Page:Health and Hospital Corp. of Marion Co. v. Talevski.pdf/33

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, dissenting.

I agree with that the Federal Nursing Home Reform Act (FNHRA) cannot be enforced through Rev. Stat. §1979, 42 U. S. C. §1983, under Gonzaga Univ. v. Doe, 536 U. S. 273 (2002). I write separately to highlight another and more fundamental reason why FNHRA cannot be enforced under §1983. Section 1983 provides a cause of action to redress only “the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” But legislation enacted pursuant to Congress’ spending power, like FNHRA, does not “secure” rights by “law.”

For nearly all of our Nation’s history, it was understood that there is a fundamental difference between the exercise of Congress’ sovereign legislative powers, on the one hand, and the exercise of its power to spend money and to attach conditions to the receipt of that money, on the other. Only the former sort of legislation, which imposes obligations on regulated parties with the force of law, directly secures by law the rights corresponding to those obligations. By contrast, an exercise of Congress’ spending power, whether it comes from the so-called Spending Clause or elsewhere in the Constitution, is no more than a disposition of funds. As