Page:Health and Hospital Corp. of Marion Co. v. Talevski.pdf/34

2 such, a conditional exercise of the spending power is nothing more than a contractual offer; any “rights” that may flow from that offer are “secured” only by the offeree’s acceptance and implementation, not federal law itself.

Since Maine v. Thiboutot, 448 U. S. 1 (1980), however, this Court has ignored that fundamental distinction, permitting third parties who benefit from spending conditions to enforce them in §1983 suits against state actors. In doing so, it has created a constitutional quandary: If spending conditions that benefit third parties are laws and secure rights in the same manner as ordinary lawmaking under Congress’ sovereign legislative powers, then such conditions would contradict the bedrock constitutional prohibition against federal commandeering of the States. We escape this quandary only by recognizing spending conditions, not as rights-securing laws, but as the terms of possible contracts that secure rights only by virtue of an offeree’s acceptance—the very conclusion compelled by the traditional understanding of the spending power. The choice between these alternatives is stark and unavoidable: Either spending conditions in statutes like FNHRA are not laws that secure rights cognizable under §1983, or they are unconstitutional direct regulations of States. The Court must, at some point, revisit its understanding of the spending power and its relation to §1983.

This case arises from a §1983 suit to enforce FNHRA’s spending conditions against a county-owned nursing home that receives federal funding. Enacted under Congress’ spending power, FNHRA conditions the receipt of federal Medicaid funding by States and nursing facilities on compliance with a broad range of requirements.

These conditions largely consist of requirements that funding recipients protect certain “rights” of nursing-home residents. In a subsection entitled “[r]equirements relating