Health and Hospital Corporation of Marion Cty. v. Talevski ( 2023 )

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HEALTH AND HOSPITAL CORPORATION OF MARION
COUNTY ET AL. v. TALEVSKI, AS PERSONAL
REPRESENTATIVE OF THE ESTATE OF TALEVSKI
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SEVENTH CIRCUIT
No. 21–806. Argued November 8, 2022—Decided June 8, 2023
After Gorgi Talevski’s move to a nursing home in 2016 proved problem-
atic, Talevski (through his wife Ivanka) brought an action under 42 U.
S. C. §1983 against a county-owned nursing home and its agents (col-
lectively, HHC), claiming that HHC’s treatment of Talevski violated
rights guaranteed him under the Federal Nursing Home Reform Act
(FNHRA). The District Court granted HHC’s subsequent motion to
dismiss Talevski’s complaint, reasoning that no plaintiff can enforce
provisions of the FNHRA via §1983. The Seventh Circuit reversed,
concluding that the rights referred to in two FNHRA provisions in-
voked by Talevski—the right to be free from unnecessary chemical re-
straints, see §1396r(c)(1)(A)(ii), and rights to be discharged or trans-
ferred only when certain preconditions are met, see §1396r(c)—
“unambiguously confer individually enforceable rights on nursing-
home residents,” making those rights presumptively enforceable via
§1983. 6 F. 4th 713, 720. The Seventh Circuit further found nothing
in the FNHRA to indicate congressional intent to foreclose §1983 en-
forcement.
Held: The FNHRA provisions at issue unambiguously create §1983-en-
forceable rights, and the Court discerns no incompatibility between
private enforcement under §1983 and the remedial scheme that Con-
gress devised. Pp. 5–23.
(a) Section 1983 has, since the 1870s, provided an express cause of
action to any person deprived (by someone acting under color of state
law) of “any rights . . . secured by the Constitution and laws.” The
Court has long refused to read §1983’s unmodified term “laws” to mean
2 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
Syllabus
only some of the laws. Maine v. Thiboutot, 448 U. S. 1, 6. Looking to
history, HHC attempts to sow doubt about §1983’s textually unquali-
fied sweep, and proffers a Spending Clause-based argument to narrow
§1983’s meaning. But a fuller picture of the relevant history lends
HHC no aid.
The Court is unpersuaded by HHC’s argument that, because Con-
gress seems to have enacted the FNHRA pursuant to the Spending
Clause, Talevski cannot invoke §1983 to vindicate rights recognized by
the FNHRA. HHC starts with the Court’s observation that federal leg-
islation premised on the Spending Clause power is “much in the nature
of a contract,” Pennhurst State School and Hospital v. Halderman, 451
U. S. 1, 17. From there, HHC argues that Spending Clause statutes
may not be enforced via §1983 because contracts were not generally
enforceable by third-party beneficiaries at when §1983 was enacted in
the 1870s. The Court rejects HHC’s argument. First, while the Court
has reasoned that Congress’s failure to displace firmly rooted common-
law principles generally indicates that it incorporated those estab-
lished principles into §1983, Wyatt v. Cole, 504 U. S. 158, 163–164,
HHC’s key common-law plank here—that third-party beneficiaries
could not sue to enforce contractual obligations during the relevant
time—is, at a minimum, contestable. “[S]omething more than ‘ambig-
uous historical evidence’ is required [to] ‘flatly overrule a number of
major decisions of this Court,’ ” Gamble v. United States, 587 U. S.
___, ___. Second, because “[t]here is no doubt that the cause of action
created by §1983 is, and was always regarded as, a tort claim,” Monte-
rey v. Del Monte Dunes at Monterey, Ltd., 526 U. S. 687, 727 (Scalia,
J., concurring in part and concurring in judgment), HHC’s focus on
1870s law governing third-party-beneficiary suits in contract is per-
plexing, and HHC offers no reason those principles should be read to
displace the plain scope of “laws” in §1983. Pp. 5–10.
(b) Under the Court’s precedent, the FNHRA provisions at issue
here unambiguously confer individual federal rights enforceable under
§1983, and the Court discerns no intent by Congress in FNHRA to pre-
clude private enforcement of these rights under §1983. Pp. 11–23.
(1) Although federal statutes have the potential to create §1983-
enforceable rights, they do so under this Court’s precedents only when
the statute unambiguously confers those rights. The Court has recog-
nized that the typical remedy for noncompliance with a federal statute
enacted pursuant to the Spending Clause is not a private cause of ac-
tion for noncompliance but rather termination of funds to the State.
See Gonzaga Univ. v. Doe, 536 U. S. 273, 280. The parties here thus
dispute whether this is the atypical case; that is, whether the unnec-
essary-restraint and predischarge-notice provisions of the FNHRA
Cite as: 599 U. S. ____ (2023) 3
Syllabus
“unambiguously confe[r]” individual rights, making those rights “pre-
sumptively enforceable” under §1983. Id., at 283–284.
Gonzaga sets forth the Court’s established method for ascertaining
unambiguous conferral. Courts must employ traditional tools of stat-
utory construction to assess whether Congress has “unambiguously
conferred” “individual rights upon a class of beneficiaries” to which the
plaintiff belongs. Id., at 283, 285–286. Notably, it must be determined
that “Congress intended to create a federal right” for the identified
class, not merely that the plaintiffs fall “within the general zone of in-
terest that the statute is intended to protect.” Id., at 283 (emphasis
deleted). The test for unambiguous conferral is satisfied where the
provision in question is “ ‘phrased in terms of the persons benefited’ ”
and contains “rights-creating,” individual-centric language with an
“ ‘unmistakable focus on the benefited class.’ ” Id., at 284, 287 (empha-
sis deleted). If a statutory provision surmounts this significant hurdle,
it “secures” individual rights that are deemed “presumptively enforce-
able” under §1983. Id., at 284.
The unnecessary-restraint and predischarge-notice provisions in
FNHRA that Talevski’s complaint invokes meet this test. The FNHRA
lays out a litany of statutory “[r]equirements relating to residents’
rights,” §1396r(c). The unnecessary-restraint provision requires nurs-
ing facilities to “protect and promote” residents’ “right to be free from
. . . any physical or chemical restraints . . . not required to treat the
resident’s medical symptoms.” §1396r(c)(1)(A)(ii). The predischarge-
notice provision imposes preconditions that a nursing facility must
meet to “transfer or discharge [a] resident.” §§1396r(c)(2)(A)–(B). Both
provisions reside in §1396r(c), which expressly concerns “[r]equire-
ments relating to residents’ rights.” Ibid. (emphasis added). This fram-
ing is indicative of an individual “rights-creating” focus. Gonzaga, 536
U. S., at 284. That these two provisions also establish who must com-
ply with these statutory rights (namely, the Medicaid-participant
nursing homes) does not dispel the statute’s focus on the nursing-home
residents, i.e., the benefited class. The provisions use clear “rights-
creating language,” speak “ ‘in terms of the persons benefited,’ ” and
have an “ ‘unmistakable focus on the benefited class.’ ” Id., at 284, 287,
290 (emphasis deleted). Thus, they satisfy Gonzaga’s stringent stand-
ard, and the rights they recognize are presumptively enforceable under
§1983. Pp. 11–17.
(2) Even if a statutory provision unambiguously secures rights, a
defendant “may defeat [the] presumption by demonstrating that Con-
gress did not intend” that §1983 be available to enforce those rights.
Rancho Palos Verdes v. Abrams, 544 U. S. 113, 120. Evidence of such
intent may be found expressly in the statute creating the right, or im-
4 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
Syllabus
plicitly, by creating “a ‘comprehensive enforcement scheme that is in-
compatible with individual enforcement under §1983,” ibid. Here, the
Court finds evidence of neither. The FNHRA establishes a detailed
administrative scheme for inspections of nursing facilities, see
§1396r(g), and authorizes governments to sanction and correct non-
compliant facilities, see §1396r(h). But the statute lacks any indicia of
congressional intent to preclude §1983 enforcement, such as an ex-
press private judicial right of action or any other provision that might
signify that intent. HHC focuses on comprehensiveness of FNHRA’s
enforcement mechanisms, but implicit preclusion is shown only by a
“ ‘comprehensive enforcement scheme that is incompatible with indi-
vidual enforcement under §1983.’ ” Fitzgerald v. Barnstable School
Comm., 555 U. S. 246, 252 (emphasis added). The Court’s prior cases
finding implicit preclusion involved statutes where private enforce-
ment under §1983 would have thwarted Congress’s scheme by circum-
venting the statutes’ presuit procedures, or by giving plaintiffs access
to tangible benefits otherwise unavailable under the statutes con-
strued. HHC has identified no equivalent sign of incompatibility in
the FNHRA, which lacks a private judicial right of action, a private
federal administrative remedy, or any “carefu[l]” congressional “tai-
lor[ing],” Fitzgerald, 555 U. S., at 255, that §1983 actions would “dis-
tort,” Rancho Palos Verdes, 544 U. S., at 127. Finally, the Court re-
jects any speculation that because Congress knew most nursing homes
are private entities not subject to suit under §1983, the FNHRA’s re-
medial scheme “necessarily reflects Congress’s judgment that these
administrative enforcement mechanisms appropriately protect the
rights the statute confers,” Brief for United States as Amicus Curiae
31. The focus in the implicit-preclusion inquiry remains whether
something in the FNHRA has foreclosed §1983’s “genera[l]” availabil-
ity as “a remedy for the vindication of rights secured by federal stat-
utes.” Gonzaga, 536 U. S., at 284. The Court sees no such sign, much
less a license for the Court to construct and impute to Congress an
intent that the FNHRA does not embody. Pp. 17–23.
6 F. 4th 713, affirmed.
JACKSON, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, and BARRETT, JJ.,
joined. GORSUCH, J., filed a concurring opinion. BARRETT, J., filed a con-
curring opinion, in which ROBERTS, C. J., joined. THOMAS, J., filed a dis-
senting opinion. ALITO, J., filed a dissenting opinion, in which THOMAS,
J., joined.
Cite as: 599 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers are requested to notify the Reporter of
Decisions, Supreme Court of the United States, Washington, D. C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–806
_________________
HEALTH AND HOSPITAL CORPORATION OF MARION
COUNTY, ET AL., PETITIONERS v. IVANKA TALEVSKI,
AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF GORGI TALEVSKI, DECEASED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 8, 2023]
JUSTICE JACKSON delivered the opinion of the Court.
The Federal Nursing Home Reform Act (FNHRA or Act)
ensures that nursing homes that receive Medicaid funding
respect and protect their residents’ health, safety, and dig-
nity. Provisions of the FNHRA refer to rights of nursing-
home residents to be free from unnecessary physical or
chemical restraints and to be discharged or transferred only
when certain preconditions are satisfied. This case is about
these particular provisions and whether nursing-home res-
idents can seek to vindicate those FNHRA rights in court.
Respondent Ivanka Talevski maintains that she can en-
force the rights these particular FNHRA provisions de-
scribe via 42 U. S. C. §1983, which, since the 1870s, has pro-
vided an express cause of action to any person deprived (by
someone acting under color of state law) of “any rights . . .
secured by the Constitution and laws.” Petitioners insist
that respondent is wrong about being able to rely on §1983
in this context, for two independent reasons. First, peti-
tioners urge us to discard our longstanding recognition that
2 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
Opinion of the Court
§1983’s unqualified reference to “laws” “means what it
says,” Maine v. Thiboutot, 448 U. S. 1, 4 (1980), and to rule
instead that §1983 contains an implicit carveout for laws
that Congress enacts via its spending power—a holding
that, according to petitioners, would mean that §1983 could
not be used to enforce any rights the FNHRA purports to
recognize. In the alternative, petitioners point to our estab-
lished methods for determining whether a statutory provi-
sion creates a §1983-enforceable right and maintain that
these FNHRA provisions do not create rights that nursing-
home residents can enforce via §1983.
We reject both propositions. “Laws” means “laws,” no less
today than in the 1870s, and nothing in petitioners’ appeal
to Reconstruction-era contract law shows otherwise. Con-
sequently, as we have previously held, §1983 can presump-
tively be used to enforce unambiguously conferred federal
individual rights, unless a private right of action under
§1983 would thwart any enforcement mechanism that the
rights-creating statute contains for protection of the rights
it has created. Fitzgerald v. Barnstable School Comm., 555
U. S. 246, 253–255 (2009); Gonzaga Univ. v. Doe, 536 U. S.
273, 284, and n. 4 (2002). We hold that the two FNHRA
provisions at issue here do unambiguously create §1983-en-
forceable rights. And we discern no incompatibility be-
tween private enforcement under §1983 and the statutory
scheme that Congress has devised for the protection of
those rights. Accordingly, we affirm the lower court’s judg-
ment that respondent’s §1983 action can proceed in court.
I
In 2016, when Gorgi Talevski’s dementia progressed to
the point that his family members could no longer care for
him, they placed him in petitioner Valparaiso Care and Re-
habilitation’s (VCR) nursing home.1 When he entered VCR,
——————
1 We rely for these facts on the operative complaint’s well-pleaded al-
legations. See Walden v. Fiore, 571 U. S. 277, 281, n. 2 (2014).
Cite as: 599 U. S. ____ (2023) 3
Opinion of the Court
Mr. Talevski could talk, feed himself, walk, socialize, and
recognize his family. Later in 2016, however, Mr. Talev-
ski’s condition suddenly deteriorated. He became unable to
eat on his own and began losing the ability to communicate
in English (leaving him to rely primarily on Macedonian,
his native language).
VCR staff claimed this was dementia’s natural progres-
sion. But Mr. Talevski’s daughter suspected, and then con-
firmed with outside physicians, that VCR was chemically
restraining Mr. Talevski with six powerful psychotropic
medications. With the help of an outside neurologist, his
medication was tapered down, and he began to regain the
ability to feed himself. Around this time, the Indiana State
Department of Health (Department) conducted its periodic
inspection of VCR, and the Talevskis filed a formal com-
plaint with the inspectors regarding the chemical re-
straints.
The problems did not end there. Toward the end of 2016,
VCR began asserting that Mr. Talevski was harassing fe-
male residents and staff. Based on that claim, VCR began
sending Mr. Talevski to a psychiatric hospital 90 minutes
away for several days at a time. VCR readmitted Mr. Talev-
ski the first two times it sent him away. But the third time,
instead of accepting him back, VCR tried to force his per-
manent transfer to a dementia facility in Indianapolis. It
executed these changed circumstances without first notify-
ing Mr. Talevski or his family.
The Talevskis filed a complaint with the Department re-
garding Mr. Talevski’s forced transfer. While the complaint
was pending, Mr. Talevski had to stay at another facility
that was 90 minutes away from his family. Eventually, a
Department administrative law judge nullified VCR’s at-
tempted transfer of Mr. Talevski. Based on that determi-
nation, the Talevskis endeavored to have Mr. Talevski re-
turned to VCR. But VCR ignored the judge’s decision and
refused readmission.
4 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
Opinion of the Court
The Talevskis complained again to the Department,
which later issued a report regarding the Talevskis’ com-
plaints. Subsequently, petitioner American Senior Com-
munities LLC (ASC), which manages VCR, contacted Mr.
Talevski’s wife, Ivanka, to discuss the possibility of Mr.
Talevski’s return. At this point, however, Mr. Talevski had
acclimated to his new home, and the Talevskis feared retri-
bution against him if he returned to VCR. So they opted to
leave him in the new facility, which meant that every fam-
ily visit required a 3-hour round trip.
In 2019, Mr. Talevski (through Ivanka) sued VCR, ASC,
and petitioner Health and Hospital Corporation of Marion
County (collectively, HHC) under Rev. Stat. §1979, 42
U. S. C. §1983.2 The lawsuit claimed that HHC’s treatment
of Mr. Talevski—in particular, the use of chemical re-
straints and the persistent transfer attempts—had violated
rights that the FNHRA guaranteed him as a
nursing-home resident. The District Court granted HHC’s
subsequent motion to dismiss the complaint, reasoning that
no plaintiff can enforce provisions of the FNHRA via §1983.
The Court of Appeals for the Seventh Circuit reversed. It
concluded that, under this Court’s precedent, the relevant
FNHRA provisions “unambiguously confer individually en-
forceable rights on nursing-home residents,” making those
rights presumptively enforceable via §1983. 6 F. 4th 713,
720 (2021). The Court of Appeals held further that the pre-
sumption had not been rebutted here, because nothing in
the FNHRA indicated congressional intent to foreclose
§1983 enforcement of these rights. Id., at 720–721.
HHC filed a petition for certiorari, which we granted.3
——————
2 Marion County, Indiana, owns Health and Hospital Corporation,
which in turn wholly owns VCR.
3 After the Seventh Circuit’s ruling, Mr. Talevski passed away. We
granted Ivanka Talevski’s substitution motion, and substituted her as a
party at the same time we granted certiorari. See Supreme Court Rule
Cite as: 599 U. S. ____ (2023) 5
Opinion of the Court
596 U. S. ___ (2022). For the reasons explained below, we
affirm the Seventh Circuit’s judgment.
II
A
As relevant here, §1983 provides that
“[e]very person who, under color of any statute, ordi-
nance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities se-
cured 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.”
That is, any person within the jurisdiction of the United
States may invoke this cause of action against any other
person who, acting “under color of ” state law, has deprived
them of “any rights, privileges, or immunities secured by
the Constitution and laws” of the United States.
We have been asked before to narrow the scope of this
express authorization, i.e., to read “laws” to mean only “civil
rights or equal protection laws.” Thiboutot, 448 U. S., at 6.
We declined to do so, reasoning that a straightforward read-
ing of the “plain language” of §1983 is required. Id., at 4.
That should have been no surprise; “Congress attached no
modifiers to the phrase [‘and laws’].” Ibid.
Since Thiboutot, we have crafted a test for determining
whether a particular federal law actually secures rights for
§1983 purposes. See Gonzaga, 536 U. S., at 283–285; Part
III–B, infra. But we have not previously doubted that any
federal law can do so.
——————
35.1. Subsequent references to Talevski encompass both Talevskis inso-
far as Ivanka is advancing Gorgi’s interests.
6 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
Opinion of the Court
B
1
HHC attempts to sow renewed doubt about §1983’s tex-
tually unqualified sweep by proffering “historical evidence.”
Brief for Petitioners 3; see also id., at 2 (asserting that “[f]or
most of this nation’s history, individuals did not have a rec-
ognized private right to enforce obligations prescribed by
federal statutes”). As background for our evaluation of the
particulars of HHC’s Spending Clause-based argument re-
garding §1983’s meaning, see Part II–B–2, infra, a fuller
picture of the relevant historical context is warranted.
United States v. Union Pacific R. Co., 91 U. S. 72, 79 (1875);
accord, Towne v. Eisner, 245 U. S. 418, 425 (1918) (Holmes,
J., for the Court).
Before the Civil War, few direct federal protections for in-
dividual rights against state infringements existed. The
Thirteenth, Fourteenth, and Fifteenth Amendments
worked a sea change in this regard. See McDonald v. Chi-
cago, 561 U. S. 742, 754 (2010); Fitzpatrick v. Bitzer, 427
U. S. 445, 453–456 (1976); Ex parte Virginia, 100 U. S. 339,
344–345 (1880). Still, neither these Civil War Amendments
nor the landmark Civil Rights Act of 1866 successfully pre-
vented postbellum state actors from continuing to deprive
American citizens of federally protected rights. Mitchum v.
Foster, 407 U. S. 225, 240 (1972).
In early 1871, a Senate Select Committee produced and
distributed a Report that ran hundreds of pages and re-
counted pervasive state-sanctioned lawlessness and vio-
lence against the freedmen and their White Republican al-
lies. Monroe v. Pape, 365 U. S. 167, 174 (1961) (citing S.
Rep. No. 1, 42d Cong., 1st. Sess. (1871)).4 After reading the
——————
4 Encapsulating the Report, victim testimony, and press accounts for
his colleagues, one Congressman (as Monroe noted) lamented that “ ‘mur-
der is stalking abroad in disguise, . . . whippings and lynchings and ban-
ishment have been visited upon unoffending American citizens, [and] the
local administrations have been found inadequate or unwilling to apply
Cite as: 599 U. S. ____ (2023) 7
Opinion of the Court
Report, President Ulysses S. Grant implored Congress to
act.
It is against this backdrop that the 42d Congress enacted,
and President Grant signed, the Civil Rights Act of 1871.
The first section of that statute, as reenacted in 1874, cre-
ated the federal cause of action now codified as §1983.
Chapman v. Houston Welfare Rights Organization, 441
U. S. 600, 608, and n. 16 (1979) (citing Rev. Stat. §1979
(1874)). The “plain language[’s]” lack of “modifiers,” Thi-
boutot, 448 U. S., at 4, reflected the regrettable reality that
“state instrumentalities” could not, or would not, fully pro-
tect federal rights, Mitchum, 407 U. S., at 242.
We have adhered to this understanding of §1983’s opera-
tion. To guarantee the protection of federal rights, “the
§1983 remedy . . . is, in all events, supplementary to any
remedy any State might have.” Owens v. Okure, 488 U. S.
235, 248 (1989) (internal quotation marks omitted); Knick
v. Township of Scott, 588 U. S. ___, ___ (2019) (slip op., at
11). And we have consistently refused to read §1983’s
“plain language” to mean anything other than what it says.
Thiboutot, 448 U. S., at 4–6 (observing that our cases, run-
ning back to at least 1968, only make sense if “laws” indeed
means “laws”).
2
We are not persuaded by HHC’s argument (which
JUSTICE THOMAS supports, see post, at 1, 35 (dissenting
——————
the proper corrective.’ ” 365 U. S., at 175 (quoting Cong. Globe, 42d
Cong., 1st Sess., App. 374 (1871)). Another, summing up the same facts,
stated:
“ ‘Sheriffs, having eyes to see, see not; judges, having ears to hear, hear
not; witnesses conceal the truth or falsify it; grand and petit juries act as
if they might be accomplices. . . . [A]ll the apparatus and machinery of
civil government, all the processes of justice, skulk away as if govern-
ment and justice were crimes and feared detection. Among the most dan-
gerous things an injured party can do is to appeal to justice.’ ” Mitchum,
407 U. S., at 241 (quoting Cong. Globe, 42d Cong., 1st Sess., App. 78).
8 HEALTH AND HOSPITAL CORPORATION OF MARION
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Opinion of the Court
opinion)), that Talevski cannot invoke §1983 to vindicate
the rights the FNHRA provisions at issue here purport to
recognize because Congress seems to have enacted the
FNHRA pursuant to the spending power recognized in Ar-
ticle I, §8, of the Constitution.5
HHC’s argument generally proceeds as follows. Starting
with our precedent regarding Congress’s spending
power, HHC begins by emphasizing our observation that
federal legislation premised on that power is “much in the
nature of a contract,” because, “in return for federal funds,
the States agree to comply with federally imposed condi-
tions.” Pennhurst State School and Hospital v. Halderman,
451 U. S. 1, 17 (1981); see also Cummings v. Premier Rehab
Keller, 596 U. S. ___, ___ (2022) (slip op., at 4). HHC then
seizes on the “contract” analogy to create a syllogism. It
reasons that (1) any private party suing to enforce an obli-
gation between Federal and State Governments that a
Spending Clause statute creates is, essentially, a “third-
party beneficiary” (by which HHC means beneficiaries of
rights created in any such statute); and (2) under common-
law contract principles extant at the time that Congress en-
acted §1983, third-party beneficiaries were “generally”
barred from suing to enforce contract obligations; therefore,
(3) plaintiffs like Talevski, as a purported third-party ben-
eficiary of the FNHRA, may not use §1983 to do something
that third-party beneficiaries of contracts generally could
not do in the 1870s. Brief for Petitioners 13, 17–18 (citing
1870s treatises and state cases).
The upshot, for HHC, is that “Spending Clause statutes
do not give rise to privately enforceable rights under Sec-
tion 1983” because contracts were not “generally” enforcea-
ble by third-party beneficiaries at common law. Id., at 11,
——————
5 See Art. I, §8, cl. 1 (authorizing the Legislature to “lay and collect
Taxes . . . to pay the Debts and provide for the common Defence and gen-
eral Welfare of the United States”).
Cite as: 599 U. S. ____ (2023) 9
Opinion of the Court
13. On this basis alone, HHC thus, in effect, urges us to
reject decades of precedent, and to rewrite §1983’s plain text
to read “laws (unless those laws rest on the Spending
Power).”
Two well-established principles, applied here, suffice to
reject HHC’s invitation to reimagine Congress’s handiwork
(and our precedent interpreting it).
First, our prior §1983 cases reference “ ‘firmly rooted’ ”
common-law principles. Wyatt v. Cole, 504 U. S. 158, 164
(1992). We implement Congress’s choices rather than re-
make them. Azar v. Allina Health Services, 587 U. S. ___,
___–___ (2019) (slip op., at 14–15). Thus, we have reasoned
that Congress’s failure to displace firmly rooted common-
law principles generally indicates that it incorporated those
established principles into §1983. Wyatt, 504 U. S., at 163–
164.6 Here, HHC’s key common-law plank—that third-
party beneficiaries could not sue to enforce contractual ob-
ligations during the relevant time—is, at a minimum, con-
testable. See Brief for Contract Law Professors et al. as
Amici Curiae 4 (“[A] majority of American jurisdictions . . .
permit[ted] third-party beneficiaries to sue through at least
the early 1870s”); see also Hendrick v. Lindsay, 93 U. S.
143, 149 (1876) (concluding that “the right of a party to
——————
6 For example, we have recognized immunities in the §1983 context
when a “ ‘tradition of immunity was so firmly rooted in the common law
and was supported by such strong policy reasons that “Congress would
have specifically so provided had it wished to abolish” ’ ” that particular
immunity. Wyatt, 504 U. S., at 164 (quoting Owen v. Independence, 445
U. S. 622, 637 (1980)); see also Tenney v. Brandhove, 341 U. S. 367, 372–
376 (1951) (rooting immunity in a well-settled, pre-Revolutionary tradi-
tion that Congress could not be thought to have “covert[ly]” abrogated).
We relied on similar reasoning when consulting well-settled common-law
principles to determine the “contours of a [§1983] claim,” Nieves v. Bart-
lett, 587 U. S. ___, ___ (2019) (slip op., at 12), the accrual date for §1983
claims, McDonough v. Smith, 588 U. S. ___, ___ (2019) (slip op., at 5)
(citing, inter alia, Heck v. Humphrey, 512 U. S. 477, 483 (1994)), and
“prerequisites for th[e] recovery” of monetary damages, id., at 483 (citing
Carey v. Piphus, 435 U. S. 247, 257–258 (1978)).
10 HEALTH AND HOSPITAL CORPORATION OF MARION
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Opinion of the Court
maintain assumpsit on a promise not under seal, made to
another for his benefit, . . . is now the prevailing rule in this
country”).7 “[S]omething more than ‘ambiguous historical
evidence’ is required before we will ‘flatly overrule a num-
ber of major decisions of this Court,’ ” Gamble v. United
States, 587 U. S. ___, ___ (2019) (slip op., at 11), as HHC
essentially asks us to do here.
Second, because “[t]here is no doubt that the cause of ac-
tion created by §1983 is, and was always regarded as, a tort
claim,” Monterey v. Del Monte Dunes at Monterey, Ltd., 526
U. S. 687, 727 (1999) (Scalia, J., concurring in part and con-
curring in judgment), HHC’s particular focus on 1870s law
governing third-party-beneficiary suits in contract is, at the
very least, perplexing. If there is a reason that the princi-
ples governing those suits should be read to displace the
plain scope of §1983’s “ ‘species of tort liability,’ ” Heck v.
Humphrey, 512 U. S. 477, 483 (1994), HHC has utterly
failed to identify it.
We have no doubt that HHC wishes §1983 said something
else. But that is “an appeal better directed to Congress.”
Nieves v. Bartlett, 587 U. S. ___, ___ (2019) (GORSUCH, J.,
concurring in part and dissenting in part) (slip op., at 2).
Hewing to §1983’s text and history (not to mention our prec-
edent and constitutional role), we reject HHC’s request, and
reaffirm that “laws” in §1983 means what it says. Thi-
boutot, 448 U. S., at 4.8
——————
7 Black’s Law Dictionary 154 (11th ed. 2019) (defining assumpsit, as
relevant, as a “common-law action for . . . breach of a contract”).
8 HHC’s reply brief retreats from its initial ask, by appearing to con-
cede that Spending Clause legislation can secure individual rights under
§1983, but (it says) only if the statutory language “giv[es] funding recip-
ients clear notice.” Reply Brief 1. This newly minted argument contra-
dicts the opening brief ’s categorical claims about the scope of §1983. In
any event, the well-established requirement that Congress must have
“unambiguously conferred” a §1983-enforceable right in a Spending
Clause statute ensures the clear notice that HHC’s reply brief requests.
Gonzaga Univ. v. Doe, 536 U. S. 273, 279–280, 283 (2002); Part III, infra.
Cite as: 599 U. S. ____ (2023) 11
Opinion of the Court
III
The FNHRA can create §1983-enforceable rights. But do
the two FNHRA provisions at issue in this case actually do
so? In that respect, our precedent sets a demanding bar:
Statutory provisions must unambiguously confer individual
federal rights. Gonzaga, 536 U. S., at 280. For the reasons
explained below, we conclude that the bar has been cleared
with respect to the presently contested provisions. And
while the FNHRA itself might nevertheless evince Con-
gress’s intent to preclude the use of §1983 to enforce these
particular rights, id., at 284, n. 4, we hold further that it
does not.
A
The FNHRA provisions at issue in this case, like the rest
of the Act, stem from a longstanding national commitment
to provide safe and dignified care for the elderly. Since as
early as the Social Security Act of 1935, federal law has
aimed in myriad ways to promote nursing homes that pro-
vide quality services. Yet, concerns about the poor condi-
tion of such facilities persisted even after Congress enacted
the 1965 Medicare and Medicaid Acts,9 partly due to wide-
spread noncompliance with existing federal and state laws.
See Institute of Medicine, Improving the Quality of Care in
Nursing Homes 2–3, 11, 241–246 (1986); H. R. Rep. No.
100–391, pt. 1, pp. 448–452 (1987). Thus, in 1987, Congress
passed, and President Ronald Reagan signed, the FNHRA,
effecting a “seismic shift” in nursing-home quality stand-
ards. B. Furrow, T. Greaney, S. Johnson, T. Jost, & R.
Schwartz, Health Law 51 (3d ed. 2015) (Health Law).10 The
——————
9 Medicare “provides Government-funded health insurance to” millions
of “elderly or disabled Americans,” while Medicaid “provides health in-
surance to all low-income individuals, regardless of age or disability.”
Becerra v. Empire Health Foundation, for Valley Hospital Medical Cen-
ter, 597 U. S. ___, ___–___ (2022) (slip op., at 2–3).
10 The Omnibus Budget Reconciliation Act of 1987 added the FNHRA
12 HEALTH AND HOSPITAL CORPORATION OF MARION
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Opinion of the Court
FNHRA is largely composed of a litany of statutory require-
ments that Congress laid out for Medicaid-participant
States and “nursing facilities.” §1396a(a)(28).11 Those in-
clude “[r]equirements relating to residents’ rights,”
§1396r(c) (boldface deleted), two of which Talevski’s com-
plaint invoked.
The first requires nursing facilities to “protect and pro-
mote” residents’ “right to be free from . . . any physical or
chemical restraints imposed for purposes of discipline or
convenience and not required to treat the resident’s medical
symptoms.” §1396r(c)(1)(A)(ii) (referred to herein as “the
unnecessary-restraint provision”). The second appears in a
subparagraph concerning “[t]ransfer and discharge rights,”
§1396r(c)(2)(A) (boldface deleted), and tells nursing facili-
ties that they “must not transfer or discharge [a] resident”
unless certain enumerated preconditions, including ad-
vance notice of such a transfer or discharge, are met. E.g.,
§§1396r(c)(2)(A)–(B) (referred to herein as “the predis-
charge-notice provision”).
As for enforcement, like other aspects of Medicaid, the
FNHRA anticipates “cooperative federalism”—i.e., federal
and state actors working together—to carry out the stat-
ute’s aims. Wisconsin Dept. of Health and Family Servs. v.
Blumer, 534 U. S. 473, 495 (2002). Thus, qualifying State
Medicaid plans, which are approved by the Secretary of the
U. S. Department of Health and Human Services (HHS Sec-
retary), §1396a(b), must include provisions that relate to
——————
to Title XIX of the Social Security Act, i.e., Medicaid. See 101 Stat. 1330–
182. The FNHRA added a materially identical section to the Medicare-
focused portion of the Social Security Act, 101 Stat. 1330–160, 42 U. S. C.
§1395i–3 et seq. Because Talevski’s complaint relies only on the Medi-
caid-related FNHRA provisions, App. to Pet. for Cert. 76a, we hereafter
follow the parties and the Court of Appeals in referring only to the perti-
nent Medicaid provisions, as codified in the U. S. Code (§§1396a(a)(28),
1396r).
11 “Nursing facility” is the FNHRA’s term for a nursing home.
§1396r(a).
Cite as: 599 U. S. ____ (2023) 13
Opinion of the Court
nursing facilities, and must require “any nursing facility re-
ceiving payments under” the plan to satisfy certain FNHRA
mandates. §1396a(a)(28). The HHS Secretary must also
“assure that” approved state plans—and “the enforcement
of [plan] requirements”—are, inter alia, “adequate” to “pro-
tect the health, safety, welfare, and rights of [nursing-
home] residents.” §1396r(f )(1).
The FNHRA also establishes a detailed administrative
scheme for government inspections of nursing facilities.
§1396r(g). “Surveys” (in the statute’s parlance) must be
conducted to detect nursing homes that are falling short of
the FNHRA’s minimum standards, and state and federal
officials must periodically file certifications, based on these
surveys, regarding nursing-home compliance, see
§1396r(g)(1)(A). In addition, the statute authorizes govern-
ment actors to sanction and correct noncompliant facilities,
or, if appropriate, exclude them from the Medicaid program
entirely. §1396r(h); see also Health Law 56–63.
B
1
Although federal statutes have the potential to create
§1983-enforceable rights, they do not do so as a matter of
course. For Spending Clause legislation in particular, we
have recognized that “ ‘the typical remedy for state noncom-
pliance with federally imposed conditions is not a private
cause of action for noncompliance but rather action by the
Federal Government to terminate funds to the State.’ ”
Gonzaga, 536 U. S., at 280 (quoting Pennhurst, 451 U. S.,
at 28). The parties here thus dispute whether this is the
atypical case; that is, whether the unnecessary-restraint
and predischarge-notice provisions of the FNHRA “unam-
biguously confe[r]” individual rights, making those rights
“presumptively enforceable” under §1983. 536 U. S., at283–284.
14 HEALTH AND HOSPITAL CORPORATION OF MARION
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Opinion of the Court
Gonzaga sets forth our established method for ascertain-
ing unambiguous conferral. Courts must employ tradi-
tional tools of statutory construction to assess whether Con-
gress has “unambiguously conferred” “individual rights
upon a class of beneficiaries” to which the plaintiff belongs.
Id., at 283, 285–286; see also Rancho Palos Verdes v.
Abrams, 544 U. S. 113, 120 (2005). Notably, it must be de-
termined that “Congress intended to create a federal right”
for the identified class, not merely that the plaintiffs fall
“within the general zone of interest that the statute is in-
tended to protect.” Gonzaga, 536 U. S., at 283 (emphasis
deleted). This paradigm respects Congress’s primacy in
this arena and thus vindicates the separation of powers.
Id., at 286.
We have held that the Gonzaga test is satisfied where the
provision in question is “ ‘phrased in terms of the persons
benefited’ ” and contains “rights-creating,” individual-cen-
tric language with an “ ‘unmistakable focus on the benefited
class.’ ” Id., at 284, 287 (emphasis deleted). Conversely, we
have rejected §1983 enforceability where the statutory pro-
vision “contain[ed] no rights-creating language”; had “an
aggregate, not individual, focus”; and “serve[d] primarily to
direct the [Federal Government’s] distribution of public
funds.” Id., at 290.
If a statutory provision surmounts this significant hur-
dle, it “secure[s]” §1983-enforceable rights, consistent with
§1983’s text. And because “§1983 generally supplies a rem-
edy for the vindication of rights secured by federal stat-
utes,” rights so secured are deemed “presumptively enforce-
able” under §1983. Gonzaga, 536 U. S., at 284.
2
The unnecessary-restraint and predischarge-notice pro-
visions meet this test. To start, we note that both reside in
42 U. S. C. §1396r(c), which expressly concerns “[r]equire-
ments relating to residents’ rights.” Ibid. (emphasis added;
Cite as: 599 U. S. ____ (2023) 15
Opinion of the Court
boldface deleted); see also West Virginia v. EPA, 597 U. S.
___, ___ (2022) (slip op., at 16) (statutory provisions “ ‘must
be read in their context and with a view to their place in the
overall statutory scheme’ ”). This framing is indicative of
an individual “rights-creating” focus. Gonzaga, 536 U. S.,
at 284. Examined further, the text of the unnecessary-
restraint and predischarge-notice provisions unambigu-
ously confers rights upon the residents of nursing-home fa-
cilities.
The unnecessary-restraint provision requires nursing
homes to “protect and promote . . . [t]he right to be free from
. . . any physical or chemical restraints imposed for pur-
poses of discipline or convenience and not required to treat
the resident’s medical symptoms.” §1396r(c)(1)(A)(ii) (em-
phasis added). The provision’s enumerated exceptions fur-
ther sustain the focus on individual residents. For example,
nursing homes may use restraints “to ensure the physical
safety of the resident or other residents,” but “only upon the
written order of a physician that specifies the duration and
circumstances under which the restraints are to be used”
(absent emergency circumstances specified by the HHS Sec-
retary). §§1396r(c)(1)(A)(ii)(I)–(II) (emphasis added).
The predischarge-notice provision is more of the same.
Nestled in a paragraph concerning “transfer and discharge
rights,” §1396r(c)(2) (emphasis added; boldface deleted),
that provision tells nursing facilities that they “must not
transfer or discharge [a] resident” unless certain precondi-
tions are met, including advance notice of the transfer or
discharge to the resident and his or her family.
§§1396r(c)(2)(A)–(B) (emphasis added). And, again, the
statute’s caveats remain focused on individual residents: A
nursing home may transfer or discharge such an individual
if, among other things, the transfer is “necessary to meet
the resident’s welfare”; or if the resident’s health has im-
proved so much that the facility is no longer necessary; or if
16 HEALTH AND HOSPITAL CORPORATION OF MARION
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Opinion of the Court
the safety or health of other individuals would be endan-
gered. §1396r(c)(2)(A) (emphasis added). The exceptions to
the advance-notice requirement, too, turn (inter alia) on the
“resident’s health,” the “resident’s urgent medical needs,” or
the existence of threats to the safety or health of other indi-
viduals in the nursing home. §§1396r(c)(2)(B)(ii)(I)–(III)
(emphasis added).
To be sure, these two provisions also establish who it is
that must respect and honor these statutory rights; namely,
the Medicaid-participant nursing homes in which these res-
idents reside. See, e.g., §§1396a(a)(28), 1396r(c)(1)(A),
1396r(c)(2)(A); see also §§1396r(c)(1)(B)(i)–(ii) (requiring
nursing homes to inform nursing-home residents of their
rights, orally and in writing, upon admission and upon re-
quest). But that is not a material diversion from the neces-
sary focus on the nursing-home residents, contrary to
HHC’s representations. Indeed, it would be strange to hold
that a statutory provision fails to secure rights simply be-
cause it considers, alongside the rights bearers, the actors
that might threaten those rights (and we have never so
held).12
The unnecessary-restraint and predischarge-notice pro-
visions thus stand in stark contrast to the statutory provi-
sions that failed Gonzaga’s test in Gonzaga itself. Those
provisions lacked “rights-creating language,” primarily di-
rected the Federal Government’s “distribution of public
funds,” and had “an aggregate, not individual, focus.” 536
U. S., at 290. The opposite is true here. The unnecessary-
restraint and predischarge-notice provisions use clear
“rights-creating language,” speak “ ‘in terms of the persons
benefited,’ ” and have an “ ‘unmistakable focus on the bene-
fited class.’ ” Id., at 284, 287, 290 (emphasis deleted). Thus,
they satisfy Gonzaga’s stringent standard, and the rights
——————
12 The Fourteenth Amendment hardly fails to secure §1983-enforceable
rights because it directs state actors not to deny equal protection.
Cite as: 599 U. S. ____ (2023) 17
Opinion of the Court
they recognize are presumptively enforceable under §1983.
C
Even if a statutory provision unambiguously secures
rights, a defendant “may defeat t[he] presumption by
demonstrating that Congress did not intend” that §1983 be
available to enforce those rights. Rancho Palos Verdes, 544
U. S., at 120.13 For evidence of such intent, we have looked
to “the statute creating the right.” Ibid. A statute could, of
course, expressly forbid §1983’s use. Fitzgerald, 555 U. S.,
at 252; Rancho Palos Verdes, 544 U. S., at 120. Absent such
a sign, a defendant must show that Congress issued the
same command implicitly, by creating “a ‘comprehensive
enforcement scheme that is incompatible with individual
enforcement under §1983.’ ” Id., at 120. Only the latter
path is at issue here.
1
Our precedent outlines what HHC must show to traverse
the implicit-preclusion path. “ ‘The crucial consideration’ ”
is whether “Congress intended a statute’s remedial scheme
to ‘be the exclusive avenue through which a plaintiff may
assert [his] claims.’ ” Fitzgerald, 555 U. S., at 252 (quoting
Smith v. Robinson, 468 U. S. 992, 1009, 1012 (1984) (em-
phasis added)); Fitzgerald, 555 U. S., at 252 (framing “ ‘[t]he
——————
13 The “ ‘rebuttable presumption’ ” that our cases describe, Rancho Pa-
los Verdes, 544 U. S., at 120, is not an artificially onerous court-made
hurdle. It merely reflects what §1983’s plain text commands: The §1983
remedy is available to vindicate federal individual rights “secured by . . .
la[w].” In other words, the presumption recognizes that, even where
Congress has unambiguously secured certain federal individual rights
by law, it may have simultaneously given good reason (detectable with
ordinary interpretive tools) to conclude that the §1983 remedy is not
available for those rights, even though it “generally” is. Gonzaga, 536
U. S., at 284, and n. 4. And it also recognizes that it is the defendant’s
burden to show that a right otherwise secured by law is not §1983 en-
forceable. Rancho Palos Verdes, 544 U. S., at 120; Gonzaga, 536 U. S.,
at 284, and n. 4.
18 HEALTH AND HOSPITAL CORPORATION OF MARION
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Opinion of the Court
critical question’ ” as “ ‘whether Congress meant [the stat-
ute’s remedial scheme] to coexist with . . . a §1983 action’ ”
(quoting Rancho Palos Verdes, 544 U. S., at 120–121)).
Our precedents make clear that the sine qua non of a find-
ing that Congress implicitly intended to preclude a private
right of action under §1983 is incompatibility between en-
forcement under §1983 and the enforcement scheme that
Congress has enacted. 555 U. S., at 252–254. We have used
many terms and concepts to describe the necessary discord-
ance between §1983 and a rights-conferring statute’s reme-
dial scheme: “ ‘incompatible,’ ” “ ‘inconsistent,’ ” and
“thwar[t]” are examples. Id., at 252–255. In all events, the
question is whether the design of the enforcement scheme
in the rights-conferring statute is inconsistent with enforce-
ment under §1983, such that a court must infer that “Con-
gress did not intend” to make available the “[§1983] remedy
for [these] newly created right[s].” Rancho Palos Verdes,
544 U. S., at 120; see also Fitzgerald, 555 U. S., at 252.
Put another way, the inquiry boils down to what Con-
gress intended, as divined from text and context. The ap-
plication of the traditional tools of statutory construction to
a statute’s remedial scheme may reveal no incompatibility
between the enforcement scheme that Congress crafted in
the rights-conferring statute and enforcement under §1983,
or it may uncover sufficient incompatibility to make mani-
fest Congress’s intent to preclude §1983 actions. See, e.g.,
id., at 253 (explaining a past implicit-preclusion case on the
ground that permitting §1983 claims there would have
“thwarted Congress’ intent”); Rancho Palos Verdes, 544
U. S., at 127 (§1983’s operation would have “distort[ed]” the
pertinent other statute’s remedial scheme).
2
We discern no incompatibility between the FNHRA’s re-
medial scheme and §1983 enforcement of the rights that the
unnecessary-restraint and predischarge-notice provisions
Cite as: 599 U. S. ____ (2023) 19
Opinion of the Court
unambiguously secure.
As explained in Part III–A, supra, the FNHRA details ad-
ministrative processes concerning inspection of covered
nursing facilities and accountability for noncompliant facil-
ities. But the statute lacks any indicia of congressional in-
tent to preclude §1983 enforcement, such as an express pri-
vate judicial right of action or any other provision that
might signify that intent. See, e.g., id., at 121 (“[T]he exist-
ence of a more restrictive private remedy [in the statute it-
self] for statutory violations has been the dividing line be-
tween those cases in which we have held that an action
would lie under §1983 and those in which we have held that
it would not”). Nor has HHC otherwise demonstrated that
enforcement via §1983 would thwart the operation of the
administrative remedial scheme in any respect.
HHC’s argument that we need look no further than the
detail of the FNHRA’s enforcement mechanisms to find con-
clusive evidence of implicit preclusion is unpersuasive. Im-
plicit preclusion is shown by a “ ‘comprehensive enforce-
ment scheme that is incompatible with individual
enforcement under §1983.’ ” Fitzgerald, 555 U. S., at 252(emphasis added). HHC’s single-minded focus on compre-
hensiveness mistakes the shadow for the substance, and it
disregards the import of these FNHRA provisions’ unam-
biguous conferral of rights. The attendant presumption is
that §1983 can play its textually prescribed role as a vehicle
for enforcing those rights, even alongside a detailed enforce-
ment regime that also protects those interests, so long as
§1983 enforcement is not “ ‘incompatible’ ” with Congress’s
handiwork. Rancho Palos Verdes, 544 U. S., at 120, 122;
Blessing v. Freestone, 520 U. S. 329, 347–348 (1997) (col-
lecting cases).
To be clear, a defendant can discharge its burden of show-
ing that the presumption is rebutted by pointing to a com-
prehensive scheme. Middlesex County Sewerage Authority
v. National Sea Clammers Assn., 453 U. S. 1, 20 (1981)
20 HEALTH AND HOSPITAL CORPORATION OF MARION
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Opinion of the Court
(statutory “remedial devices” that are “sufficiently compre-
hensive . . . may suffice” to show implicit preclusion). But
when a particular comprehensive remedial scheme dis-
charges the defendant’s burden, it does so because the ap-
plication of ordinary interpretive tools reveals incompatibil-
ity, i.e., it demonstrates that “Congress intended [that]
statute’s remedial scheme to be the ‘exclusive avenue
through which a plaintiff may assert [his] claims.’ ” Fitzger-
ald, 555 U. S., at 252.
Nothing in the FNHRA indicates the incompatibility
evinced in our three prior cases finding implicit preclusion.
Rancho Palos Verdes, 544 U. S., at 120–123, 127; Smith,
468 U. S., at 1008–1013; Sea Clammers, 453 U. S., at 6–7,
19–21. Rancho Palos Verdes, Smith, and Sea Clammers
concerned statutes with self-contained enforcement
schemes that included statute-specific rights of action.
Rancho Palos Verdes, 544 U. S., at 120–123; Smith, 468
U. S., at 1008–1012; Sea Clammers, 453 U. S., at 6–7, 17,
and n. 27, 19–21. Each such statute required plaintiffs to
“comply with particular procedures and/or to exhaust par-
ticular administrative remedies” under the statute’s en-
forcement scheme before suing under its dedicated right of
action. Fitzgerald, 555 U. S., at 254. And each statute-spe-
cific right of action offered fewer benefits than those avail-
able under §1983. Ibid., and n. 1. Thus, in all three cases,
§1983’s operation would have thwarted Congress’s scheme
coming and going: It would have “circumvented” the stat-
utes’ presuit procedures, and would have also “given plain-
tiffs access to tangible benefits” as remedies that were “un-
available under the statutes.” Id., at 254. Those
“ ‘comprehensive enforcement scheme[s]’ ” were “ ‘incompat-
ible with individual enforcement under §1983.’ ” Id., at 252
(quoting Rancho Palos Verdes, 544 U. S., at 120).
HHC has identified no equivalent sign in the FNHRA;
nor has JUSTICE ALITO, see post, at 1, 3–5 (dissenting opin-
ion). In focusing on what the FNHRA contains, they ignore
Cite as: 599 U. S. ____ (2023) 21
Opinion of the Court
what it lacks—a private judicial right of action, a private
federal administrative remedy, or any “ ‘carefu[l]’ ” congres-
sional “ ‘tailor[ing],’ ” Fitzgerald, 555 U. S., at 255, that
§1983 actions would “distort,” Rancho Palos Verdes, 544
U. S., at 127. HHC seems to think it enough to show that
Congress was not slipshod in crafting the remedial scheme.
But in a world where the FNHRA’s remedial scheme could
“complement,” not “supplant, §1983,” id., at 122, HHC must
demonstrate more than that.
One last rebuttal argument warrants addressing. The
United States says that, because private entities owned
most nursing homes when the FNHRA was enacted in 1987
(as they do now), the FNHRA is a rare bird for implicit-
preclusion purposes. In the United States’ view, because
Congress knew that most nursing homes could not be sub-
ject to suit under §1983 anyway, see, e.g., Polk County v.
Dodson, 454 U. S. 312, 317–319 (1981), the FNHRA’s reme-
dial scheme “necessarily reflects Congress’s judgment that
these administrative enforcement mechanisms appropri-
ately protect the rights the statute confers,” Brief for United
States as Amicus Curiae 31.
This argument is unavailing. The implicit-preclusion in-
quiry looks to “the statute creating the right” and any “ ‘com-
prehensive enforcement scheme’ ” Congress has created in
the statute “ ‘that is incompatible with individual enforce-
ment under §1983.’ ” Rancho Palos Verdes, 544 U. S., at 120(emphasis added). It does not invite speculation about os-
tensible marketplace realities that appear nowhere in the
statute’s text or relevant context. The relevant FNHRA
provisions speak in neutral terms that do not distinguish
between private and public nursing homes. And, regard-
less, the question remains whether something in the
FNHRA has foreclosed §1983’s “genera[l]” availability as “a
remedy for the vindication of rights secured by federal stat-
utes.” Gonzaga, 536 U. S., at 284. We see no such sign,
22 HEALTH AND HOSPITAL CORPORATION OF MARION
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Opinion of the Court
much less a license for us to construct and impute congres-
sional intent that the FNHRA does not embody.
The difficulty for HHC and the United States is that im-
plicit preclusion, in this context, requires something in the
statute that shows that permitting §1983 to operate would
“thwar[t] Congress’ intent” in crafting the FNHRA. Fitz-
gerald, 555 U. S., at 253. We see nothing in the FNHRA
that even hints at Congress’s intent in this regard; if any-
thing, the language of the Act confirms otherwise, for it
plainly states that “[t]he remedies provided under” its en-
forcement-process subsection are “in addition to those oth-
erwise available under State or Federal law and shall not
be construed as limiting such other remedies.” §1396r(h)(8)
(emphasis added).14 We will not rewrite §1396r(h)(8) in lieu
of rewriting §1983.15
* * *
At oral argument, HHC’s counsel remarked that the
“right question” is “what rights are secured by law within
——————
14 We found similar (but not identical) language to be insufficient to
preserve the presumption in Middlesex County Sewerage Authority v.
National Sea Clammers Assn., 453 U. S. 1 (1981), and Rancho Palos
Verdes v. Abrams, 544 U. S. 113 (2005). See id., at 125–127. But those
clauses did not purport to preserve “other remedies,” and were embedded
in statutes that (unlike the FNHRA) contained private judicial rights of
action. See ibid.; Sea Clammers, 453 U. S., at 6–7, 20, and n. 31. The
FNHRA’s explicitly expressed objective of preserving other remedies bol-
sters our reluctance to infer implicit displacement of the §1983 remedy.
We think JUSTICE ALITO’s response in this regard overreads Rancho Pa-
los Verdes. See post, at 6. That case merely provided an unremarkable
description of Sea Clammers’ “refus[al] to read” the saving clauses there
as preserving §1983 actions, in light of the different (and significant) tex-
tual and contextual evidence of preclusion that the statutes at issue pro-
vided. Rancho Palos Verdes, 544 U. S., at 127.
15 The United States’ suggestion that §1396r(h)(8) just ensures that
remedies available under non-FNHRA, non-§1983 statutes remain avail-
able is not persuasive. Brief for United States as Amicus Curiae 34.
Nothing in the Act supports interpreting §1396r(h)(8)’s language in that
manner, especially given §1983’s unqualified command.
Cite as: 599 U. S. ____ (2023) 23
Opinion of the Court
the meaning of §1983.” Tr. of Oral Arg. 39. That is an ac-
curate statement of the key issue in this case. Section 1983
itself provides the answer. By its terms, §1983 is available
to enforce every right that Congress validly and unambigu-
ously creates; we will not impose a categorical font-of-power
condition that the Reconstruction Congress did not. And,
here, the test that our precedents establish leads inexorably
to the conclusion that the FNHRA secures the particular
rights that Talevski invokes, without otherwise signaling
that enforcement of those rights via §1983 is precluded as
incompatible with the FNHRA’s remedial scheme.
Accordingly, we affirm the judgment of the Court of Ap-
peals.
It is so ordered.
Cite as: 599 U. S. ____ (2023) 1
GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–806
_________________
HEALTH AND HOSPITAL CORPORATION OF MARION
COUNTY, ET AL., PETITIONERS v. IVANKA TALEVSKI,
AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF GORGI TALEVSKI, DECEASED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 8, 2023]
JUSTICE GORSUCH, concurring.
Section 1983 permits individuals to sue to vindicate their
“rights . . . secured by . . . la[w].” Rev. Stat. §1979, 42
U. S. C. §1983. I agree with the Court’s disposition of the
two questions we took this case to decide and in arriving
there largely track JUSTICE BARRETT’s reasoning. First, the
Federal Nursing Home Reform Act qualifies as a “law” for
purposes of §1983. Post, at 1 (BARRETT, J., concurring).
Second, the text of the Act’s operative provisions refers to
individual “rights.” Post, at 2–4 (same). But, to my mind,
there are other issues lurking here that petitioners failed to
develop fully—whether legal rights provided for in spend-
ing power legislation like the Act are “secured” as against
States in particular and whether they may be so secured
consistent with the Constitution’s anti-commandeering
principle. See, e.g., National Federation of Independent
Business v. Sebelius, 567 U. S. 519, 575–578 (2012); Mur-
phy v. National Collegiate Athletic Assn., 584 U. S. ___, ___–
___ (2018) (slip op., at 14–18). As I see it, those are ques-
tions for another day.
Cite as: 599 U. S. ____ (2023) 1
BARRETT, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–806
_________________
HEALTH AND HOSPITAL CORPORATION OF MARION
COUNTY, ET AL., PETITIONERS v. IVANKA TALEVSKI,
AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF GORGI TALEVSKI, DECEASED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 8, 2023]
JUSTICE BARRETT, with whom THE CHIEF JUSTICE joins,
concurring.
Today’s opinion makes three important points. First,
Maine v. Thiboutot remains good law. 448 U. S. 1 (1980).
Second, Gonzaga University v. Doe sets the standard for de-
termining when a Spending Clause statute confers individ-
ual rights, and the Federal Nursing Home Reform Act
(FNHRA) satisfies it. 536 U. S. 273 (2002). Third, courts
must carefully consider whether individual rights estab-
lished by a Spending Clause statute are enforceable
through 42 U. S. C. §1983—in the FNHRA’s case, they are.
As to the first point: Section 1983 provides a cause of ac-
tion against “[e]very person” who, under color of state law,
violates “any rights, privileges, or immunities secured by
the Constitution and laws.” In Thiboutot, we held that the
plain language of the statute was not limited to “some sub-
set of laws.” 448 U. S., at 4. Rather, the term “laws” en-
compasses all federal laws, including those passed pursu-
ant to Congress’s Spending Clause authority. Ibid. Like
the Court, I would not abandon that holding based on peti-
tioners’ novel contract-law theory.
Second, our decision in Gonzaga establishes the standard
for analyzing whether Spending Clause statutes give rise to
2 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
BARRETT, J., concurring
individual rights. Under Gonzaga, courts must ask
whether “text and structure” indicate that the statute “un-
ambiguously” confers federal rights. 536 U. S., at 283, 286.
Relevant considerations include whether the statute is
“ ‘phrased in terms of the persons benefited,’ ” whether it
uses “explicit rights-creating terms,” and whether it has an
“individual,” rather than an “aggregate,” focus. Id., at 284,
290.
This bar is high, and although the FNHRA clears it,
many federal statutes will not. As the Court explains,
§1983 actions are the exception—not the rule—for viola-
tions of Spending Clause statutes. Ante, at 13. This is be-
cause “the typical remedy for state noncompliance with fed-
erally imposed conditions is not a private cause of action for
noncompliance but rather action by the Federal Govern-
ment to terminate funds to the State.” Pennhurst State
School and Hospital v. Halderman, 451 U. S. 1, 28 (1981).
Indeed, since Pennhurst, we have interpreted only two
Spending Clause statutes to be enforceable through §1983.
See Wright v. Roanoke Redevelopment and Housing Author-
ity, 479 U. S. 418, 432 (1987); Wilder v. Virginia Hospital
Assn., 496 U. S. 498, 522–523 (1990).
The third point is that even when a statute unambigu-
ously confers rights, Congress can “supplant any remedy
that otherwise would be available under §1983.” Middlesex
County Sewerage Authority v. National Sea Clammers
Assn., 453 U. S. 1, 21 (1981). At this step of the analysis,
courts should apply ordinary interpretive tools to determine
whether the statute allows access to §1983. Ante, at 18; see
Sea Clammers, 453 U. S., at 13, 20–21 (“We look first, of
course, to the statutory language, particularly to the provi-
sions made therein for enforcement and relief ”). In some
cases, the text may expressly forbid §1983 actions. In oth-
ers, context may point to the same result. It is especially
telling, for example, if the statute “ ‘creat[es] a comprehen-
Cite as: 599 U. S. ____ (2023) 3
BARRETT, J., concurring
sive enforcement scheme that is incompatible with individ-
ual enforcement under §1983.’ ” Gonzaga, 536 U. S., at284–285, n. 4.
As the Court notes, the presence of an “express private
judicial right of action” typically demonstrates that a §1983
suit is not also available. Ante, at 19; see Rancho Palos
Verdes v. Abrams, 544 U. S. 113, 121 (2005) (express cause
of action “is ordinarily an indication that Congress did not
intend to leave open a more expansive remedy under
§1983”). When the statutory cause of action restricts avail-
able remedies or imposes procedural hurdles to obtaining
relief, the inference is even stronger. See Fitzgerald v.
Barnstable School Comm., 555 U. S. 246, 254 (2009) (con-
sidering whether a §1983 suit “would have circumvented
these procedures and given plaintiffs access to tangible ben-
efits—such as damages, attorney’s fees, and costs—that
were unavailable under the statut[e]”); Rancho Palos
Verdes, 544 U. S., at 122–123 (similar).
But an actual clash—one private judicial remedy against
another, more expansive remedy—is not required to find
that a statute forecloses recourse to §1983. Our cases have
looked to a wide range of contextual clues, like “enforce-
ment provisions” that “confe[r] authority to sue . . . on gov-
ernment officials,” Sea Clammers, 453 U. S., at 13, 20, and
any “administrative remedies” that the statute offers,
Smith v. Robinson, 468 U. S. 992, 1012 (1984). We have
noted the relevance of a centralized review mechanism that
would be undermined by piecemeal litigation. Gonzaga,
536 U. S., at 289–290 (statute directed the Secretary of Ed-
ucation to establish a review board to investigate and adju-
dicate alleged violations). And we have regularly taken ac-
count of the overall comprehensiveness of the statute’s
enforcement scheme. The more comprehensive the scheme,
the less likely that it leaves the door open for §1983 suits.
Sea Clammers, 453 U. S., at 20 (“When the remedial devices
provided in a particular Act are sufficiently comprehensive,
4 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
BARRETT, J., concurring
they may suffice to demonstrate congressional intent to pre-
clude the remedy of suits under §1983”); Smith, 468 U. S.,
at 1011–1012 (§1983 suits unavailable “[i]n light of the com-
prehensive nature of the procedures and guarantees set
out” in the statute). None of these features is necessarily
determinative, but each is part of the larger picture that
courts must assess.
Courts must tread carefully before concluding that
Spending Clause statutes may be enforced through §1983.
In this case, however, the Seventh Circuit correctly allowed
Talevski’s §1983 suit to proceed. I therefore join the Court’s
opinion in full.
Cite as: 599 U. S. ____ (2023) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–806
_________________
HEALTH AND HOSPITAL CORPORATION OF MARION
COUNTY, ET AL., PETITIONERS v. IVANKA TALEVSKI,
AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF GORGI TALEVSKI, DECEASED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 8, 2023]
JUSTICE THOMAS, dissenting.
I agree with JUSTICE ALITO that the Federal Nursing
Home Reform Act (FNHRA) cannot be enforced through
Rev. Stat. §1979, 42 U. S. C. §1983, under Gonzaga Univ. v.
Doe, 536 U. S. 273 (2002). I write separately to highlight
another and more fundamental reason why FNHRA cannot
be enforced under §1983. Section 1983 provides a cause of
action to redress only “the deprivation of any rights, privi-
leges, or immunities secured by the Constitution and laws.”
But legislation enacted pursuant to Congress’ spending
power, like FNHRA, does not “secure” rights by “law.”
For nearly all of our Nation’s history, it was understood
that there is a fundamental difference between the exercise
of Congress’ sovereign legislative powers, on the one hand,
and the exercise of its power to spend money and to attach
conditions to the receipt of that money, on the other. Only
the former sort of legislation, which imposes obligations on
regulated parties with the force of law, directly secures by
law the rights corresponding to those obligations. By con-
trast, an exercise of Congress’ spending power, whether it
comes from the so-called Spending Clause or elsewhere in
the Constitution, is no more than a disposition of funds. As
2 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
THOMAS, J., dissenting
such, a conditional exercise of the spending power is noth-
ing more than a contractual offer; any “rights” that may
flow from that offer are “secured” only by the offeree’s ac-
ceptance and implementation, not federal law itself.
Since Maine v. Thiboutot, 448 U. S. 1 (1980), however,
this Court has ignored that fundamental distinction, per-
mitting third parties who benefit from spending conditions
to enforce them in §1983 suits against state actors. In doing
so, it has created a constitutional quandary: If spending
conditions that benefit third parties are laws and secure
rights in the same manner as ordinary lawmaking under
Congress’ sovereign legislative powers, then such condi-
tions would contradict the bedrock constitutional prohibi-
tion against federal commandeering of the States. We es-
cape this quandary only by recognizing spending
conditions, not as rights-securing laws, but as the terms of
possible contracts that secure rights only by virtue of an of-
feree’s acceptance—the very conclusion compelled by the
traditional understanding of the spending power. The
choice between these alternatives is stark and unavoidable:
Either spending conditions in statutes like FNHRA are not
laws that secure rights cognizable under §1983, or they are
unconstitutional direct regulations of States. The Court
must, at some point, revisit its understanding of the spend-
ing power and its relation to §1983.
I
This case arises from a §1983 suit to enforce FNHRA’s
spending conditions against a county-owned nursing home
that receives federal funding. Enacted under Congress’
spending power, FNHRA conditions the receipt of federal
Medicaid funding by States and nursing facilities on com-
pliance with a broad range of requirements.
These conditions largely consist of requirements that
funding recipients protect certain “rights” of nursing-home
residents. In a subsection entitled “[r]equirements relating
Cite as: 599 U. S. ____ (2023) 3
THOMAS, J., dissenting
to residents’ rights,” the Act requires recipients to “protect
and promote the rights of each resident,” including “[t]he
right to choose a personal attending physician” and make
informed medical decisions; “[t]he right to be free from
physical or mental abuse, corporal punishment, involun-
tary seclusion, and any [medically unnecessary] physical or
chemical restraints”; and “[t]he right[s] to privacy” and
“confidentiality.” 42 U. S. C. §§1396r(c)(1)(A)(i)–(iv). The
Act further provides that funding recipients “must permit
each resident to remain in the facility and must not transfer
or discharge the resident” without cause. §1396r(c)(2)(A).
Recipients must also adopt procedures for residents to as-
sert these “rights” and to otherwise “voice grievances with
respect to [their] treatment or care.” §1396r(c)(1)(A)(vi).
The Act also imposes many requirements directly and
uniquely upon participating States, including in a subsec-
tion entitled “State requirements relating to nursing facil-
ity requirements.” §1396r(e). For instance, States must es-
tablish procedures for residents to challenge transfer and
discharge decisions and an appeals process for other deter-
minations. §§1396r(e)(3) and (e)(7)(F). States are also re-
quired to certify non-state-run facilities’ compliance with
the Act’s provisions by conducting annual surveys using
protocols developed by the Secretary of Health and Human
Services. §1396r(g)(2)(A). If a State finds that a facility is
not providing adequate care, it must conduct an extended
survey. §1396r(g)(2)(B). The Act also requires States to in-
vestigate resident complaints and perform onsite monitor-
ing at previously noncompliant or potentially noncompliant
facilities. §1396r(g)(4)(B). And, if it finds a violation that
“jeopardize[s] the health or safety of [a facility’s] residents,
the State shall take immediate action to remove the jeop-
ardy and correct the deficiencies.” §1396r(h)(1)(A).1
——————
1 This survey merely scratches the surface of the requirements that
FNHRA imposes upon participating States. See also, e.g., 42 U. S. C.
4 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
THOMAS, J., dissenting
FNHRA’s scheme is illustrative of many modern federal
spending programs, which often impose obligations directly
on States as a condition of funding. For example, as a con-
dition on highway funding, the Clean Air Act requires
States to draft “State implementation plans” if their metro-
politan areas fail to satisfy national ambient air quality
standards. 42 U. S. C. §§7410 and 7509(a)–(b). Among
other requirements, these plans must include emission lim-
itations, compliance timetables, source monitoring, permit-
ting systems, enforcement programs, and public participa-
tion. See §7410(a)(2). Other examples, spanning virtually
every domain of national and state policy, abound.
The ubiquity of such spending conditions, combined with
the Federal Government’s overwhelming financial heft, has
made Spending Clause legislation an extraordinarily po-
tent instrument of federal control.2 Congress and federal
——————
§1396r(e)(4) (“[T]he State must have implemented and enforced the
nursing facility administrator standards developed” by the Secretary for
Health and Human Services); §1396r(e)(7)(B)(i)(I) (in the case of men-
tally ill residents, “the State . . . must review and determine . . . whether
or not the resident . . . requires the level of services provided by a nursing
facility” or the services of different institutions).
2 The power of this tool has grown with the steady increase in federal
income-tax revenues since the adoption of the Sixteenth Amendment.
Although the Revenue Act of 1913 accounted for only 10% of federal rev-
enue, by 1950, the income tax was the Nation’s largest source of revenue,
and, by 2010, it accounted for a whopping 82% of federal revenue overall.
E. Jensen, Did the Sixteenth Amendment Ever Matter? Does It Matter
Today? 108 Nw. U. L. Rev. 799, 807, n. 44 (2014). This explosion of funds
created unprecedented threats to federalism due to the increased use of
grants. Federal “[m]onetary grants, so-called grants-in-aid, became
more frequent during the 1930’s, and by 1950 they had reached $20 bil-
lion or 11.6% of state and local government expenditures.” National Fed-
eration of Independent Business v. Sebelius, 567 U. S. 519, 674 (2012)
(NFIB) (joint dissent of Scalia, Kennedy, THOMAS, and ALITO, JJ.) (cita-
tion and footnote omitted). “By 1970 this number had grown to $123.7
billion or 29.1% of state and local government expenditures . . . . As of
2010, federal outlays to state and local governments came to over $608
Cite as: 599 U. S. ____ (2023) 5
THOMAS, J., dissenting
agencies “regularly us[e] conditions to direct state and local
governments in their regulatory and spending policies.” P.
Hamburger, Purchasing Submission 139 (2021) (Ham-
burger). As a result, “the priorities and programs of state
and local governments have increasingly come to reflect
federal decisions,” to the point that the States have virtu-
ally become “disaggregated sites of national governance,
not separate sovereigns.” Id., at 141 (internal quotation
marks omitted). Given the profound consequences of
spending conditions for the Nation’s governance and the
fundamental shift that they have wrought in our federalist
system, a sound understanding of their constitutional basis
and permissible legal effects is essential.
II
This case presents one aspect of that question: whether
spending conditions that impose obligations on States for
the benefit of third parties may be enforced under §1983.
That statute provides a cause of action against any “person
who, under color” of state law, deprives the plaintiff “of any
rights, privileges, or immunities secured by the Constitu-
tion and laws.” Accordingly, for the violation of a federal
statutory provision to give rise to a cognizable §1983 claim,
the provision must confer “rights, privileges, or immuni-
ties” that are “secured by . . . la[w].” This Court’s cases
make clear that a right is secured by law in the relevant
sense if, and only if, federal law imposes a binding obliga-
tion on the defendant to respect a corresponding substan-
tive right that belongs to the plaintiff.3
——————
billion or 37.5% of state and local government expenditures.” Ibid. (foot-
notes omitted).
3 See Golden State Transit Corp. v. Los Angeles, 493 U. S. 103, 106
(1989) (“[T]he plaintiff must assert the violation of a federal right. . . . In
deciding whether a federal right has been violated, we have considered
whether the provision in question creates obligations binding on the gov-
ernmental unit” and “whether the provision in question was intended to
benefit the putative plaintiff ” (alteration and internal quotation marks
6 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
THOMAS, J., dissenting
In Thiboutot, the Court held that “the plain language of
[§1983] undoubtedly embraces [a] claim that [the defend-
ant] violated” a spending-power statute, reasoning that
“the phrase ‘and laws’ . . . means what it says” and is not
“limited to some subset of laws.” 448 U. S., at 4. The Court
unquestioningly follows Thiboutot’s logic today.
It is obvious, however, that conditional spending legisla-
tion does not function—and, in particular, does not “secure
rights”—like laws enacted under Congress’ enumerated
legislative powers, such as the Commerce Clause. The lat-
ter, which I will refer to as “sovereign legislative” or “regu-
latory” powers, include powers to directly impose obliga-
tions, duties, prohibitions, and the like on individuals and
entities beyond the Federal Government, and hence to se-
cure corresponding rights in the persons and entities to
which such obligations are owed. Laws that Congress en-
acts pursuant to its regulatory powers are binding on the
regulated parties and pre-empt contrary state law of their
own force. Whatever rights such laws secure, those rights
are secured “by the . . . laws” themselves. §1983.
By contrast, legislation that conditions a State’s receipt
of federal funds on compliance with certain requirements
imposes no obligations and secures no rights of its own
force. The stated conditions simply have no effect and do
not arguably secure any rights (“by law” or otherwise) un-
less and until they are freely accepted by the State. Not
only that, the Executive Branch can prevent the conditions
——————
omitted)); Pennhurst State School and Hospital v. Halderman, 451 U. S.
1, 15, 16, n. 12, 18–19 (1981) (repeatedly using the formula “rights and
obligations” correlatively); see also W. Hohfeld, Some Fundamental Le-
gal Conceptions as Applied in Judicial Reasoning, 23 Yale L. J. 16, 28–
32 (1913). This rule, it should be noted, addresses what it means for
private rights to be secured by law, a distinct question from the level of
clarity with which Congress must speak before courts may infer that it
intended to create such rights. See Gonzaga Univ. v. Doe, 536 U. S. 273,
290 (2002).
Cite as: 599 U. S. ____ (2023) 7
THOMAS, J., dissenting
from taking effect by rejecting a State’s application to par-
ticipate in the spending program, and it can terminate their
effect by cutting off a State’s participation for noncompli-
ance with the conditions. In addition, States can opt out of
spending programs, completely nullifying whatever force
the spending conditions once had. This alone suggests that
spending conditions do not operate with the force of federal
law, as “Congress’ legislative powers cannot be avoided by
simply opting out.” D. Engdahl, The Contract Thesis of the
Federal Spending Power, 52 S. D. L. Rev. 496, 498 (2007)
(emphasis deleted); see also Townsend v. Swank, 404 U. S.
282, 292 (1971) (Burger, C. J., concurring in result)
(“[A]dherence to the provisions of [spending statutes] is in
no way mandatory upon the States under the Supremacy
Clause”).
Indeed, spending conditions like those in FNHRA do not
function as laws enacted under Congress’ regulatory pow-
ers, and, if they did, they would unconstitutionally com-
mandeer the States to administer federal programs ranging
from welfare, to healthcare, to air quality, and much more.
Such conditions are thus constitutional, if at all, only if un-
derstood as setting forth the terms of a federal-state con-
tract, rather than as binding federal law imposing legally
enforceable obligations of its own force. In holding that
FNHRA secures rights by federal law, the majority ignores
the contractual understanding of spending conditions and,
by doing so, calls their very constitutionality into question.
A
As noted earlier, a defining characteristic of modern
spending legislation is the imposition of obligations on
States that accept federal funds. Understanding a State’s
breach of such obligations as akin to violating rights se-
cured by federal law is incompatible with this Court’s anti-
commandeering doctrine. Under this bedrock constitu-
tional principle, Congress generally cannot directly
8 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
THOMAS, J., dissenting
regulate the States or require them to implement federal
programs.
“When the original States declared their independence,
they claimed the powers inherent in sovereignty.” Murphy
v. National Collegiate Athletic Assn., 584 U. S. ___, ___
(2018) (slip op., at 14) (citing Declaration of Independence
¶32).4 Later, in ratifying the Constitution, the people of the
original States granted carefully enumerated legislative
powers to the new Federal Congress, while preserving the
States’ pre-existing legislative power. 584 U. S., at ___ (slip
op., at 15). “[C]onspicuously absent from” Congress’ enu-
merated powers was “the power to issue direct orders to the
governments of the States.” Ibid.
Thus, as this Court has made clear, the Constitution
“confers upon Congress the power to regulate individuals,
not States.” New York v. United States, 505 U. S. 144, 166
(1992).5 As a corollary, Congress “may not conscript state
governments as its agents,” nor can it “require the States to
govern according to [its] instructions.” Id., at 162, 178.
And, “[w]hatever the outer limits of [state] sovereignty may
be, one thing is clear: The Federal Government may not
——————
4 The Articles of Confederation granted Congress only the power to act
upon States; it had no power to directly regulate individuals. The Con-
stitution flipped this arrangement by granting the Federal Government
the power to regulate individuals directly, but not States. See New York
v. United States, 505 U. S. 144, 162 (1992) (“ ‘The people, through [the
Constitution], established a more perfect union by substituting a na-
tional government, acting, with ample power, directly upon the citizens,
instead of the Confederate government, which acted with powers, greatly
restricted, only upon the States’ ” (quoting Lane County v. Oregon, 7
Wall. 71, 76 (1869); emphasis deleted)).
5 Congress possesses limited powers to directly regulate the States un-
der the Reconstruction Amendments. See, e.g., City of Boerne v. Flores,
521 U. S. 507, 518 (1997). Due to the federalism concerns inherent in
such regulation, these enforcement powers are cabined by the congru-
ence-and-proportionality test. Id., at 518–519. The careful tailoring of
this exception vividly proves the rule.
Cite as: 599 U. S. ____ (2023) 9
THOMAS, J., dissenting
compel the States to enact or administer a federal regula-
tory program.” Id., at 188.6
Yet that is precisely what many spending conditions re-
quire the State to do. Spending conditions like FNHRA’s
are nothing more than commands to States, qua States, to
administer federal benefits programs on terms dictated by
Congress. Such conditions cannot be treated as having the
force of federal law imposing direct obligations on the
States and securing correlative rights of private parties
without violating the anticommandeering doctrine.
It is no answer that the States consent to direct regula-
tion by agreeing to the spending conditions in return for
federal dollars. As the Court held in New York, “[w]here
Congress exceeds its authority relative to the States, . . . the
departure from the constitutional plan cannot be ratified by
the ‘consent’ of state officials.” Id., at 182. Because the peo-
ple have surrendered only limited and enumerated powers
to the Federal Government, the States and Congress cannot
jointly circumvent the ratification and amendment process
by agreeing “to the enlargement of the powers of Congress
beyond those enumerated in the Constitution.” Ibid. The
Federal Government cannot buy (or rent) the States’ power
to implement a federal program and then regard the condi-
tions that the States are implementing themselves as hav-
ing the force of federal law.
B
Of course, it is ultimately the States’ consent that gives
effect to conditions in spending legislation, but it does so in
an entirely different manner from an illicit expansion of
——————
6 The anticommandeering doctrine protects “political subdivisions” of
States against federal cooptation, as well as the States themselves.
Printz v. United States, 521 U. S. 898, 935 (1997); see also id., at 931,
n. 15 (“[T]he distinction in our Eleventh Amendment jurisprudence be-
tween States and municipalities is of no relevance here”).
10 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
THOMAS, J., dissenting
Congress’ regulatory powers. Rather, as the Court ob-
served in Pennhurst State School and Hospital v. Halder-
man, 451 U. S. 1 (1981), “legislation enacted pursuant to
the spending power is much in the nature of a contract.”
Id., at 17. A federal statute imposing conditions upon the
receipt of federal funding does not enact those conditions
with “the obligation of law”; it merely “proposes them as the
terms of a contractual promise.” Hamburger 132. Such
spending provisions “merely stipulate what the government
expects from recipients if it is to pay them or, later, not
withhold further payment and demand its money back.”
Ibid. Thus, “even when fully recited in statutes, federal
conditions do not come with legal obligation.” Ibid.Further, and as already noted, the conditions in spending
legislation only come into force upon the acceptance of an-
other party. Such conditions are thus “obligatory only by
virtue of such agreement and not by force of law.” D. Eng-
dahl, The Spending Power, 44 Duke L. J. 1, 104 (1994). To
be sure, “it is a statute that prescribes the funding condition
and requires denial of federal assistance if the funding con-
dition is not agreed to.” Ibid. But, “only the agreement—
and not the statute—makes the terms obligatory on the
funds recipient and thus ‘secures’ the contemplated third-
party rights.” Ibid.7 Accordingly, such “third-party rights
——————
7 For this reason, the mere fact that spending conditions are enacted
in statutory form is irrelevant; “not everything in a statute is legally
binding.” Hamburger 131; see also D. Engdahl, The Contract Thesis of
the Federal Spending Power, 52 S. D. L. Rev. 496, 500 (2007). In other
words, while Congress may influence policy “by attaching ‘strings’ to
grants of money given to state and local governments, . . . those strings
aren’t laws,” and do not secure rights, in the sense needed to support
§1983 liability. United States v. Morgan, 230 F. 3d 1067, 1073 (CA8
2000) (Bye, J., specially concurring); see also Westside Mothers v.
Haveman, 133 F. Supp. 2d 549, 581–582 (ED Mich. 2001) (“[N]o interest
is ‘secured’ by the federal Medicaid statute. Upon its enactment, this
federal law does not vest in a single American the right or privilege of
receiving federally-subsidized medical care. . . . [T]hough passed by both
Cite as: 599 U. S. ____ (2023) 11
THOMAS, J., dissenting
. . . are ‘secured’ (if at all) not by any ‘law,’ but only by the
contract between the recipient and the United States.”
Ibid.This contractual understanding of conditional spending
legislation is much more than a mere analogy; it is the only
possible explanation for why such legislation is not an un-
constitutional direct regulation of the States. To deny or
downplay this principle is to seek to have it both ways.
Much spending legislation conditions States’ receipt of fed-
eral funds on their undertaking obligations with respect to
third parties. For such legislation to survive a federalism
challenge, it must not directly impose obligations on the
States with the force of federal law. But, for those condi-
tions to be enforceable under §1983, they must secure third-
party rights by directly imposing correlative obligations on
the States with the force of federal law. Both of these things
cannot be true.
III
This contractual understanding of spending conditions is
also a necessary consequence of the limited nature of Con-
gress’ spending power, as consistently understood for
nearly two centuries of our Nation’s history. Indeed, this is
one point on which the Framers all seem to have agreed.
Despite heated debates over the source and scope of Con-
gress’ power to spend, all understood that this power did
not carry with it any independent regulatory authority.
That agreement persisted throughout the 19th century.
And, in the 20th, it was a critical underpinning of this
Court’s precedents upholding expansive uses of the spend-
ing power as consistent with Congress’ limited legislative
powers and our federalist system of government.
——————
houses of Congress and signed by the President, the Medicaid statute
has no force of its own. It is only when a State . . . accepts the Federal
Government’s offer and agrees to participate in the program that any
benefits accrue to eligible individuals”), rev’d, 289 F. 3d 852 (CA6 2002).
12 HEALTH AND HOSPITAL CORPORATION OF MARION
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THOMAS, J., dissenting
A
At the outset, while Congress undoubtedly possesses the
power to direct the expenditure of federal funds, it is im-
portant to note that the Constitution contains no “spending
clause.” From the beginning, some have located the spend-
ing power in the General Welfare Clause, and that view has
generally been accepted by this Court’s modern doctrine.
See Engdahl, 44 Duke L. J., at 53, and n. 220 (describing
Alexander Hamilton’s views); South Dakota v. Dole, 483
U. S. 203, 206 (1987). Yet, there are serious problems with
that view.
The General Welfare Clause is simply part of the Taxing
Clause, which reads in relevant part: “The Congress shall
have Power To lay and collect Taxes, Duties, Imposts and
Excises, to pay the Debts and provide for the common De-
fence and general Welfare of the United States.” Art. 1, §8,
cl. 1. By its terms, the only authority vested by this text is
a power to “lay and collect Taxes, Duties, Imposts and Ex-
cises.” This power is then qualified by the Debts and Gen-
eral Welfare Clauses, which limit the objects for which Con-
gress can exercise that power. The General Welfare Clause
is thus most naturally read as a qualification on the sub-
stantive taxing power.
Consider also that the General Welfare Clause references
not only the “general Welfare” but also “the common De-
fence.” If the Clause were construed as an affirmative grant
of power to spend for the common defense, it would make
redundant Congress’ powers to “raise and support Armies”
and to “provide and maintain a Navy,” also found in Article
I, §8, cls. 12–13. Thus, “[i]f the reference to ‘common De-
fence’ spending simply alludes to power conferred else-
where,” then it seems illogical to consider the terms “gen-
eral Welfare” as the source of a freestanding power to spend
for whatever purposes. D. Engdahl, The Basis of the Spend-
ing Power, 18 Seattle U. L. Rev. 215, 222 (1995).
The Taxing Clause is also a strange candidate for the
Cite as: 599 U. S. ____ (2023) 13
THOMAS, J., dissenting
source of a general congressional spending power because
“it fails to provide any authority at all to spend money ac-
quired otherwise than by taxation.” Ibid. Yet, “[t]he federal
treasury receives money from many other sources, includ-
ing penalties, fines, user fees, leases, surplus property
sales, gifts, bequests, and returns on investments.” Ibid.And those sums are a pittance in comparison to those raised
under Congress’ Borrowing Clause power, see Art. I., §8,
cl. 2, which has always been one of the major sources of fed-
eral funds. Unless federal spending on credit and from rev-
enues not derived from “Taxes, Duties, Imposts and Ex-
cises” is unconstitutional, the General Welfare Clause
cannot be the source of Congress’ spending power.
The Clause certainly is not an independent grant of reg-
ulatory power to legislate for the general welfare, as the his-
tory of the Constitution’s framing and ratification makes
clear. The Philadelphia Convention initially adopted a res-
olution that Congress be authorized “ ‘to legislate in all
cases for the general interests of the Union, and also in
those to which the States are separately incompetent, or in
which the harmony of the United States may be interrupted
by the exercise of individual legislation.’ ” J. Renz, What
Spending Clause? (Or the President’s Paramour), 33 John
Marshall L. Rev. 81, 104 (1999) (Renz). But the Convention
later abandoned this vesting of a broad power to legislate
for the general welfare in favor of the enumeration of spe-
cific federal legislative powers and the creation of a taxing
power limited by the General Welfare Clause. See R. Natel-
son, The General Welfare Clause and the Public Trust: An
Essay in Original Understanding, 52 Kan. L. Rev. 1, 23–29
(2003) (Natelson); see also Renz 104–105 (counting five in-
stances in which the Convention considered and rejected at-
tempts “to insert a grant of general legislative power into
the Constitution”).8
——————
8 One instance in particular demonstrates that the General Welfare
14 HEALTH AND HOSPITAL CORPORATION OF MARION
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Consistent with its text, Federalist advocates of the Con-
stitution defended the General Welfare Clause to the rati-
fying public as nothing more than a limitation on the taxing
power. See, e.g., 3 Debates on the Constitution 207 (J. Elliot
ed. 1876) (Elliot’s Debates) (E. Randolph, Virginia Conven-
tion) (“The plain and obvious meaning of this is, that no
more duties, taxes, imposts, and excises, shall be laid, than
are sufficient to pay the debts, and provide for the common
defence and general welfare, of the United States”); N. Web-
ster, An Examination Into the Leading Principles of the
Federal Constitution, in Pamphlets on the Constitution of
the United States 50 (P. Ford ed. 1888) (“[I]n the very clause
which gives the power of levying duties and taxes, the pur-
poses to which the money shall be appropriated are speci-
fied, viz. to pay the debts and provide for the common de-
fence and general welfare of the United States”); see also
Natelson 47–49. “[T]heir basic message was that the lan-
guage in question was not a grant at all—rather it was a
restriction on federal authority.” Id., at 39. As Governor
Randolph emphatically declared: “Is this an independent,
separate, substantive power, to provide for the general wel-
fare of the United States? No, sir.” 3 Elliot’s Debates 466.
Federalists went out of their way to specifically disclaim
that the General Welfare Clause would vest any independ-
ent regulatory power. For example, James Madison ex-
pressly rejected Anti-Federalist attempts to portray the
General Welfare Clause as granting “an unlimited commis-
——————
Clause is simply a restriction on the Taxing Clause. The Committee of
Style slightly altered the text agreed to by the Convention by changing
the comma after “Excises” into a semicolon, so that the General Welfare
Clause “became an additional power, conjoined to the power to tax, ra-
ther than merely a limitation on it.” Hamburger 283. The Convention,
however, recognized the alteration and restored the comma, “corrobo-
rat[ing] the conclusion that the General Welfare Clause was not an inde-
pendent power.” Natelson 28.
Cite as: 599 U. S. ____ (2023) 15
THOMAS, J., dissenting
sion to exercise every power which may be alleged to be nec-
essary for the common defense or general welfare.” The
Federalist No. 41, p. 262 (C. Rossiter ed. 1961). Similarly,
in rebutting Patrick Henry’s warning that the Clause would
vest a regulatory power, Governor Randolph observed: “You
must violate every rule of construction and common sense,
if you sever it from the power of raising money, and annex
it to anything else, in order to make it that formidable
power which it is represented to be.” 3 Elliot’s Debates 600.
Again and again, leading Federalists represented the Gen-
eral Welfare Clause simply “as qualifying the fiscal power.”
E. Corwin, The Spending Power of Congress—Apropos the
Maternity Act, 36 Harv. L. Rev. 548, 552 (1923) (citing The
Federalist Nos. 30 and 34 (A. Hamilton), and 41 (J. Madi-
son)). “It was generally understood” by the Constitution’s
ratifiers “that the General Welfare Clause did not confer
power to regulate”; such regulatory powers were conferred
only by specific enumerations such as the Commerce
Clause. T. Sky, To Provide for the General Welfare 67
(2003) (Sky).
Thus, even if one implausibly regards the General Wel-
fare Clause as a “Spending Clause,” it is unambiguous that
the Clause confers no independent regulatory power. Im-
portantly, the same holds for every other plausible textual
anchor for Congress’ general spending power. First, the
Necessary and Proper Clause is a natural candidate for the
spending power because spending funds may be “necessary
and proper for carrying into Execution” the Federal Gov-
ernment’s enumerated powers. Art. I., §8, cl. 18; see G.
Lawson & G. Seidman, The Constitution of Empire 30
(2004) (Lawson & Seidman) (“This ‘Sweeping Clause’ . . .
unquestionably includes the power to enact spending laws
that are ‘necessary and proper’ for effectuating federal pow-
ers”); K. Stith, Congress’ Power of the Purse, 97 Yale L. J.
1343, 1348 (1988) (arguing that the Necessary and Proper
16 HEALTH AND HOSPITAL CORPORATION OF MARION
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Clause “includes the power to spend public funds on author-
ized federal activities”). But, because the Clause authorizes
only those spending measures that are “ ‘necessary and
proper for carrying into Execution’ other enumerated fed-
eral powers[,] Congress can . . . spend only if the appropri-
ation is tied to the execution of one of the federal govern-
ment’s granted powers.” Lawson & Seidman 30. The
Clause thus “does not provide a stand-alone grant of spend-
ing authority, and certainly not an authority to spend for a
nonspecific ‘general welfare of the United States.’ ” Ibid.
A second plausible source of the spending power is the
Property Clause, which provides that “Congress shall have
Power to dispose of and make all needful Rules and Regu-
lations respecting the Territory or other Property belonging
to the United States.” Art. IV, §3, cl. 2. The term “other
Property” may “comprehen[d] personal property no less
than real,” and “personal property includes money, as well
as financial assets of all kinds.” Engdahl, 18 Seattle U.
L. Rev., at 250 (emphasis deleted). But the power to dispose
of funds does not carry with it any regulatory power; the
Property Clause “only authorizes the control and disposi-
tion of federal property” and “does not disturb the allocation
of governance authority otherwise accomplished under the
principle of enumerated powers.” Id., at 251. Thus, when
disposing of federal property under the Property Clause,
“Congress has no more competence to make ‘law’ than any
private donor or testator has.” Engdahl, 44 Duke L. Rev.,
at 104.
B
In the early decades after ratification, both the source
and the scope of the spending power were hotly contested,
usually in debates over “internal improvements” such as
roads and canals. One side, represented by Madison, main-
tained that federal spending must be strictly in aid of the
Federal Government’s specifically enumerated powers—for
Cite as: 599 U. S. ____ (2023) 17
THOMAS, J., dissenting
instance, expenditures to construct a road would be justi-
fied only if the road could be constructed under the Post
Roads Clause or some other enumerated power. See Renz
108–119; see also J. Eastman, Restoring the “General” to
the General Welfare Clause, 4 Chap. L. Rev. 63, 72 (2001).
As this side of the debate also took a narrow view of the
enumerated powers, it generally argued that the Federal
Government could not fund internal improvements without
a constitutional amendment. See Sky 140–141. The other
camp, associated with the nationalist views of Hamilton
and Joseph Story, understood the General Welfare Clause
to “include a very broad spending authority,” which could
be applied to purposes not specifically enumerated by the
Constitution. Natelson 12; see also Renz 124–126.
Even this camp, however, understood that “the General
Welfare Clause does not include a power to regulate.”
Natelson 12; see also Sky 96. Hamilton, for example, made
clear that the spending power did not “imply a power to do
whatever else should appear to Congress conducive to the
general welfare.” Report on the Subject of Manufactures 37
(1791). As he further elaborated, “[a] power to appropriate
money [does] not carry a power to do any other thing, not
authorized in the Constitution, either expressly or by fair
implication.” Ibid. Instead, any regulatory authority had
to be tethered to some independent regulatory power.
Thus, under this view, Congress could spend money on
roads and canals unconnected with the enumerated powers,
but it would have to depend on the States for any regulatory
legislation needed to complete and preserve the improve-
ments.
This understanding that the spending power itself ex-
tended only to the “application of money,” ibid. (emphasis
in original), led Hamilton to favor a constitutional amend-
ment “empowering Congress to open canals.” Letter from
A. Hamilton to J. Dayton (1799), in 10 Works of Alexander
Hamilton 334 (H. Lodge ed. 1904). After all, opening canals
18 HEALTH AND HOSPITAL CORPORATION OF MARION
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“involve[d] much more than spending money: it involve[d]
acquiring rights of way and constructing and operating the
improvements.” Engdahl, 44 Duke L. Rev., at 23. Thus, it
was precisely the “insufficiency of the spending power to
override state law obstacles to achieving the targeted end
that made Hamilton conclude that a constitutional amend-
ment for canals was necessary.” Id., at 24. “[F]ederal fund-
ing alone” could not “override” “incompatible or adverse
state policies.” Ibid. As this example demonstrates, even
those who held the broadest conception of the spending
power recognized that it was only a power to spend, not a
power to impose binding requirements with the force of fed-
eral law. See Sky 95.
The limited nature of the spending power was also a rare
point of agreement in Hamilton and Jefferson’s bitter quar-
rel over the constitutionality of a national bank. Reflecting
the ratification era understanding of the General Welfare
Clause, Jefferson observed that “the laying of taxes is the
power and the general welfare the purpose for which the
power is to be exercised.” Opinion on the Constitutionality
of the Bill for Establishing a National Bank (Feb. 15, 1791),
in 19 Papers of Thomas Jefferson 277 (J. Boyd ed. 1974)
(emphasis in original). If the General Welfare Clause went
beyond “describing the purpose of the” Taxing Clause and
represented “a distinct and independent power to do any act
[Congress may] please, which might be for the good of the
Union,” it “would render all the preceding and subsequent
enumerations of power completely useless.” Ibid.; accord,
J. Madison, The Bank Bill (Feb. 2, 1791), in 13 Papers of
James Madison 375 (C. Hobson & R. Rutland eds. 1981) (in-
terpreting the General Welfare Clause as a distinct power
“would supersede all the powers reserved to the state gov-
ernments”). In response, Hamilton justified the bank based
on Congress’ enumerated powers, such as the Commerce
and Taxing Clauses. Opinion on the Constitutionality of an
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THOMAS, J., dissenting
Act To Establish a Bank (Feb. 23, 1791), in 8 Papers of Al-
exander Hamilton 97 (H. Syrett ed. 1965). He discussed the
General Welfare Clause only as a limitation: “It is true, that
[Congress] cannot without breach of trust, lay taxes for any
other purpose than the general welfare.” Id., at 129. In his
view, the spending power was emphatically limited to “the
application of money.” Ibid. (emphasis in original). Jeffer-
son and Hamilton could agree that it was no independent
font of legislative power.
In sum, the Framers and Ratifiers understood the Taxing
and General Welfare Clause as granting only a power to
tax. What our modern cases refer to as the “Spending
Clause”—in fact, the General Welfare Clause—was under-
stood by the Framers and the ratifying public as granting
no regulatory authority. One thing that the opposing men
and factions of the founding generation agreed upon was
that the Federal Government’s power to spend was just
that—a power to spend, involving no regulatory authority.
Instead, the power to bind with the force of law must come
from Congress’ enumerated legislative powers rather than
its spending power.
C
Though the scope and source of the spending power con-
tinued to be vigorously contested into the 19th century, the
fundamental understanding that federal spending
measures could not bind with the force of law remained
common ground. For example, in his last official act, Pres-
ident Madison vetoed an internal improvements bill in part
because the “train of powers incident” to constructing and
maintaining such improvements were beyond Congress’
enumerated powers. 30 Annals of Cong. 211, 212 (1817).
The General Welfare Clause could not provide the needed
regulatory authority, as such an interpretation “would have
the effect of giving to Congress a general power of legisla-
tion,” thus rendering the Constitution’s “special and careful
20 HEALTH AND HOSPITAL CORPORATION OF MARION
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THOMAS, J., dissenting
enumeration of powers . . . nugatory and improper.” Id., at
212. That the bill required state consent was likewise in-
sufficient because, if the power “be not possessed by Con-
gress, the assent of the States . . . cannot confer the power.”
Ibid.Upon assuming office, President James Monroe sent a
message to Congress agreeing with Madison’s views; the
message was then referred to a special Committee in the
House of Representatives led by Congressman Henry
Tucker. Corwin, 36 Harv. L. Rev., at 559–560. The Tucker
Committee produced an exhaustive report on internal im-
provements, which disagreed with nearly every aspect of
Madison and Monroe’s position. Id., at 560–561. Signifi-
cantly, however, the Committee agreed that the General
Welfare Clause did not vest the power needed to make in-
ternal improvements, relying instead on the Constitution’s
specific enumerations such as the Post Roads Clause. 31
Annals of Cong. 454 (1817) (“disavow[ing] any use of the
general phrase in the Constitution to provide for the com-
mon defence and general welfare, as applicable to the enu-
meration of powers, or as extending the power of Congress
beyond the specified powers”). The Tucker Committee also
agreed with President Monroe that the spending power did
not “extend the specified or incidental powers of the Gov-
ernment” or allow Congress to exercise any “jurisdictional
[i.e., regulatory] rights” over improvements. Id., at 459–
460. Thus, “if the power to make a road or dig a canal is not
given” by one of Congress’ enumerated regulatory powers,
“the power of appropriating money cannot confer it.” Id., at
459.9
——————
9 After a debate on the Tucker Report, the House approved a resolution
declaring Congress’ authority to appropriate money to construct internal
improvements pursuant to its enumerated powers, voting down several
other resolutions that would have declared a congressional power to
make monetary grants to States untethered to any enumerated power
and that the Federal Government had the power to itself construct and
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THOMAS, J., dissenting
In his second term, President Monroe set forth the fullest
exposition of the understanding that the spending power
involved no regulatory authority. In 1822, Congress passed
a bill to establish a system of internal improvements, as-
serting the “power to establish turnpikes with gates and
tolls, and to enforce the collection of tolls by [federal] pen-
alties.” Sky 147 (internal quotation marks omitted). Pres-
ident Monroe then vetoed the measure, judging that Con-
gress’ spending authority did not extend to such “a complete
right of jurisdiction and sovereignty for all the purposes of
internal improvement, and not merely the right of applying
money under the power vested in Congress to make appro-
priations.” 2 Messages and Papers of the Presidents 1789–
1908, p. 142 (J. Richardson ed. 1897) (Richardson). Because
Monroe understood “that Congress do[es] not possess this
power [and] the States individually can not grant it,” he
agreed with Madison and Hamilton that the “power can be
granted only by an amendment to the Constitution.” Id., at
143.
To explain his veto, President Monroe sent Congress an
extensive report entitled “Views of the President of the
United States on the Subject of Internal Improvements.” In
this report—perhaps “the most elaborate constitutional dis-
cussion ever sent to the Capitol from the White House”—
Monroe synthesized the understanding of the spending
power from the founding of the Republic. L. Rogers, The
Postal Power of Congress 75 (1916). And, in doing so, he
largely settled the contours of that understanding for over
a century.
In the centerpiece of the Views, Monroe explained that
the spending power carries no incidental power to regulate
individuals or States. Echoing Hamilton, Monroe under-
stood the spending power to consist of “a right to appropri-
ate the public money, and nothing more.” Richardson 162.
——————
maintain internal improvements. 32 Annals of Cong. 1381–1389 (1818).
22 HEALTH AND HOSPITAL CORPORATION OF MARION
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It carries with it “no incidental power, nor does it draw after
it any consequences of that kind.” Id., at 168. Monroe pro-
ceeded to carefully distinguish the spending power from
Congress’ authority to impose obligations and duties: “[T]he
use or application of the money after it is raised is a power
altogether of a different character” from Congress’ enumer-
ated regulatory powers such as the taxing power; “[i]t im-
poses no burden on the people, nor can it act on them in a
sense to take power from the States.” Id., at 164.
Applying this understanding of the spending power to the
question of internal improvements, Monroe explained that
Congress could only “appropriate the money necessary to
make them.” Id., at 168. Where none of Congress’ enumer-
ated regulatory powers was applicable, Monroe concluded,
“[f]or every act requiring legislative sanction or support the
State authority must be relied on.” Ibid. Thus, Congress
could not itself pass laws providing for “[t]he condemnation
of the land, . . . the establishment of turnpikes and tolls,
and the protection of the work when finished.” Ibid.Monroe’s summation of the federal spending power, re-
flecting that it does not carry with it any regulatory power,
was accepted throughout the 19th century by friends and
foes of federal power alike. In his 1825 inaugural address,
President John Quincy Adams explained that Monroe’s
Views had “conciliated the sentiments and approximated
the opinions of enlightened minds upon the question of con-
stitutional power.” Inaugural Address, Mar. 4, 1825, in 5
American State Papers, Foreign Relations 753, 755 (1858).
Five years later, President Andrew Jackson vetoed the
Maysville Road Bill of 1830 for the same reasons Monroe
had vetoed the Cumberland Road Bill of 1822: Congress
lacks “[t]he right to exercise as much jurisdiction as is nec-
essary to preserve the works and to raise funds by the col-
lection of tolls to keep them in repair,” and “[w]ithout [such
power] nothing extensively useful can be effected.” Rich-
ardson 492.
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THOMAS, J., dissenting
Justice Joseph Story’s Commentaries on the Constitution
also recognized that the spending power did not carry with
it any auxiliary power to bind individuals or States. Citing
Monroe’s Views liberally, Story agreed that Congress could
not enact a system of internal improvements under the
General Welfare Clause. Although he located the spending
power in that Clause, Story understood that the power was
confined “to mere appropriations of money,” and that, as a
result, the Federal Government could not regulate internal
improvements except pursuant to its legislative “enumer-
ated powers.” 3 Commentaries on the Constitution of the
United States, §1269, p. 150 (1833); see also Sky 224 (“[A]s
read by Story, the General Welfare Clause did not consti-
tute a regulatory power, independent of the spending
power, authorizing Congress to enact whatever measures it
wished . . . under an unlimited power to legislate for the
general welfare of the United States”).
Although disagreement on whether Congress could spend
for purposes beyond the enumerated powers persisted
through the Antebellum and Reconstruction eras, the un-
derstanding that the spending power did not imply regula-
tory power persisted. See generally Sky 232–240, 270–291.
Because Congress was acting solely under its power to
spend, it relied on the States’ acceptance of terms and upon
the States’ legislative powers to carry out federal spending
programs.
D
Given this consensus, it is not surprising that the first
federal grant-in-aid spending programs were contractual in
nature. The Morrill Act of 1862, perhaps the first such pro-
gram, extended an offer to the States to accept donations of
federal lands on the condition that the State use the land to
establish a college. 12 Stat. 504–505. States had two years
to accept the federal terms in the form of an Act by the
24 HEALTH AND HOSPITAL CORPORATION OF MARION
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State’s legislature. Id., at 505 Significantly, the only con-
sequence for a State’s breach of the use condition was con-
tractual in nature—“the grant to such State shall cease;
and said State shall be bound to pay the United States the
amount received of any lands previously sold.” Id., at 504–
505. The Second Morrill Act, enacted in 1890, followed the
same framework, donating money for the endowment of ag-
ricultural and mechanical arts colleges, subject to the con-
dition that black students not be excluded. Ch. 841, 26 Stat.
417. Like the First Morrill Act, the only consequence for
noncompliance was that future appropriations under the
Act would cease until the State brought itself into compli-
ance. Id., at 419.
In the early 20th century, the adoption of the Sixteenth
Amendment and the national income tax vastly expanded
the revenue available to the Federal Government. But the
increasingly ambitious spending programs that followed
did not break the contractual pattern established by the
Morrill Acts. Thus, early-20th-century highway grants
took the form of an offer to enter a contract, with the conse-
quence of noncompliance being the cutoff of federal funds.
See Corwin, 36 Harv. L. Rev., at 574, n. 72 (describing Fed-
eral Highway Act of 1916); see also id., at 573–575 (collect-
ing other examples).
Even in the New Deal era, advocates of far-reaching
spending programs continued to understand the spending
power as a mere power of appropriation. Professor Corwin,
for example, recognized that the States must be depended
upon to exercise the legislative power needed to implement
such programs. Thus, “federal highway construction re-
lie[d] on the state power of eminent domain, as well as on
state power to police and protect highways during and after
their construction.” National-State Cooperation—Its Pre-
sent Possibilities, 46 Yale L. J. 599, 617 (1937). Similarly,
national protection of forests depended on “the power of the
states to regulate the conduct of persons entering forests,”
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THOMAS, J., dissenting
and the provision of maternity benefits depended on “the
power of the cooperating states to compel birth registration,
the licensing of mid-wives, etc.” Ibid. Thus, more than 100
years after Monroe’s Views, it was still well understood that
the Federal Government’s spending power needed to work
with “the wider coercive powers of the states” to accomplish
its ends. Ibid. And, a State’s acceptance of federal funds in
return for exercising its own powers did not expand the
Federal Government’s legislative powers.
In sum, from the framing of the Constitution to well into
the 20th century, it was virtually undisputed that Congress’
spending power was nothing more than a power to spend.
It included no regulatory authority to bind parties, to secure
rights or impose duties with the force of federal law, and no
authority to directly regulate the States even with their
consent.
E
When cases concerning expansive federal spending pro-
grams first began to reach this Court, they vividly illus-
trated both the enduring understanding of the spending
power as a nonregulatory power and the contractual under-
standing of spending conditions. The Federal Government
defended major spending programs on the basis of that un-
derstanding, and the programs survived this Court’s review
only because of those traditional premises.
In Massachusetts v. Mellon, 262 U. S. 447 (1923), the
Court rejected as nonjusticiable Massachusetts’ claim that
the Maternity Act of 1921 was “an attempt to legislate out-
side the powers granted to Congress by the Constitution
and within the field of local powers exclusively reserved to
the States.” Id., at 482. The Court first stated that it
“[p]robably . . . would be sufficient to point out that the pow-
ers of the State are not invaded, since the statute imposes
no obligation but simply extends an option which the State
is free to accept or reject.” Id., at 480. In other words, the
26 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
THOMAS, J., dissenting
State could not be injured because the Act was not a direct
legal regulation. Rather, it was a mere offer to bargain—it
“imposed” no “burden . . . upon the States” and did not re-
quire them “to do or to yield anything” of its own force. Id.,
at 482. The State could not seek judicial redress because
the contractual nature of the Act’s provisions meant that
States could vindicate their own rights “by the simple expe-
dient of not yielding.” Ibid.; see also Corwin, 36 Harv.
L. Rev., at 579 (noting that the Maternity Act adhered to
the traditional requirements of state consent and the “gen-
eral caveat against jurisdictional rights following in the
wake of appropriations”). “[T]he Justices in Mellon under-
stood that Congress’ power to spend money is not a legisla-
tive power.” Engdahl, 52 S. D. L. Rev., at 498 (emphasis in
original).
Cases involving New Deal spending programs teach the
same lesson. For example, United States v. Butler, 297
U. S. 1 (1936), concerned the constitutionality of the Agri-
cultural Adjustment Act, which offered subsidies to farmers
not to sell crops. The Government defended the Act on the
ground that it did not regulate any private or state party.
Instead, “[a]ny commands or restrictions in the Act [were]
imposed only upon the use by [federal] administrative offi-
cials of the money granted.” Brief for United States in
United States v. Butler, O. T. 1935, No. 401, p. 264. In line
with the traditional distinction between mere spending and
regulatory commands, the Government urged that “Con-
gress ha[d] not gone beyond its power of authorizing an ex-
penditure” precisely because “[i]t ha[d] not sought to force
or command citizens to receive the money offered and to
perform the conditions upon which the funds are to be dis-
bursed.” Id., at 265. The Government expressly relied on
the contractual nature of the Act’s conditions, as distinct
from any “exercise of sovereign regulation”:
“It would be most unusual to suppose that a contract
Cite as: 599 U. S. ____ (2023) 27
THOMAS, J., dissenting
of this nature, entered into freely by both parties, is an
exercise of sovereign regulation and control over one of
the parties or over the subject matter with which the
contract deals. . . . The rights of the United States un-
der the contracts are no greater than would be the
rights of a private citizen under similar contracts, and
enforcement must be by ordinary judicial process ac-
cording to the law of the forum. The contracts are not
derogatory of any sovereign rights of the States; they
are carried out pursuant to and under the protection of
the laws of the States. . . . The purpose and effect of the
contracts so entered into are simply to accomplish the
spending of the money on the conditions imposed by
Congress, and in authorizing execution of such con-
tracts Congress was not exerting a power outside of the
field of appropriation.” Id., at 266–267.
The Government also disclaimed that the Act would have
pre-emptive effect: Because it went “no further than offer-
ing benefits to those who comply with certain conditions,”
States “remain[ed] as free after the passage of this Act as
before to pass laws rendering it impossible for any of their
inhabitants to comply with such conditions.” Id., at 268.
Thus, to avoid a Tenth Amendment problem, the Govern-
ment relied on the traditional distinction between the Fed-
eral Government’s power to spend and its power to regu-
late:
“The distinction between an application of the Fed-
eral lawmaking power to enforce compliance with the
desire of Congress and the use of the spending power
to offer benefits which might persuade people to that
end [was] recognized in this manner by th[e] first Con-
gresses.
. . . . .
“When the United States goes no further than ex-
tending benefits to citizens who arrange their affairs in
28 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
THOMAS, J., dissenting
a manner thought beneficial by Congress, there is no
direct exercise of Federal power on those affairs and
they remain subject to the unhampered control of the
States. Consequently, in a case of this nature, the ef-
fect which the Act of Congress will have in a State is
dependent entirely upon the voluntary action of that
State and its inhabitants.” Id., at 274, 276.
In deciding the case, the Court took the Government’s
concessions as given, stating, “[i]t is not contended that [the
General Welfare Clause] grants power to regulate agricul-
tural production.” Butler, 297 U. S., at 64. The Court then
agreed with Justice Story’s observation that “the only thing
granted is the power to tax for the purpose of providing
funds for payment of the nation’s debts and making provi-
sion for the general welfare.” Ibid. Congress’ spending
power, even if located in the General Welfare Clause, con-
ferred no regulatory power.
The Court proceeded to hold the Act unconstitutional pre-
cisely because it was, in reality, “a statutory plan to regu-
late and control agricultural production, a matter beyond
the powers delegated to the federal government.” Id., at 68.
That was because the “regulation [was] not in fact volun-
tary,” as it would lead to “financial ruin” for farmers who
refused the Act’s benefits. Id., at 70–71. Confirming an-
other aspect of the traditional doctrine, the Court held that
even the purely voluntary consent of private parties could
not expand Congress’ limited regulatory powers. Id., at 74–
75.10
——————
10 The anticoercion rule reflected in Butler remains a vital part of this
Court’s spending-power jurisprudence. See NFIB, 567 U. S., at 575–585
(opinion of ROBERTS, C. J.); id., at 671–678 (joint dissent of Scalia, Ken-
nedy, THOMAS, and ALITO, JJ.). As Butler makes clear, that rule is firmly
rooted in the contractual understanding of spending conditions, and
NFIB further recognized the close connection between the rule and the
anticommandeering doctrine when spending conditions involving States
are at issue. See NFIB, 567 U. S., at 575–585 (opinion of ROBERTS, C. J.);
Cite as: 599 U. S. ____ (2023) 29
THOMAS, J., dissenting
The challenge to the Social Security Act in Steward Ma-
chine Co. v. Davis, 301 U. S. 548 (1937), followed a similar
pattern but reached the opposite result based on a different
level of perceived coercion. As in Butler, the Federal Gov-
ernment defended a federal statute—here, the Social Secu-
rity Act—by representing that conditions on the grant of
federal funds “are not regulatory” in nature and are thus
within the spending power. Brief for United States in Stew-
ard Machine Co. v. Davis, O. T. 1936, No. 837, p. 135. Seek-
ing to avoid a repeat of its loss in Butler, the Government
argued that the program was also not regulatory in fact be-
cause it did not coerce States to take or refrain from taking
any actions. Brief for United States in Steward Machine
Co. 100, 105–106.
This time, the Court agreed with the Government, find-
ing that the Act was not coercive and thus did not “go be-
yond the bounds of ” Congress’ spending power. Steward
Machine Co., 301 U. S., at 591–592. Then, in rejecting a
federalism challenge to the measure, the Court observed
that once the State accepted the federal conditions, it was
bound with even lesser force than an ordinary contract. Id.,at 594–595. The State was “still free, without breach of an
agreement, to change her system over night.” Id., at 595.
“No officer or agency of the national Government [could]
force a compensation law upon her or keep it in existence,”
——————
id., at 677–678 (joint dissent). Indeed, the anticoercion rule supplements
those doctrines through its recognition of the practical realities of Con-
gress’ modern spending power: Because the Federal Government’s over-
whelming fiscal resources enable it to create “gun to the head” situations
in which there is no practical possibility of opting out, the rule prevents
the Government from purchasing the States’ regulatory powers to imple-
ment federal goals that it cannot attain through its own more limited
powers. Id., at 581 (opinion of ROBERTS, C. J.); accord, id., at 677 (joint
dissent) (“Congress effectively engages in this impermissible compulsion
when state participation in a federal spending program is coerced, so that
the States’ choice whether to enact or administer a federal regulatory
program is rendered illusory”).
30 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
THOMAS, J., dissenting
nor could they “supervise or control the application of the
payments.” Ibid.11
The Court again demonstrated its adherence to the tra-
ditional view in Oklahoma v. Civil Serv. Comm’n, 330 U. S.
127 (1947). There, the U. S. Civil Service Commission de-
termined that an Oklahoma highway commissioner had vi-
olated the Hatch Act, pledging to withhold a portion of the
State’s highway grants equal to two years’ of the commis-
sioner’s compensation if the State failed to remove him. Ok-
lahoma challenged the Commission’s order and the Act on
which it was based as an illicit attempt to regulate the
State’s internal affairs. Id., at 133. Citing Mellon, the
Court held that the Act was valid because it did not directly
regulate the State, which had “adopted the ‘simple expedi-
ent’ of not yielding” by refusing to remove its highway com-
missioner. 330 U. S., at 143.
Thus, to defend these spending programs in the first half
of the 20th century, the Government relied on the long-set-
tled understanding that the power to spend carries with it
no sovereign legislative power to create rights and duties.
To the contrary, the Government represented that these
programs had the binding force, at most, of contracts. They
did not pre-empt, nor did they bind States with the force of
law; they merely spent federal dollars upon conditions, the
violation of which entitled the Government to cease further
payments. The Court took this position as a given, and the
contractual nature of spending conditions is precisely what
saved them from constitutional challenge.
In sum, the historical record is clear and consistent on a
critical proposition: The spending power is the power to
spend only. Any duties imposed by regulatory legislation,
and any correlative rights secured by law, must find their
——————
11 Justice Sutherland’s dissent recognized that the majority had ap-
plied the traditional framework, disagreeing only with its interpretation
of how the Social Security Act actually functioned. See Steward Machine
Co., 301 U. S., at 611–612.
Cite as: 599 U. S. ____ (2023) 31
THOMAS, J., dissenting
source in one of Congress’ enumerated powers or the legis-
lative powers of the States. Congress’ spending power can-
not secure rights by law.
IV
The contractual nature of spending conditions was taken
as a given until the second half of the 20th century, when
individuals first began to bring §1983 suits premised on vi-
olations of conditions contained within spending statutes
(usually, the Social Security Act). From the enactment of
§1983’s predecessor statute in 1871 to the Court’s decision
in Thiboutot in 1980, this Court had never held that §1983
was available to redress any and all violations of federal
legislation. Indeed, there were almost “no square holdings”
concerning the precise scope of the statutory rights vindica-
ble by §1983. Chapman v. Houston Welfare Rights Organi-
zation, 441 U. S. 600, 645 (1979) (Powell, J., concurring);
see also Eisen v. Eastman, 421 F. 2d 560, 561–566 (CA2
1969) (Friendly, J.). Perhaps the only such square holding
was that of Holt v. Indiana Mfg. Co., 176 U. S. 68 (1900),
which narrowly construed §1983’s predecessor statute to
“refer to civil rights only,” making it “inapplicable” in a suit
based on the federal patent laws. Id., at 72.12
——————
12 This civil rights connection was not arbitrary. Section 1983 origi-
nated in the Enforcement Act of 1871, which Congress “passed for the
express purpose of ‘enforc[ing] the Provisions of the Fourteenth Amend-
ment.’ ” Thiboutot, 448 U. S., at 25, n. 15 (Powell, J., dissenting) (quoting
17 Stat. 13; alteration in original). Moreover, the original text of the
statute referred only to rights “secured by the Constitution of the United
States,” 17 Stat. 13, the words “and laws” being added as part of the gen-
eral 1874 revision of the federal statutes. Rev. Stat. §1979, 42 U. S. C.
§1983. Under the circumstances, there is substantial reason to doubt
that Congress fundamentally transformed a mechanism to enforce the
Reconstruction Amendments into a freestanding right of action to reme-
diate the violation of any federal statute, even those enacted beyond Con-
gress’ civil rights enforcement powers. Importantly, if statutory §1983
actions were confined to laws enacted under Congress’ Reconstruction
Amendments enforcement powers—under which Congress may directly
32 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
THOMAS, J., dissenting
The traditional understanding of both the spending
power and §1983 began slowly eroding in the 1950s, 1960s,
and 1970s, culminating in Thiboutot. On the spending-
power side, the Court held in Cannon v. University of Chi-
cago, 441 U. S. 677 (1979), that the spending conditions of
Title IX of the Education Amendments created binding du-
ties on private universities, the violation of which could be
the ground of a federal lawsuit by a private party. In doing
so, the Court “simply ignored the crucial difference between
restraints accepted as conditions of funding, and restraints
imposed by virtue of a legislative power.” Engdahl, 52 S. D.
L. Rev., at 509. And, on the §1983 side, the Court had con-
sidered a number of suits against state officials for viola-
tions of the Social Security Act without analyzing their cog-
nizability under §1983. See Thiboutot, 448 U. S., at 6(collecting cases); id., at 26 (Powell, J., dissenting) (“Far
from being a long-accepted fact, purely statutory §1983 ac-
tions are an invention of the last 20 years”).
The stage was thus set for Thiboutot to discard nearly two
centuries of settled spending-power doctrine by holding
that federal spending conditions secure rights by law. Ig-
noring both the contractual nature of spending programs
and the enforcement-power-based understanding of §1983,
Thiboutot declared that “the plain language of the statute
undoubtedly embrace[d] respondents’ claim that [the State]
violated the Social Security Act.” Id., at 4 (majority opin-
ion). The centerpiece of the Court’s opinion was its impre-
cise framing of the relevant question: “whether the phrase
‘and laws,’ as used in §1983, means what it says, or whether
it should be limited to some subset of laws.” Ibid. After
framing the issue thus, the Court reasoned that nothing in
the legislative history compelled limiting the term “and
laws” to civil rights laws enacted under the Reconstruction
——————
regulate States—the commandeering framework might apply differ-
ently—or not at all.
Cite as: 599 U. S. ____ (2023) 33
THOMAS, J., dissenting
Amendments. See id., at 6–8.
But the Court’s opinion completely missed the deeper
conceptual question whether spending-power statutes can
ever impose obligations, and thus secure corresponding
rights, with the force of federal law.13 As explained at
length above, the limited nature of the spending power dic-
tates a negative answer. And, a contrary understanding
would transform the terms of federal-state agreements into
binding regulations of state entities by federal law—violat-
ing the constitutional prohibition against directly regulat-
ing or commandeering the States.
It took less than a year after Thiboutot for the Court to
realize the “ ‘constitutional difficulties’ with imposing af-
firmative obligations on the States pursuant to the spend-
ing power” and to take the first step toward ameliorating
the problems with Thiboutot. Pennhurst, 451 U. S., at 17,
n. 13. In Pennhurst, the Court held that a provision of the
Developmentally Disabled Assistance and Bill of Rights Act
(a conditional spending Act) could not be enforced against a
state entity under §1983. Id., at 18. The Court first held
that the provision could not be considered as enforcement
legislation under the Fourteenth Amendment. Id., at 16–
17.14 The Court then explained the fundamentally different
——————
13 In dissent, Justice Powell set out the textual and historical case for
interpreting §1983 to apply only to rights secured by laws enacted under
Congress’ enforcement powers. Thiboutot, 448 U. S., at 11; see also
Chapman v. Houston Welfare Rights Organization, 441 U. S. 600, 623
(1979) (Powell, J., concurring). However, neither the Court, the parties,
nor the dissent examined whether, even if they were considered “laws”
for §1983 purposes, spending-power provisions could “secure” rights.
14 The court below had recognized but avoided the spending-power
question by holding that Congress enacted the legislation at issue pur-
suant to its power to enforce the Fourteenth Amendment. See Halder-
man v. Pennhurst State School and Hospital, 612 F. 2d 84, 98 (CA3 1979)
(“[W]e are not dealing with the implication of a private cause of action
from a congressional enactment justified only by the spending power of
the federal government, and we need not address the question whether
such a statute could ever provide the predicate for private substantive
34 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
THOMAS, J., dissenting
natures of legislation under the Reconstruction Amend-
ments and “legislation enacted pursuant to the spending
power,” the latter of which “is much in the nature of a con-
tract: in return for federal funds, the States agree to comply
with federally imposed conditions.” Id., at 17. Consistent
with the traditional position, the Court also explained that
“[i]n legislation enacted pursuant to the spending power,
the typical remedy for state noncompliance with federally
imposed conditions is not a private cause of action for non-
compliance but rather action by the Federal Government to
terminate the funds to the State.” Id., at 28. Ultimately,
because the Pennhurst Court determined that the provision
at issue was not intended to secure rights by imposing obli-
gations on States, see id., at 22–27, it did not need to con-
front the constitutional problem created by Thiboutot.
Nonetheless, Pennhurst both recognized the problem and
pointed to the solution—a return to the traditional contrac-
tual understanding that itself flows naturally from the lim-
ited nature of Congress’ spending authority.
Without that understanding, however, it is unavoidable
that spending conditions that impose substantive obliga-
tions on the States with the force of federal law are uncon-
stitutional.15 As shown above, the federal spending power
——————
rights. . . . Congress may, under section 5 [of the Fourteenth Amend-
ment], establish certain restrictions that might otherwise implicate the
prerogatives of the states”). The petitioners in Pennhurst squarely rec-
ognized that, if the legislation at issue was predicated on the spending
power alone, “Congress exceeded the limits of that power.” Brief for Pe-
titioners, O.T. 1980, No. 79–1404, etc., p. 36, n. 57.
15 Many litigants have recognized the constitutional problems. See,
e.g., Brief for Petitioner in Gonzaga Univ. v. Doe, O. T. 2001, No. 01–679,
p. 42, n. 14 (“Nor is it clear that the conditions in Spending Clause legis-
lation qualify as ‘laws’ under §1983. Such conditions only become oper-
ative when the contract is accepted by a recipient; it is the resulting con-
tract, not the federal legislation itself, that gives rise to obligations and
allegedly enforceable rights”); Brief for Petitioner in National Collegiate
Athletic Assn. v. Smith, O. T. 1998, No. 98–84, p. 3; Brief for United
States as Amicus Curiae in Suter v. Artist M., O. T. 1991, No. 90–1488,
Cite as: 599 U. S. ____ (2023) 35
THOMAS, J., dissenting
is nothing more than the power to spend. It neither con-
tains nor implies any sovereign regulatory power to legis-
late rights and duties with the force of federal law, and the
regulated party’s consent cannot change that conclusion.
The contractual nature of the spending power was essential
to the Government’s defense and this Court’s approval of
far-reaching spending programs; the programs survived
only with that traditional understanding as a premise.16
The Federal Government and private litigants cannot now
discard that understanding to argue that such programs
impose obligations directly on the States that are enforcea-
ble against state and local officials under §1983, without
running headlong into the anticommandeering doctrine
and long-recognized limitations on the federal spending
power.
* * *
By holding that FNHRA creates rights enforceable under
§1983, the majority creates a grave constitutional problem
that cannot be brushed away with a mere incantation of
Thiboutot. As explained above, spending-power legislation
cannot “secure” rights “by law.” Conditions on a State’s re-
ceipt of federal funds are effective, not by virtue of federal
law, but by dint of a federal-state agreement. The very con-
stitutionality of such conditions depends on their eschewal
of securing rights and imposing concomitant obligations on
——————
p. 12, n. 6.
16 Ironically, decades after it expressly disclaimed the pre-emptive ef-
fect of spending conditions in defending their constitutionality, see su-
pra, at 26–28, the Federal Government argued the exact opposite in Gon-
zaga: “The Act of Congress establishing the program remains binding
law with the full force and preemptive authority of federal legislation
under the Supremacy Clause, and thus falls squarely within the ‘laws’
covered by Section 1983 and is fully capable of ‘secur[ing]’ rights.” Brief
for United States as Amicus Curiae in No. 01–679, p. 19 (alteration in
original). With this reversal, the Government unwittingly argued that
spending conditions are unconstitutional.
36 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
THOMAS, J., dissenting
States.
The line from Mellon and Butler, to Thiboutot, to this case
amounts to a constitutional bait and switch that cannot
continue to be glossed over or ignored. In holding that
spending conditions are not merely contractual, but can di-
rectly impose obligations on the States with the force of fed-
eral law, the Court unravels the very rationale for their con-
stitutionality. Either conditions in statutes enacted under
the spending power are in the nature of contract terms and
do not secure rights by federal law, or they are unconstitu-
tional because they exceed the spending power and illicitly
commandeer the States. The consequence of the majority’s
rejection of the contractual understanding is not that
spending conditions are enforceable under §1983. Rather,
it is that they are unconstitutional. It is well past time for
this Court to re-examine Thiboutot and the nature of Con-
gress’ spending power.
Cite as: 599 U. S. ____ (2023) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 21–806
_________________
HEALTH AND HOSPITAL CORPORATION OF MARION
COUNTY, ET AL., PETITIONERS v. IVANKA TALEVSKI,
AS PERSONAL REPRESENTATIVE OF THE ESTATE
OF GORGI TALEVSKI, DECEASED
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SEVENTH CIRCUIT
[June 8, 2023]
JUSTICE ALITO, with whom JUSTICE THOMAS joins, dis-
senting.
I agree with the Court’s understanding of the high bar
required to bring an action under 42 U. S. C. §1983 for the
violation of a federal statute, but I disagree with how that
standard applies in this case. In my view, while respondent
has established that the Federal Nursing Home Reform Act
(FNHRA) creates individual rights, petitioners have estab-
lished that relief for the violation of those rights under
§1983 is foreclosed by the remedial scheme in the Act.
I
The majority and JUSTICE BARRETT correctly identify the
plaintiff ’s burden under §1983: a statute “must unambigu-
ously confer individual federal rights” to create “rights”
within the meaning of §1983, and “Gonzaga sets forth our
established method for ascertaining unambiguous confer-
ral.” Ante, at 11, 14 (majority opinion); see ante, at 1–2
(BARRETT, J., concurring); Gonzaga Univ. v. Doe, 536 U. S.
273 (2002). In other words, “if Congress wishes to create
new rights enforceable under §1983, it must do so in clear
and unambiguous terms.” Id., at 290. Because the stand-
ard demands “no less and no more than what is required for
2 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
ALITO, J., dissenting
Congress to create new rights enforceable under an implied
private right of action,” I also agree that there is no room
for “a multifactor balancing test to pick and choose which
federal requirements may be enforced by §1983 and which
may not.” Id., at 286, 290 (emphasis added) (rejecting the
standard articulated in Blessing v. Freestone, 520 U. S. 329,
340–341 (1997)). None of this is new ground. We have pre-
viously held that Gonzaga “plainly repudiate[s] the ready
implication of a §1983 action that” our earlier decisions “ex-
emplified.” Armstrong v. Exceptional Child Center, Inc.,
575 U. S. 320, 330, n. (2015).
The two FNHRA provisions that respondent invokes
demonstrate what it takes to satisfy this demanding stand-
ard. First, the Act mandates that a “nursing facility must
protect and promote the rights of each resident, including
. . . [t]he right to be free from . . . chemical restraints im-
posed for purposes of discipline or convenience and not re-
quired to treat medical symptoms.” 42 U. S. C.
§1396r(c)(1)(A). Second, the Act protects “[t]ransfer and
discharge rights,” precluding a “nursing facility” from
transferring or discharging “each resident” except in cer-
tain circumstances. §1396r(c)(2)(A) (boldface deleted).
Both of these provisions explicitly use the term “rights” to
describe discrete and concrete duties that a defined party
(“nursing facility”) owes to a particular individual (“each
resident”). When these features are taken together, they
satisfy the standard for determining whether a personal
right exists. See Gonzaga, 536 U. S., at 285–286; Alexander
v. Sandoval, 532 U. S. 275, 288–289 (2001).
II
A
When determining whether individual rights are enforce-
able under §1983, I again see much common ground with
the majority and agree entirely with JUSTICE Barrett’s ex-
planation of the governing standard. That question “boils
Cite as: 599 U. S. ____ (2023) 3
ALITO, J., dissenting
down to what Congress intended, as divined from text and
context.” Ante, at 18 (majority opinion). Notably, we have
explicitly held that this standard does not demand anything
close to the level of incompatibility required to trigger im-
plied repeal. See Rancho Palos Verdes v. Abrams, 544 U. S.
113, 120, and n. 2 (2005); see ante, at 2 (opinion of BARRETT,
J.). Instead, the question is simply “whether the rights cre-
ated by a later statute ‘may be asserted within the remedial
framework’ of the earlier one.” Rancho Palos Verdes, 544
U. S., at 120, n. 2; see Great American Fed. Sav. & Loan
Assn. v. Novotny, 442 U. S. 366, 375–378 (1979). As the ma-
jority explains, §1983 does not apply where Congress has
created an individual right but also “simultaneously given
good reason (detectable with ordinary interpretive tools) to
conclude that the §1983 remedy is not available.” Ante, at
17, n. 13; see, e.g., Armstrong, 575 U. S., at 328 (presump-
tion of equitable remedies rebutted by administrative rem-
edies and statutory requirements).
Finally, I agree that there is no bright-line rule for when
a statute evidences an intent to preclude §1983 relief. See
Rancho Palos Verdes, 544 U. S., at 122; ante, at 19–21 (ma-
jority opinion); ante, at 3–4 (opinion of BARRETT, J.). Courts
should consider a “wide range of contextual clues, like ‘en-
forcement provisions’ ” that government officials can invoke
and “any ‘administrative remedies that the statute offers.’ ”
Ante, at 3 (opinion of BARRETT, J.). Whatever the context,
the “more comprehensive the [enforcement] scheme” in a
statute, “the less likely that it leaves the door open for
§1983 suits.” Ibid. After all, when a statute “ ‘provides its
own comprehensive enforcement scheme, the requirements
of that enforcement procedure may not be bypassed by
bringing suit directly under §1983.’ ” Middlesex County
Sewerage Authority v. National Sea Clammers Assn., 453
U. S. 1, 20 (1981).
4 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
ALITO, J., dissenting
B
When all is said and done, my disagreement with the ma-
jority is thus narrowly focused on how this standard applies
to this case. In my view, FNHRA “foreclose[s] a private
cause of action” even though it “admittedly create[s] sub-
stantive private rights.” Alexander, 532 U. S., at 290. The
Act creates a reticulated remedial regime that both bal-
ances federal and state enforcement and channels disputes
through that regime. Allowing §1983 suits will upend this
careful balance.
Consider the remedial provisions that the Act provides.
When federal officials find that a nursing home does not
comply with FNHRA, the Act enumerates certain limited
remedies they can pursue, such as withdrawing federal
funding and imposing civil penalties “in an amount not to
exceed $10,000 for each day of noncompliance.”
§1396r(h)(3)(C). FNHRA obligates States to establish cer-
tain remedies for noncompliance (including civil penalties),
but otherwise leaves them free to “specify criteria, as to
when and how each of [the required] remedies is to be ap-
plied, the amounts of any fines, and the severity of each of
these remedies, to be used in the imposition of such reme-
dies.” §1396r(h)(2)(A). It also empowers States to “provide
for other . . . remedies” as they see fit. Ibid. Finally, the
Act provides “[s]pecial rules where [s]tate and [federal offi-
cials] do not agree on [a] finding of noncompliance.”
§1396r(h)(6) (boldface deleted).
By specifying limited remedies for federal authorities and
tasking States with otherwise determining the conse-
quences for violations, the Act creates a clear division of au-
thority that ensures States retain their historical control
over nursing-home regulation. Allowing §1983 suits will
upset this balance by allowing any plaintiff to demand dam-
ages regardless of the remedial regime that States establish
pursuant to their explicit authority under the Act. Moreo-
ver, whenever a plaintiff files suit, the determination about
Cite as: 599 U. S. ____ (2023) 5
ALITO, J., dissenting
noncompliance will be taken away from federal and state
authorities and given to courts. And because the remedies
offered under §1983 will often dwarf the relief available un-
der FNHRA’s reticulated balance of remedies, §1983 will
swallow the centralized state and federal review mecha-
nisms the Act imposes.
The exclusivity of FNHRA’s enforcement regime is
buttressed by the grievance remedy FNHRA gives to
nursing-home residents. Residents have the “[r]ight to
voice grievances with respect to treatment or care” and “the
right to prompt efforts by the facility to resolve grievances.”
§1396r(c)(1)(A)(vi). States, in turn, are obligated to “inves-
tigate complaints of violations of requirements by nursing
facilities” and to take enforcement actions to correct those
violations. §§1396r(g)(4), (h)(1); see also 42 CFR §483.10(j)
(2021) (obligating States to provide a “grievance process”
that includes a “written decision” in response to complaints
that provides a full summary of findings, conclusions, and
reasoning).
This grievance process dovetails neatly with FNHRA’s
centralized enforcement regime because it funnels private
complaints to the same state authorities that the Act tasks
with enforcement. Indeed, respondent in this case wielded
FNHRA’s grievance process to obtain relief for both of the
rights petitioners allegedly violated. See App. to Pet. for
Cert. 79a–80a. But because FNHRA’s remedies are more
limited than the direct judicial highway that §1983 offers,
it is hard to see why anyone would use them in the future.
See Rancho Palos Verdes, 544 U. S., at 122–123.
The only textual evidence the majority can identify in re-
sponse to this tailored remedial framework is FNHRA’s
saving clause, which states that the Act’s remedies “are in
addition to those otherwise available under State or Fed-
eral law.” §1396r(h)(8). But this provision only begs the
question whether relief under §1983 is “otherwise availa-
6 HEALTH AND HOSPITAL CORPORATION OF MARION
CTY. v. TALEVSKI
ALITO, J., dissenting
ble.” We have recognized as much when holding that a ma-
terially identical saving clause did not authorize implied
remedies under a separate remedial provision. See AMG
Capital Management, LLC v. FTC, 593 U. S. ___, ___–___
(2021) (slip op., at 12–13). And in the §1983 context, we
have similarly held that saving clauses do “not ‘refer to a
suit for redress of a violation of the statut[e] at issue.’ ” Ran-
cho Palos Verdes, 544 U. S., at 126–127 (alterations omit-
ted); accord, Sea Clammers, 453 U. S., at 20–21, n. 31.
These results are understandable. There is a considerable
difference between preserving existing remedies for con-
duct that happens to violate other laws and providing a one-
stop remedy for the precise provisions in a statute. See Al-
exander, 532 U. S., at 289–290. The latter interpretation
runs against a century of holdings that a statute “ ‘cannot
be held to destroy itself’ ” through a saving clause. Ameri-
can Telephone & Telegraph Co. v. Central Office Telephone,
Inc., 524 U. S. 214, 227–228 (1998) (quoting Texas & Pacific
R. Co. v. Abilene Cotton Oil Co., 204 U. S. 426, 446 (1907)).
Conversely, concluding that FNHRA “may be enforced only
through the statute’s express remed[ies]” gives full effect to
§1396r(h)(8) because “the claims available under §1983
prior to the enactment of the [Act] continue to be available.”
Rancho Palos Verdes, 544 U. S., at 126.
In short, “[a]llowing a plaintiff to circumvent [FNHRA’s]
administrative remedies would be inconsistent with Con-
gress’ carefully tailored scheme.” Smith v. Robinson, 468
U. S. 992, 1012 (1984). I would thus hold that the Act pre-
cludes enforcement under §1983 and reverse the judgment
below. I therefore respectfully dissent.