Dennis v. Higgins/Dissent Kennedy

Justice KENNEDY, with whom The Chief Justice joins, dissenting.

In Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 114, 110 S.Ct. 444,, 107 L.Ed.2d 420 (1990), I dissented from the Court's determination that 42 U.S.C. § 1983 creates a cause of action for damages when the only wrong committed by the State or local entity is its misapprehension of the boundary between state and federal power. Today's decision compounds the error of Golden State. The majority drifts far from the purposes and history of § 1983 and again holds § 1983 applicable to a State's quite innocent but mistaken judgment respecting the shifting boundary between two sovereign powers. The majority removes one of the statute's few remaining limits and increases the burden that a state or local government will face in defending its economic regulation and taxation. With respect, I dissent.

* The majority must acknowledge, under even Golden State, that not all violations of federal law give rise to a § 1983 action. The plaintiff must assert "rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983. The majority appears to base its decision upon three grounds. First, the "ordinary meaning" of the term "right" as confirmed by Black's Law Dictionary indicates that the Commerce Clause provides petitioner a right. Ante, at 447, and n. 7. Second, our cases contain scattered references to a "right" to engage in interstate commerce. Ante, at 448. And third, the Commerce Clause purportedly meets Golden State's test to determine whether a statutory violation gives rise to a § 1983 cause of action, because the Commerce Clause was intended to benefit those who engage in interstate commerce. Ante, at 448. The majority errs, I must submit, when it ignores what the sponsors of § 1983 told us about the scope of the phrase "rights, privileges or immunities secured by the Constitution," and errs further when it applies the Golden State test in this context. Even were I to apply the majority's various tests, moreover, I would reach the opposite conclusion.

The Golden State test, arguably necessary in assessing whether any of the hundreds of statutory provisions that confer express obligations upon the States secure rights within the meaning of § 1983, is not appropriate in this case, where the question is whether a right is secured by a provision of the Constitution. Constitutional provisions are not so numerous, nor enacted with such frequency, that we are compelled to apply an ahistorical test. There is a ready alternative. We can distinguish between those constitutional provisions which secure the rights of persons vis-a-vis the States, and those provisions which allocate power between the Federal and State Governments. The former secure rights within the meaning of § 1983, but the latter do not.

The Commerce Clause, found at Art. I, § 8, cl. 3, of the Constitution, is a grant of power to Congress. It states simply that "[t]he Congress shall have Power . . . To regulate commerce . . . among the several States." By its own terms as well as its design, as interpreted by this Court, the Commerce Clause is a structural provision allocating authority between federal and state sovereignties. It does not purport to secure rights. The history leading to the drafting and ratification of the Constitution confirms these premises.

The lack of a national power over commerce during the Articles of Confederation led to ongoing disputes among the States, and the prospect of a descent toward even more intense commercial animosity was one of the principal arguments in favor of the Constitution. See, e.g., The Federalist No. 7, pp. 62-63 (C. Rossiter ed. 1961) (A. Hamilton); id., No. 11, pp. 89-90 (A. Hamilton);  id., No. 22, pp. 143-145 (A. Hamilton);  id., No. 42, pp. 267-269 (J. Madison);  id., No. 53, p. 333 (J. Madison).

"The sole purpose for which Virginia initiated the movement     which ultimately produced the Constitution was 'to take into      consideration the trade of the United States;  to examine the      relative situations and trade of the said States;  to      consider how far a uniform system in their commercial      regulations may be necessary to their common interest and      their permanent harmony.' "  H.P. Hood & Sons, Inc. v. Du      Mond, 336 U.S. 525, 533, 69 S.Ct. 657, 663, 93 L.Ed. 865     (1949) (citation omitted).

The Framers intended the Commerce Clause as a way to preserve economic union and to suppress interstate rivalry. The Clause assigned prerogatives to the general government, not personal rights to those who engaged in commerce. See, e.g., id., at 533-535, 69 S.Ct., at 662-664; Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523, 55 S.Ct. 497, 500, 79 L.Ed. 1032 (1935); Collins, Economic Union as a Constitutional Value, 63 N.Y.U.L.Rev. 43, 51-56 (1988). "The necessity of centralized regulation of commerce among the states was so obvious and so fully recognized that the few words of the Commerce Clause were little illuminated by debate." Hood & Sons, Inc., supra, 336 U.S., at 534, 69 S.Ct., at 663. An exhaustive examination of the debates reports only nine references to interstate commerce in the records of the Convention, all directed at the dangers of interstate rivalry and retaliation. See Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn.L.Rev. 432, 470-471, and nn. 169-175 (1941). It is not for serious dispute that the Framers of the Commerce Clause had economic union as their goal, nor that their deliberations are devoid of any evidence of intent to secure personal rights under this Clause.

Section 1983 has its origins in § 2 of the Civil Rights Act of 1866, 14 Stat. 27, and § 1 of the Civil Rights Act of 1871, 17 Stat. 13. See Lynch v. Household Finance Corp., 405 U.S. 538, 543, n. 7, 92 S.Ct. 1113, 1118, n. 7, 31 L.Ed.2d 424 (1972). Until recent cases, we have placed great reliance upon the sponsors of the 1871 Act in interpreting the scope of § 1983. See, e.g., Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, 98 S.Ct. 2018, 2035, 56 L.Ed.2d 611 (1978) ("[A]nalysis of the legislative history of the Civil Rights Act of 1871 compels the conclusion that Congress did intend municipalities . . . to be included among those persons to whom § 1983 applies" (emphasis in original)); Lynch, supra, 405 U.S., at 545-546, 92 S.Ct., at 1118-1119 (sponsors intended § 1983 to protect property rights as well as personal rights);  Monroe v. Pape, 365 U.S. 167, 172-185, 81 S.Ct. 473, 476-483, 5 L.Ed.2d 492 (1961) (legislative history of § 1983 supports the conclusion that § 1983 plaintiff need not exhaust state remedies).

Those same sponsors of § 1983 understood and announced a distinction between power-allocating and rights-securing provisions of the Constitution. In discussing the meaning of the phrase "rights, privileges or immunities" in the original House version of § 2 of the 1871 Act, Representative Shellabarger, Chairman of the House Select Committee which drafted the Act, and floor manager for the bill, explained: "Most of the provisions of the Constitution which restrain     and directly relate to the States, such as those in tenth      section of first article, that 'no State shall make a      treaty,' 'grant letters of marque,' 'coin money,' 'emit bills      of credit,' & c., relate to the divisions of the political      powers of the State and General Governments.  They do not      relate directly to the rights of persons within the States      and as between the States and such persons therein.  These      prohibitions upon the political powers of the States are all      of such nature that they can be, and even have been, when the      occasion arose, enforced by the courts of the United States      declaring void all State acts of encroachment on Federal      powers. Thus, and thus sufficiently, has the United States     'enforced' these provisions of the Constitution. But there     are some that are not of this class. These are where the     court secures the rights or the liabilities of persons within      the States, as between such persons and the States.

"These three are: first, that as to fugitives from      Justice;  second, that as to fugitives from service, (or      slaves;)  third, that declaring that the 'citizens of each      State shall be entitled to all the privileges and immunities      of citizens in the several States.' "  Cong.Globe, 42d Cong.,      1st Sess., App. 69-70 (1871) (hereinafter Cong.Globe)     (referring to Art. IV, § 2, of the Constitution as securing      rights of persons).

This passage confirms Representative Shellabarger's view that all but three provisions of the Constitution as first enacted allocate power rather than secure the rights of persons "as between such persons and the States," and that the power-allocating provisions had not been "enforced" by legislation, but instead could be asserted as grounds for invalidating state action. Ibid. To those original provisions which secure rights of persons with respect to States, and within the meaning of § 1983, the sponsors of § 1983 added the constitutional guarantees contained in the Civil War Amendments, including the provisions of the Bill of Rights incorporated into the Fourteenth Amendment. Every specific mention of rights secured by the 1871 Act refers to these constitutional provisions. See, e.g., Cong.Globe 475-476 (Rep. Dawes; privileges and immunities, Bill of Rights);  id., at App. 84-85 (Rep. Bingham; equal protection, first eight Amendments);  id., at App. 153 (Rep. Garfield; right to vote, privileges and immunities, equal protection).

Statements of other supporters of the 1871 Act provide further evidence that Congress did not consider the Commerce Clause to secure the rights of persons within the meaning of § 1983. Representative Hoar distinguished between two objectives of the Constitution: to "provide . . . for the protection and regulation of commercial intercourse, domestic and foreign";  and to "promote the general welfare by prohibiting the States from doing what is inconsistent with civil liberty, and compelling them to do what is essential to its maintenance." Cong.Globe 333. The 1871 Act was designed to enforce only those provisions of the Constitution providing for "the protection of personal liberty and civil rights," not "the protection of commerce." Ibid. Representative Trumbull made the same distinction between these categories of constitutional provisions. Id., at 575. The sponsors of § 1983 thus gave us a straightforward answer to the question of which constitutional violations give rise to a § 1983 action, and told us that violations of power-allocating provisions such as the Commerce Clause do not.

Not only did the 42d Congress understand the difference between rights-securing and power-allocating provisions of the Constitution, but this Court's decisions of more than 100 years support the distinction. All previous cases in which this Court has determined (or assumed) that a constitutional violation gives rise to a § 1983 cause of action alleged violations of rights-securing provisions of the Constitution, not power-allocating provisions. See, e.g., Monroe v. Pape, 365 U.S., at 171, 81 S.Ct., at 475 ("Allegation of facts constituting a deprivation under color of state authority of a right guaranteed by the Fourteenth Amendment satisfies to that extent the requirement of R.S. § 1979 [§ 1983]"); Lane v. Wilson, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281 (1939) (Fifteenth Amendment violation supports § 1983 cause of action).

In our only previous case discussing a § 1983 claim brought for the violation of a supposed right secured by Article I of the Constitution, we held that violation of the Contracts Clause does not give rise to a § 1983 cause of action. Carter v. Greenhow, 114 U.S. 317, 5 S.Ct. 928, 29 L.Ed. 202 (1885). As is true of the Commerce Clause, the Court held that the Contracts Clause can be said to secure individual rights "only indirectly and incidentally." Id., at 322, 5 S.Ct., at 930. The Court further explained that the only right secured by the Contracts Clause is the "right to have a judicial determination, declaring the nullity of the attempt to impair [a State's] obligation." Ibid.

The Contracts Clause of Art. I, § 10, provides that "[n]o State shall . . . pass any . . . Law impairing the Obligation of Contracts." At least such language would provide some support for an argument that the Contracts Clause prohibits States from "doing what is inconsistent with civil liberty." Cong.Globe 333 (Rep. Hoar). If the Contracts Clause, an express limitation upon States' ability to impair the contractual rights of citizens, does not secure rights within the meaning of § 1983, it assuredly demands a great leap for the majority to conclude that the Commerce Clause secures the rights of persons. The Commerce Clause is, if anything, a less obvious source of rights for purposes of § 1983, as its text only implies a limitation upon state power.

At best, all that can be said is that the Commerce Clause grants Congress the power to regulate interstate commerce; from this grant of power, the Court has implied a limitation upon the power of a State to regulate interstate commerce;  and in turn, courts provide a person injured by taxation that exceeds the limits of the Commerce Clause the "right to have a judicial determination, declaring the nullity of the attempt to" levy a discriminatory tax. Carter, supra, at 322, 5 S.Ct., at 930. I find it ironic that Carter draws a distinction of nearly the same character as Golden State, between provisions which directly secure rights and those which do so "only as an incident" of their purpose. Golden State, 493 U.S., at 109, 110 S.Ct., at 450. Yet, the majority finds that the Commerce Clause was "intended to benefit the putative plaintiff," Golden State, supra, at 108, 110 S.Ct., at 449, while Carter held that the Contracts Clause only provides incidental benefits.

In Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), we rejected an attempt to limit § 1983 to personal rights as opposed to property rights, in that case a deprivation of property in violation of the Due Process Clause of the Fourteenth Amendment. The legislative history of § 1983 did not support such a distinction, and we recognized both its false nature and the impossibility of its application. Today, on the other hand, the Court rejects a distinction which finds strong support in the legislative history of § 1983 and would bring no difficulties of application. I see no good reason for this rejection and suggest that the Court's decision only can do mischief. B

The majority rejects the weight of historical evidence in favor of scattered statements in our cases that refer to a "right" to engage in interstate commerce. Ante, at. None of these cases, however, hold that the Commerce Clause secures a personal right. Instead, they interpret the Commerce Clause as allocating power among sovereigns. See Crutcher v. Kentucky, 141 U.S. 47, 57, 11 S.Ct. 851, 853, 35 L.Ed. 649 (1891) (regulation of interstate commerce "not within the province of state legislation, but within that of national legislation"); Western Union Telegraph Co. v. Kansas, 216 U.S. 1, 21, 30 S.Ct. 190, 194, 54 L.Ed. 355 (1910) (same). If the majority chooses to rely upon such statements, far removed from the issue at hand, I would remind it that this Court, in a much closer context, has established that a case in which the plaintiff relies upon the dormant Commerce Clause "may be one arising under the Constitution, within the meaning of that term, as used in other statutes, but it is not one brought on account of the deprivation of a right, privilege or immunity secured by the Constitution." Bowman v. Chicago & Northwestern R. Co., 115 U.S. 611, 615-616, 6 S.Ct. 192, 194, 29 L.Ed. 502 (1885). The statements upon which the majority relies are weak support for its conclusion.

In similar fashion, McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Fla., 496 U.S. 18, 110 S.Ct. 2238, 110 L.Ed.2d 17 (1990), in which the majority finds recent support for its view of the Commerce Clause, merely applies our traditional due process analysis for deprivation of property to the context of exaction of an unlawful tax. McKesson Corp. holds that if a State insists that taxpayers pay first and obtain review of a tax's validity in a later refund action, then due process requires meaningful postpayment relief for taxes paid pursuant to an unconstitutional scheme. Id., at 31, 110 S.Ct., at 2247. In discussing the nature of the constitutional violation, McKesson Corp. acknowledges that States are accorded great flexibility in structuring the remedy for a discriminatory tax that violates the Commerce Clause. Rather than refunding the tax, "to the extent consistent with other constitutional restrictions, the State may assess and collect back taxes from petitioner's competitors who benefited from the [discriminatory] rate reductions during the contested tax period." Id., at 40, 110 S.Ct., at 2252. If the State refused to provide any remedy, then the taxpayer would arguably have a § 1983 claim, but that claim would be for a deprivation of property without due process of law, a violation of the Fourteenth Amendment, not of the Commerce Clause. McKesson Corp. in no way supports the existence of a § 1983 cause of action for Commerce Clause violations.

Finally, following Golden State, the majority asks whether the provision in question was intended to benefit the putative plaintiff. Ante, at 449. The majority fails to locate in the text or history of the Commerce Clause any such intent, but nevertheless concludes that any argument to the contrary was "implicitly rejected in Boston Stock Exchange [v. State Tax Comm'n, 429 U.S.,] at 321, n. 3 [97 S.Ct., at 603, n. 3], where we found that the plaintiffs were arguably within the 'zone of interests' protected by the Commerce Clause." Ante, at 449. I fail to see how a determination that a particular plaintiff is within the "zone of interests" protected by a provision requires a finding that the provision was intended to benefit that plaintiff, or secures a right for purposes of § 1983. To the contrary, our zone of interest cases have rejected any requirement that there be a "congressional purpose to benefit the would-be plaintiff." Clarke v. Securities Industry Assn., 479 U.S. 388, 399-400, 107 S.Ct. 750, 757, 93 L.Ed.2d 757 (1987). The plaintiff need only demonstrate a "plausible relationship" between his interest and the policies to be advanced by the relevant provision. Id., at 403, 107 S.Ct. at 759.

The majority's treatment of the question confuses the concept of standing with that of a cause of action. We have considered these as distinct categories, and should continue to do so. See Davis v. Passman, 442 U.S. 228, 239-240, n. 18, 99 S.Ct. 2264, 2274, n. 18, 60 L.Ed.2d 846 (1979). A taxpayer such as petitioner may be arguably within the zone of interests protected by the Commerce Clause. This is not, however, sufficient to demonstrate that the Commerce Clause secures a right of petitioner within the meaning of § 1983. Thus, in INS v. Chadha, 462 U.S. 919, 935-936, 103 S.Ct. 2764, 2776, 77 L.Ed.2d 317 (1983), we held that an individual had standing to raise a separation of powers challenge alleging a violation of the Presentment Clauses, Art. I, § 7, cls. 2 and 3. In a very fundamental sense, separation of powers is designed to secure individual liberty. Yet, we would not say that the Presentment Clauses secure personal rights. Rather, Chadha was able to assert the interests of the other branches of Government because he met our traditional test of standing.

I cannot doubt the truth of the statement, ante, at 449-450 (quoting H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S., at 539, 69 S.Ct., at 665), that the Commerce Clause benefits individuals and entities engaged in interstate commerce. Nor do I question the importance of our dormant Commerce Clause jurisprudence in guaranteeing a single, national market. Benefits to those engaged in commerce, however, are incidental to the purpose of the Commerce Clause; they are but evidence of its sound application. That the Commerce Clause benefits individual traders or consumers does not satisfy the majority's test that a provision must have been intended for the benefit of a particular plaintiff; nor do such benefits prove that the provision secures a plaintiff's constitutional right to engage in any one activity, to receive any direct benefit, or to avoid any specific detriment. Rather, the Commerce Clause "benefits particular parties only as an incident of" its allocation of power between Federal and State sovereignties. Golden State, 493 U.S., at 109, 110 S.Ct., at 450.

I continue to draw the distinction made in my Golden State dissent, id., at 113, 110 S.Ct., at 452, and would hold that while the dormant Commerce Clause does not secure a right, it gives rise to a legal interest in petitioner against taxation which violates the dormant Commerce Clause. Thus, petitioner can rely upon the unconstitutionality of the tax in defending a collection action brought by the State, or in pursuing state remedies. This ability to invoke the Commerce Clause against a State, however, is not equivalent to finding a secured right under § 1983. If that were so, all violations of federal law would give rise to a § 1983 cause of action, and there would be little reason to search for statements supporting the existence of a right to engage in interstate commerce or to apply the Golden State test. The majority does not purport to rest its decision upon such an all-inclusive view of § 1983, but that is the necessary consequence of its reasoning.

The Court's analysis demonstrates the poverty of the "intended to benefit" test in the constitutional context, for it shows that even structural provisions that benefit individuals incidentally come within its purview. The Court's logic extends far beyond the Commerce Clause, and creates a whole new class of § 1983 suits derived from Article I. For example, the Court's rationale creates a § 1983 cause of action when a State violates the constitutional doctrine of intergovernmental tax immunity, Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 813, 109 S.Ct. 1500, 1507, 103 L.Ed.2d 891 (1989) (violation of statute "coextensive with the prohibition against discriminatory taxes embodied in the modern constitutional doctrine of intergovernmental tax immunity"), interferes with the federal power over foreign relations, see Zschernig v. Miller, 389 U.S. 429, 88 S.Ct. 664, 19 L.Ed.2d 683 (1968), applies a duty upon imports in violation of Art. I, § 10, cl. 2, see Hooven & Allison Co. v. Evatt, 324 U.S. 652, 65 S.Ct. 870, 89 L.Ed. 1252 (1945), invades the federal power over regulation of the entrance and residence of aliens in violation of Art. I, § 8, cl. 4, see Hines v. Davidowitz, 312 U.S. 52, 66-67, 61 S.Ct. 399, 403-404, 85 L.Ed. 581 (1941), or attempts to tax income upon a federal obligation in derogation of Congress' Art. I, § 8, cl. 2, power to "borrow Money on the credit of the United States," see ''Missouri ex rel. Missouri Ins. Co. v. Gehner,'' 281 U.S. 313, 50 S.Ct. 326, 74 L.Ed. 870 (1930). There is no textual or other support for holding that § 1983 imposes such far-reaching liabilities upon the States.

Petitioner here does not complain that the State of Nebraska has failed to provide him an adequate forum in which to contest the validity of Nebraska's tax. Nebraska has done so. The Nebraska courts acknowledged the invalidity of the State's tax, enjoined its collection, and directed petitioner to file a refund claim for the taxes he had paid to the State. Rather, the significance of the Court's decision, in this and future Commerce Clause litigation, is that a § 1983 claim may permit dormant Commerce Clause plaintiffs to recover attorney's fees and expenses under 42 U.S.C. § 1988.

In the Civil Rights Attorney's Fees Awards Act of 1976, Pub.L. 94-559, 90 Stat. 2641, codified at 42 U.S.C. § 1988, Congress authorized the award of attorney's fees to prevailing parties in, inter alia, § 1983 litigation. The award of attorney's fees encourages vindication of federal rights which, Congress recognized, might otherwise go unenforced because of the plaintiffs' lack of resources and the small size of any expected monetary recovery. See S.Rep. No. 94-1011, p. 6 (1976), U.S.Code Cong. & Admin.News 1976, p. 5908. Congress was reassured that § 1988 would be "limited to cases arising under our civil rights laws, a category of cases in which attorneys fees have been traditionally regarded as appropriate." Id., at 4, U.S.Code Cong. & Admin.News 1976, p. 5912.

The significant economic interests at stake in dormant Commerce Clause cases, as well as the resources available to the typical dormant Commerce Clause plaintiff, make such concerns far removed from the realities of dormant Commerce Clause litigation. The pages of the United States Reports testify to the ability of major corporations and industry associations to commence and maintain dormant Commerce Clause litigation without receiving attorney's fee awards under § 1988. By making such fee awards available, the Court does not vindicate the purposes of § 1983 or § 1988, but merely shifts the balance of power away from the States and toward interstate businesses.

Today's decision raises far more questions about the proper conduct of challenges to the validity of state taxation than it answers. The Tax Injunction Act, 28 U.S.C. § 1341, prevents any attempt in federal court to "enjoin, suspend or restrain" assessment or collection of a state tax, so long as "a plain, speedy and efficient remedy may be had in the courts of such State." The principle of comity likewise prevents a federal court from entertaining any action for damages under § 1983 to redress allegedly unconstitutional state taxation. Fair Assessment in Real Estate Assn., Inc. v. McNary, 454 U.S. 100, 102 S.Ct. 177, 70 L.Ed.2d 271 (1981). Relying upon the "overriding interests of the state in an efficient, expeditious and nondisruptive resolution of . . . tax disputes," Backus v. Chilivis, 236 Ga. 500, 505, 224 S.E.2d 370, 374 (1976), state courts have refused to permit plaintiffs to proceed under § 1983 where there exists a complete remedy under state law. Ibid.; Spencer v. South Carolina Tax Comm'n, 281 S.C. 492, 497, 316 S.E.2d 386, 388-389 (1984), aff'd by an equally divided Court, 471 U.S. 82, 105 S.Ct. 1859, 85 L.Ed.2d 62 (1985) (per curiam). These questions now become of paramount importance, as we risk destruction of state fiscal integrity in a manner which may require congressional correction.

Today's opinion gives no hint of § 1983's character as an extraordinary remedy passed during Reconstruction to protect basic civil rights against oppressive state action. Section 1983 now becomes simply one more weapon in the litigant's arsenal, to be considered whenever the defendant is a state actor and its use is advantageous to the plaintiff. I dissent from the opinion and judgment of the Court.