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.[1] As explained at length above, the limited nature of the spending power dictates a negative answer. And, a contrary understanding would transform the terms of federal-state agreements into binding regulations of state entities by federal law—violating the constitutional prohibition against directly regulating or commandeering the States.
It took less than a year after Thiboutot for the Court to realize the “ ‘constitutional difficulties’ with imposing affirmative obligations on the States pursuant to the spending 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.[2] The Court then explained the fundamentally different
- ↑ 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.
- ↑ The court below had recognized but avoided the spending-power question by holding that Congress enacted the legislation at issue pursuant to its power to enforce the Fourteenth Amendment. See Halderman 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
