency, or
organization.” Funding may be terminated if the Secretary of Education finds that
a recipient institution “is failing to comply substantially with any requirement of [the
Act].”27 Applying Pennhurst, the Court majority determined that Congress had not
spoken “with a clear voice” in creating rights in students and their parents. The
Court also moved to eliminate “confusion” attributed to Blessing’s reliance on the
Wilder framework. In doing so, the Court added a new twist, declaring that the same
standard (“no less and no more”) used to determine whether a statute creates a private
right of action determines whether a statute confers rights enforceable under section
1983.28 The issue in both inquiries is “whether Congress intended to create a federal
right.” The answer was clear to the Court. “There is no question that FERPA’s
nondisclosure provisions fail to confer enforceable rights.” FERPA’s provisions
“speak only to the Secretary of Education,” and speak only of “institutional policy
and practice,” not of individual instances of disclosure. FERPA’s focus, therefore,
is “two steps removed from the interests of individual students and parents.”29
Justice Stevens’ dissent criticized the Court’s approach for seeming to conflate
the two separate inquiries of whether there is a right and whether there is a remedy.
While the language from the majority opinion quoted above is focused on the issue
of whether there is a “right,” Justice Stevens pointed to other language of the
majority (“it is implausible to presume that . . . Congress intended private suits to be
brought before thousands of federal- and state-court judges”)30 that is directed instead
at the remedy. This definition of a right in terms of enforcement, Justice Stevens
asserted, “has eroded – if not eviscerated – the long-established principle of
presumptive enforceability of rights under § 1983.”31 Justice Stevens also objected
to the Court’s merging of section 1983 analysis and implied private right of action
analysis. Heretofore, the Court had treated the two categories separately “because
Congress expressly authorized private suits in § 1983 itself.” Consequently, Justice
Stevens asserted, the separation-of-powers concern underlying the approach to
implied actions – that Congress rather than the courts should control the availability
of remedies – is not relevant to section 1983 actions.32
27 20 U.S.C. § 1232g(b)(1) (funding restriction); 20 U.S.C. § 1234c(a) (enforcement).
28 122 S. Ct. at 2275-79.
29 122 S. Ct. at 2277.
30 122 S. Ct. at 2279.
31 122 S. Ct. at 2285.
32 122 S. Ct. at 2284. Justice Brennan had made precisely the same point in his opinion of
the Court in Wilder. 496 U.S.at 508, n.9.
Implications for Drafting
For now, it appears that Chief Justice Rehnquist has carried the day, and that the
contractual theory of the spending power that he set forth in Pennhurst and applied
in Gonzaga now governs determination of whether laws enacted under the spending
power create private rights that are enforceable through section 1983 actions. As
Justice Breyer suggested in his Gonzaga concurrence, this test is strongly result-
determinative. And the same could be said for the Wilder approach. The Court has
seemingly veered from one extreme to the other, i.e., from a presumption that a
section 1983 remedy is available whenever Congress has used rights-conferring
language without also including strong evidence that it intended to foreclose section
1983 action, to a presumption that no enforceable rights have been created unless
Congress has said so in unmistakably clear terms. Results are usually determined by
which test is applied, and not by real differences among the spending statutes at
issue. Compare, for example, the holdings in Wright and Wilder with that in Suter:
statutes requiring a “reasonable” rent allowance for utilities, and “reasonable and
adequate” reimbursement of health care providers were held to create enforceable
rights, while a statute requiring “reasonable efforts . . . in each case” to avoid placing
children in foster care was held not to create enforceable rights.33
The implications for drafting are clear. As long as the presumption against
enforceable section 1983 rights governs, Congress will need to spell out any intent
it may have to create such rights. And given the majority’s language in Gonzaga,
explicit reference to section 1983 would be advisable. Anything less may be
ineffective. Pennhurst and Gonzaga both demonstrate that including the term “right”
or “rights” in the statute does not necessarily suffice to create rights enforceable
under section 1983. Moreover, there’s a problem with statutory context. “Rights”
not connected to terms and conditions of a state’s spending program may be viewed
as free-floating and merely precatory, as in Pennhurst. On the other hand, if
protecting a “right” is included as a requirement of a state plan that must be approved
by a federal official in order for the state to qualify for funding, and the federal
official is given the responsibility for monitoring state compliance and withholding
funds in cases of substantial non-compliance, then the Court may employ its
contractual theory of conditional grants to rule that additional remedies are
inappropriate.
Prospective action may not be all that is required. Congress may have to revisit
spending statutes if it wants to authorize private actions that at the time of enactment
it may have assumed were available. In none of these spending cases did the Court
focus extensively on what the enacting Congress intended; instead, the principal
focus has been on the actual statutory language and structure. The Court has
demonstrated a willingness to impose clear statement rules retroactively on statutes
33 Note that Wright and Wilder had the same 5-to-4 alignment of Justices, except that Justice
Kennedy had replaced Justice Powell on the dissenting side. As indicated above, n.22, the
replacement of two Justices, as well as Justice White’s unexplained change of positions,
accounted for the different alignments in Wilder and Suter.
enacted when no such clear statement requirement had been announced.34 Indeed,
Congress responded to the Court’s decision in Suter with amendments designed to
counter one aspect of the Court’s interpretation.35
34 See, e.g., Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) (Rehabilitation Act of
1973, which authorized remedies against “any recipient of Federal assistance,” did not
express in unmistakably clear terms a congressional intent to abrogate a state’s Eleventh
Amendment immunity).
35 42 U.S.C. § 1320a-2, enacted by Pub. L. 103-382, § 555(a), 108 Stat. 4057 (1994); and
42 U.S.C. § 1320a-10, enacted by Pub. L. 103-432, 108 Stat. 4460. The two identically
worded provisions provided that, “[i]n an action brought to enforce a provision of this
chapter, such provision is not to be deemed unenforceable because of its inclusion in a
section of this chapter requiring a State plan or specifying the required contents of a State
plan.” The language expressly declared an intent to “overturn[ ] any such grounds applied
in Suter v. Artist M.” but disclaimed an intent to alter that case’s holding.