Page:Health and Hospital Corp. of Marion Co. v. Talevski.pdf/38

6 In Thiboutot, the Court held that “the plain language of [§1983] undoubtedly embraces [a] claim that [the defendant] violated” a spending-power statute, reasoning that “the phrase ‘and laws’ … means what it says” and is not “limited to some subset of laws.” 448 U. S., at 4. The Court unquestioningly follows Thiboutot’s logic today.

It is obvious, however, that conditional spending legislation does not function—and, in particular, does not “secure rights”—like laws enacted under Congress’ enumerated legislative powers, such as the Commerce Clause. The latter, which I will refer to as “sovereign legislative” or “regulatory” powers, include powers to directly impose obligations, duties, prohibitions, and the like on individuals and entities beyond the Federal Government, and hence to secure corresponding rights in the persons and entities to which such obligations are owed. Laws that Congress enacts pursuant to its regulatory powers are binding on the regulated parties and pre-empt contrary state law of their own force. Whatever rights such laws secure, those rights are secured “by the … laws” themselves. §1983.

By contrast, legislation that conditions a State’s receipt of federal funds on compliance with certain requirements imposes no obligations and secures no rights of its own force. The stated conditions simply have no effect and do not arguably secure any rights (“by law” or otherwise) unless and until they are freely accepted by the State. Not only that, the Executive Branch can prevent the conditions