Thomas, J., dissenting
natures of legislation under the Reconstruction Amendments and “legislation enacted pursuant to the spending power,” the latter of which “is much in the nature of a contract: 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 noncompliance 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 obligations on States, see id., at 22–27, it did not need to confront the constitutional problem created by Thiboutot. Nonetheless, Pennhurst both recognized the problem and pointed to the solution—a return to the traditional contractual understanding that itself flows naturally from the limited nature of Congress’ spending authority.
Without that understanding, however, it is unavoidable that spending conditions that impose substantive obligations on the States with the force of federal law are unconstitutional.[1] As shown above, the federal spending power
- ↑ 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 legislation qualify as ‘laws’ under §1983. Such conditions only become operative when the contract is accepted by a recipient; it is the resulting contract, 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,
rights. … Congress may, under section 5 [of the Fourteenth Amendment], establish certain restrictions that might otherwise implicate the prerogatives of the states”). The petitioners in Pennhurst squarely recognized that, if the legislation at issue was predicated on the spending power alone, “Congress exceeded the limits of that power.” Brief for Petitioners, O.T. 1980, No. 79–1404, etc., p. 36, n. 57.
