Thomas, J., dissenting
is nothing more than the power to spend. It neither contains nor implies any sovereign regulatory power to legislate 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.[1] The Federal Government and private litigants cannot now discard that understanding to argue that such programs impose obligations directly on the States that are enforceable 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 receipt of federal funds are effective, not by virtue of federal law, but by dint of a federal-state agreement. The very constitutionality of such conditions depends on their eschewal of securing rights and imposing concomitant obligations on
- ↑ Ironically, decades after it expressly disclaimed the pre-emptive effect of spending conditions in defending their constitutionality, see supra, at 26–28, the Federal Government argued the exact opposite in Gonzaga: “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.
p. 12, n. 6.
