"and laws"

[Michael MASINTER]

The discussion is running on two lists.  I append to this list's thread my
response on the FEDCOURTS list, and the thoughtful response from Doug.
Laycock


Michael R. Masinter                     3305 College Avenue
Nova Southeastern University            Fort Lauderdale, Fl. 33314
Shepard Broad Law Center                (954) 262-6151
masinter at nova.edu                       Chair, ACLU of Florida Legal Panel

I wrote:

I agree that Congress has the article one power to create remedies for
constitutionally valid legislation, and that it can exercise that power as
it sees fit within the constraints of the eleventh amendment.  But if
anything is clear from the legislative history of section 1983, it is that
Congress relied on its section five powers.  It understood its article
one powers to be rather limited in 1871.  Section 1983, through Thiboutot,
authorizes claims for compensatory damages including emotional distress
against cities and counties for violating federal regulatory programs such
as the Brooke Amendment and punitive damages against the responsible
individual employees of state and local governments.

Garcia isn't necessarily much help; section 1983 only runs against those
who act under color of state law, and therefore doesn't regulate state or
local governments as an incident to generally applicable regulatory
legislation like the FLSA.

Doug wrote in response:

Michael Masinter says:

>        But if anything is clear from the legislative history of section
> 1983, it is that Congress relied on its section five powers.

        This suggests that Thibotot might be wrongly decided as a matter
of statutory interpretation; it does not suggest that the statute so
construed is unconstitutional.

>
>Garcia isn't necessarily much help; section 1983 only runs against those
>who act under color of state law, and therefore doesn't regulate state or
>local governments as an incident to generally applicable regulatory
>legislation like the FLSA.

        This raises the singling out argument, which the Court reserved in
Condon v. Reno, and which I overlooked.  It is indeed thinkable for this
Court to hold that Congress cannot create more remedies against persons
acting under color of law than against persons not so acting.  I am
inclined to predict that whatever happens to the singling out argument,
section 1983 will be grandfathered.  They would overrule Thibotot before
invalidating 1983 as applied.


On Wed, 26 Apr 2000, Pamela Karlan wrote:

> Am I missing something on the "and laws" discussion?  After Will v.
> Michigan Department of State Police, 491 U.S. 58 (1989), construed the
> word "person" in § 1983 cases as not extending to states or state
> agencies, it's impossible to sue a state or a state agency under section
> 1983.  The state officials who are sued under § 1983 are being sued in
> their <italic>personal</italic> capacity, as Hafer v. Melo, 502 U.S. 21
> (1992), makes clear.  There's certainly no bar to Congress making natural
> persons liable for violating rights conferred by federal law as well as
> for rights conferred by the federal Constitution.  The straightforward
> Eleventh Amendment issue never arises because § 1983 has been construed
> not to allow suits against states in the first place.
>
>
> In other words, § 1983 piggybacks off the same fiction that Ex parte
> Young uses to say this isn't regulation of the state in the first place.
> Thus, as long as Congress has Article I power (under the Commerce,
> Spending, or any other Clause) to pass the "and law" law in the first
> place and apply it to <underline>some</underline>one, it can presumably
> decide to create a special statutory right against people who violate the
> law while themselves acting under color of state law.
>
>
>
> At 12:13 PM 4/26/2000 -0500, Doug Laycock wrote:
>
> >        Section 1983 creates a cause of action and remedy -- not
> including damages
>
> >against a state -- for violations of federal laws.  These underlying
>
> >substantive laws may be either constitutional or unconstitutional as
>
> >applied to state and local governments.  If a particular substantive law
> is
>
> >unconstitutional as applied to states, then obviously there can be no
>
> >section 1983 claim to enforce it.  If a law is valid as applied to
> states,
>
> >then I do not believe that section 1983's enforcement mechanism is
> invalid
>
> >as applied to that law.
>
> >
>
> >        This entails the view that the "and laws" language in section
> 1983 is an
>
> >exercise of Article I powers as applied to the enforcement of Article
> I
>
> >laws.  That's OK as long as Garcia holds and as long as section 1983 is
> not
>
> >interpreted to attempt to override state immunity.
>
> >
>
> >
>
>
>
>
> Pamela S. Karlan
>
>   Kenneth and Harle Montgomery Professor of Public Interest Law
>
>   and Academic Associate Dean
>
> Stanford Law School
>
> 559 Nathan Abbott Way
>
> Stanford, CA 94305-8610
>
> karlan at stanford.edu
>
> 650.725.4851/725.0253 (fax)
>
>