Thomas, J., dissenting
Congress’ regulatory powers. Rather, as the Court observed in Pennhurst State School and Hospital v. Halderman, 451 U. S. 1 (1981), “legislation enacted pursuant to the spending power is much in the nature of a contract.” Id., at 17. A federal statute imposing conditions upon the receipt of federal funding does not enact those conditions with “the obligation of law”; it merely “proposes them as the terms of a contractual promise.” Hamburger 132. Such spending provisions “merely stipulate what the government expects from recipients if it is to pay them or, later, not withhold further payment and demand its money back.” Ibid. Thus, “even when fully recited in statutes, federal conditions do not come with legal obligation.” Ibid.
Further, and as already noted, the conditions in spending legislation only come into force upon the acceptance of another party. Such conditions are thus “obligatory only by virtue of such agreement and not by force of law.” D. Engdahl, The Spending Power, 44 Duke L. J. 1, 104 (1994). To be sure, “it is a statute that prescribes the funding condition and requires denial of federal assistance if the funding condition is not agreed to.” Ibid. But, “only the agreement—and not the statute—makes the terms obligatory on the funds recipient and thus ‘secures’ the contemplated third-party rights.” Ibid.[1] Accordingly, such “third-party rights
- ↑ 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
