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 Chicago, 441 U. S. 677 (1979), that the spending conditions of Title IX of the Education Amendments created binding duties on private universities, the violation of which could be the ground of a federal lawsuit by a private party. In doing so, the Court “simply ignored the crucial difference between restraints accepted as conditions of funding, and restraints imposed by virtue of a legislative power.” Engdahl, 52 S. D. L. Rev., at 509. And, on the §1983 side, the Court had considered a number of suits against state officials for violations of the Social Security Act without analyzing their cognizability under §1983. See Thiboutot, 448 U. S., at 6 (collecting cases); id., at 26 (Powell, J., dissenting) (“Far from being a long-accepted fact, purely statutory §1983 actions are an invention of the last 20 years”).
The stage was thus set for Thiboutot to discard nearly two
centuries of settled spending-power doctrine by holding that federal spending conditions secure rights by law. Ignoring both the contractual nature of spending programs and the enforcement-power-based understanding of §1983, Thiboutot declared that “the plain language of the statute undoubtedly embrace[d] respondents’ claim that [the State] violated the Social Security Act.” Id., at 4 (majority opinion). The centerpiece of the Court’s opinion was its imprecise framing of the relevant question: “whether the phrase ‘and laws,’ as used in §1983, means what it says, or whether it should be limited to some subset of laws.” Ibid. After framing the issue thus, the Court reasoned that nothing in the legislative history compelled limiting the term “and laws” to civil rights laws enacted under the Reconstruction
regulate States—the commandeering framework might apply differently—or not at all.
