Amicus Curiae Brief — Health and Hospital Corporation of Marion County, et al., Petitioners v. Ivanka Talevski, Personal Representative of the Estate of Gorgi Talevski, Deceased

Supreme Court briefSep 23, 2022

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No. 21-806

IN THE

HEALTH AND HOSPITAL CORPORATION OF MARION

COUNTY, ET AL.,

Petitioners,

IVANKA TALEVSKI, PERSONAL REPRESENTATIVE OF THE

ESTATE OF GORGI TALEVSKI, DECEASED,

Respondent.

On Writ of Certiorari to the United States Court

of Appeals for the Seventh Circuit

BRIEF FOR THE NATIONAL CENTER FOR

YOUTH LAW, THE YOUTH LAW CENTER, THE

NATIONAL CENTER FOR LAW & ECONOMIC

JUSTICE, ET AL. AS AMICI CURIAE

SUPPORTING RESPONDENT

POONAM JUNEJA

BRENDA STAR ADAMS

BRENDA SHUM

NATIONAL CENTER FOR

YOUTH LAW

1212 Broadway, 6th Floor

Oakland, CA 94612

ERIN PALACIOS

RACHEL MURPHY

JENNIFER POKEMPNER

YOUTH LAW CENTER

832 Folsom Street, #700

San Francisco, CA 94107

CONSTANCE VAN KLEY

Counsel of Record

RYLEE SOMMERS-FLANAGAN

UPPER SEVEN LAW

1 N. Last Chance Gulch

Helena, MT 59601

(406) 306-0330

cvk@uppersevenlaw.com

GREGORY BASS

SAIMA AKHTAR

NATIONAL CENTER FOR LAW &

ECONOMIC JUSTICE

50 Broadway, Suite 1500

New York, NY 10004

TABLE OF CONTENTS

Interest of Amici Curiae .............................................. 1

Summary of Argument ................................................ 6

Argument ...................................................................... 9

I. The question whether a federal right is

enforceable under Section 1983 cannot be

faithfully resolved by a bright-line rule against

all private enforcement of Spending Clause

legislation. ............................................................... 9

A. Section 1983 does not limit future

congresses from defining “rights * * *

secured by the * * * laws” of the United

States. .................................................................. 9

B. The appropriate question is whether a

particular substantive statute confers

enforcement

rights

third-party

beneficiaries. ..................................................... 15

II. A bright-line rule barring all private

enforcement of Spending Clause legislation

would upend the vertical and horizontal

balances of powers and exacerbate harm

suffered by individuals when state actors

violate rights secured by federal law. .................. 20

A. When Congress enacts Spending Clause

legislation, it operates within the

boundaries of this Court’s prior decisions. ...... 20

B. When states elect to participate in federal

programs that grant rights enforceable

under Section 1983, they knowingly and

voluntarily accept the risk of enforcement

actions................................................................ 26

C. Individual enforcement of “rights * * *

secured by” Spending Clause legislation is,

at times, necessary to give effect to

legislation. ......................................................... 28

Conclusion .................................................................. 33

iii

TABLE OF AUTHORITIES

CASES

PAGE(S)

Antrican v. Odom, 290 F.3d 178

(4th Cir. 2002) ................................................. 32

Armstrong v. Exceptional Child Ctr., Inc.,

575 U.S. 329 (2015)......................................... 18

Baldwin v. United States,

140 S. Ct. 690 (2020) ...................................... 22

Barry v. Lyon, 834 F.3d 706 (6th Cir. 2016) ..... 31

Blessing v. Freestone,

520 U.S. 329 (1997) ................................ passim

Brewer v. Dyer, 61 Mass. 337 (1851) ................. 12

Briggs v. Bremby, 792 F.3d 239

(2d Cir. 2015) .................................................. 31

Cal. State Foster Parent Ass’n v. Wagner,

624 F.3d 974 (9th Cir. 2010) .......................... 26

Cannon v. Univ. of Chi., 441 U.S. 677 (1979) ... 21

Carson P. ex rel. Foreman v. Heineman,

240 F.R.D. 456 (D. Neb. 2007) ....................... 33

Carter v. United States, 102 Fed. Cl. 61

(Ct. Fed. Claims 2011) .................................... 19

Castle v. United States, 301 F.3d 1328

(Fed. Cir. 2002) ............................................... 18

Chamblee v. McKenzie, 31 Ark. 155 (1876)....... 11

Chapman v. Houston Welfare Rights Org.,

441 U.S. 600 (1979)................................... 10, 13

Clay v. United States, 537 U.S. 522 (2003)....... 21

Coleman v. Whitney, 20 A. 322 (Vt. 1889)......... 11

Cruz v. Zucker, 116 F. Supp. 3d 334

(S.D.N.Y. 2015) ............................................... 32

D.O. v. Glisson, 847 F.3d 374 (6th Cir. 2017) ... 26

Doe v. Dist. of Columbia, 796 F.3d 96

(D.C. Cir. 2015) ............................................... 19

Eddy v. Roberts, 17 Ill. 505 (1856)..................... 12

Elk v. United States, 87 Fed. Cl. 70

(Fed. Cl. 2003) ................................................. 19

FCC v. AT&T Inc., 562 U.S. 397 (2011) ............ 16

Girouard v. United States, 328 U.S. 61 (1946) . 15

Gonzaga Univ. v. Doe,

536 U.S. 273 (2002)................................. passim

Hartford Underwriters Ins. Co. v. Union

Planters Bank, N.A., 530 U.S. 1 (2000) ......... 10

Hauenstein v. Lynham, 100 U.S. 483 (1879)..... 12

Hernandez v. Mesa, 140 S. Ct. 735 (2020) ........ 21

Hughes v. Edwards, 22 U.S. 489 (1824) ............ 12

Kimble v. Marvel Ent., LLC,

576 U.S. 446 (2015)......................................... 15

Lehow v. Simonton, 3 Colo. 346 (1877).............. 11

Lloyd’s v. Harper (1880), 16 Ch 290 .................. 11

Maine v. Thiboutot, 448 U.S. 1 (1980) ....... passim

Mason v. Hall, 30 Ala. 599 (1857) ...................... 12

McDonald v. Chicago, 561 U.S. 742 (2010) ....... 16

Morgan v. Overman Silver Mining Co.,

37 Cal. 534 (Cal. 1869) ................................... 11

Nat’l Fed’n of Ind. Bus. v. Sebelius,

567 U.S. 519 (2012)......................................... 27

New Prime Inc. v. Oliveira,

139 S. Ct. 532 (2019) ...................................... 15

N.Y. State Citizens’ Coal. for Children v. Poole,

922 F.3d 69 (2d Cir. 2019) .............................. 26

N.Y. State Rifle & Pistol Ass’n, Inc. v. Bruen,

142 S. Ct. 2111 (2022) .................................... 16

North Star Steel Co. v. Thomas,

515 U.S. 29 (1995)........................................... 21

Parents’ League for Effective Autism Servs. v.

Jones-Kelley, 565 F. Supp. 2d 895

(S.D. Ohio 2008) .............................................. 33

Pediatric Specialty Care, Inc. v. Ark. Dep’t of

Human Servs., 443 F.3d 1005

(8th Cir. 2006) ................................................. 32

Pennhurst State School & Hospital v.

Halderman, 451 U.S. 1 (1981).................. 17, 20

Pulliam v. Allen, 466 U.S. 522 (1984) ................ 14

S.D. ex rel. Dickson v. Hood, 391 F.3d 581

(5th Cir. 2004) ................................................. 32

S.R. v. Pa. Dep’t of Human Servs.,

309 F. Supp. 3d 250 (M.D. Pa. 2018) ............. 32

Salazar v. Dist. of Columbia,

729 F. Supp. 2d 257 (D.D.C. 2010) ................ 32

Selig v. Pediatric Specialty Care, Inc.,

551 U.S. 1147 (2007)....................................... 32

Solorio v. United States, 483 U.S. 435 (1987) ... 10

Stewart v. Dutra Constr. Co.,

543

U.S. 481 (2005)................................................ 16

Suter v. Artist M., 503 U.S. 347 (1992) ....... 14, 24

Sw. Airlines Co. v. Saxon,

142 S. Ct. 1783 (2022) .................................... 14

Tomlinson v. Gill (1756),

37 Eng. Rep. 221, 1 Ambl. 330 ....................... 11

vii

Tweddle v. Atkinson (1861),

121 Eng. Reprint 762, 1 Best & S. 393 .......... 11

United States v. Bowen, 100 U.S. 508 (1879) ... 13

United States v. Ron Pair Enters., Inc.,

489 U.S. 235 (1989)......................................... 10

United States v. Wells, 519 U.S. 482 (1997) ..... 21

Warner-Jenkinson Co. v. Hilton Davis Chem.

Co., 520 U.S. 17 (1997) ..................................... 7

Westside Mothers v. Olszewski, 454 F.3d 532

(6th Cir. 2006) ................................................. 32

Wisc. Cent. Ltd. v. United States,

138 S. Ct. 2067 (2018) .................................... 16

STATUTES

42 U.S.C. § 671 ............................................. 24, 25

42 U.S.C. § 1320a-2 ............................................ 24

42 U.S.C. § 1395i-3(c) ......................................... 17

42 U.S.C. § 1396 ................................................. 31

42 U.S.C. § 1396r(c)...................................... 17, 31

42 U.S.C. § 1396r(h)(8)....................................... 17

42 U.S.C. § 1983 ....................................... 7, 10, 21

viii

Adoption Assistance & Child Welfare Act of

1980, Pub. L. 96-272, 94 Stat. 500 ................ 22

Federal Courts Improvement Act of 1996, Pub.

L. No. 104-317, § 309, 110 Stat. 3847 ............ 14

Food and Nutrition Act,

7 U.S.C. §§ 2011-2036d ............................ 30, 31

Improving America’s Schools Act of 1994

(Schools Act), Pub. L. No. 103-382, § 555(a),

108 Stat 4057-4058 (42 U.S.C. 1320a-2) ....... 14

Pub. L. 105-89, § 202 (1997) .............................. 23

Pub. L. No. 115-123, § 50702,

132 Stat. 132 (2018) ........................................ 24

Social Security Act Amendments of 1994, Pub. L.

No. 103-432, § 211(a), 108 Stat. 4460

(42 U.S.C. 1320a-10) ....................................... 14

OTHER AUTHORITIES

Alisha Coleman-Jensen, Matthew P. Rabbitt,

Christian A. Gregory, and Anita Singh, USDA

Econ. Res. Serv., Household Food Security in

the U.S. in 2021 (September 2022) ................ 30

Anna D. Johnson & Anna J. Markowitz,

Associations Between Household Food

Insecurity in Early Childhood, 89 Child

Development, Issue 2 ..................................... 30

Arthur L. Corbin, Contracts for the Benefit of

Third Persons, 46 L. Q. Rev. 12 (1930) .......... 11

Children’s Bureau, U.S. Dep’t of Health &

Human Servs., Factsheet: Long-Term

Consequences of Child Abuse & Neglect

(April 2019) ..................................................... 28

Children’s Health Fund, Unfinished Business:

More than 20 Million Children in U.S. Still

Lack Sufficient Access to Essential Health

Care (November 2016) .................................... 29

Ctr. for Medicare & Medicaid Servs.,

EPSDT—A Guide for States: Coverage in the

Medicaid Benefit for Children and Adolescents

(2014) ............................................................... 32

David Sloss, When Do Treaties Create

Individually Enforceable Rights?: The

Supreme Court Ducks the Issue in Hamdan

and Sanchez-Llamas, 45 Colum. J. Transnat’l

L. 20 (2006) ..................................................... 13

E. Jason Baron & Max Gross, Working Paper, Is

There a Foster Care-to-Prison Pipeline?

Evidence from Quasi-Randomly Assigned

Investigators, Nat’l Bureau of Econ. Res.

(April 2022) ..................................................... 28

Eloise Pasachoff, Agency Enforcement of

Spending Clause Statutes: A Defense of

the Funding Cut-Off, 123 Yale L. J. 248

(2014) ............................................................... 25

Greg Duncan et al., The Importance of Early

Childhood Poverty, Social Indicators Research

108(1) (2012) ................................................... 29

Lisa E. Key, Private Enforcement of Federal

Funding Conditions Under § 1983: The

Supreme Court’s Failure to Adhere to the

Doctrine of Separation of Powers, 29 U.C.

Davis L. Rev. 283 (1996) ................................. 25

Peter J. Pecora et al., Improving Family Foster

Care: Findings from the Northwest Foster

Care Alumni Study (April 5, 2005) ................ 29

Restatement (Second) of Contracts § 302 ......... 18

Restatement (Second) of Contracts § 307 ......... 17

Restatement (Second) of Contracts § 313 ... 18, 22

Robert S. Adelson, Note, Third Party Beneficiary

& Implied Right of Action Analysis: The

Fiction of One Governmental Intent, 94 Yale

L. J. 875 (1985) ............................................... 19

S. Rep. No. 96-336, at 1 (1979), as reprinted in

1980 U.S.C.C.A.N. 1448 ................................. 23

U.S. Dep’t of Health & Human Servs., Child &

Family Servs. Reviews Aggregate Report:

Fiscal Years 2015–2018, iii, 10

(June 5, 2020).................................................. 25

INTEREST OF AMICI CURIAE1

Amici

are organizations with decades of

experience advocating for children and youth in courts

and legislatures. Based on their experiences, amici

know both that Congress anticipates limited private

enforcement of Spending Clause legislation and that

such enforcement is essential to many federal

legislative schemes protecting the rights of children

and youth. Because the issues presented may impact

amici’s work promoting the dignity, safety, and welfare

of children and youth, amici have filed briefs in other

cases addressing private enforcement of Spending

Clause legislation. See, e.g., Blessing v. Freestone,

520 U.S. 329 (1997). A list of amici follows.

For over 50 years, the National Center for Youth

Law (“NCYL”) has worked to advance the interests of

children and youth.

NCYL engages in impact

litigation and policy advocacy on behalf of children and

youth, particularly in the areas of education, health,

immigration, child welfare, commercial sexual

exploitation, and youth justice.

The Youth Law Center (“YLC”) has advocated on

behalf of children and youth for over 40 years. YLC is

a leader in efforts to build systems that strengthen

community and familial support for children and

youth and to develop youth-centered national and

state policies. YLC has long worked to end inhumane

1 Both

parties provided blanket consent to the filing of

amicus curiae briefs. S. Ct. R. 37.3(a). No counsel for any party

authored this brief in whole or in part, and no person or entity

other than amicus curiae or its counsel made a monetary

contribution to fund the brief’s preparation or submission.

(1)

practices against children and youth in the nation’s

child welfare and juvenile justice systems.

Since 1965, the National Center for Law and

Economic Justice (“NCLEJ”) has worked to advance

racial and economic justice for low-income, vulnerable

individuals through litigation, policy advocacy, and

grassroots organizing. NCLEJ focuses on enforcing

legally protected civil rights, improving access to

public benefits systems, and helping build selfsufficiency for low-income workers and working-class

families.

A Better Childhood (“ABC”) is a nonprofit legal

advocacy organization that works to reform

constitutionally and federally inadequate child

welfare systems through litigation. Through litigation

and in collaboration with policy experts, local

organizations, and government officials, ABC develops

and implements lasting systemic reform.

Advokids is a California-based nonprofit

organization that advocates for the child welfare

system to provide the legal rights and protections to

which every foster child is entitled under law,

including each child’s right to safety, security, and a

permanent home. Advokids’ policy work includes

filing and participating in amicus briefs on issues that

directly affect the rights and well-being of foster

children.

For 30 years, the Alliance for Children’s Rights

(“Alliance”) has served impoverished, abused, and

neglected children and youth by providing free legal

and social services and promoting systemic solutions.

Beginning as a collaborative effort to provide free legal

services to indigent children in Los Angeles County,

the Alliance later partnered with the juvenile court to

serve foster care-impacted youth, and has grown to

provide comprehensive legal advocacy to secure rights

afforded to children and youth under federal and state

law.

The Children’s Advocacy Institute (“CAI”),

founded at the University of San Diego School of Law

in 1989, works to improve outcomes for children and

youth, with special emphasis on improving the child

protection and foster care systems and enhancing

resources available to youth aging out of care. CAI's

academic and clinical programs, research, and

advocacy, conducted through its offices in San Diego,

Sacramento, and Washington, D.C., seek to leverage

change for children and youth through impact

litigation; regulatory, administrative, and legislative

advocacy; and public education.

The Education Law Center-PA (“ELC”) is a nonprofit, legal advocacy organization dedicated to

ensuring that all children in Pennsylvania have access

to a quality public education. Through individual

representation,

impact

litigation,

community

engagement, and policy advocacy, ELC works to

eliminate systemic inequities that lead to disparate

educational outcomes based on the intersection of

race, gender, gender identity/expression, sexual

orientation, nationality, disability status, poverty, and

homelessness. During its more than 45-year history,

ELC has handled numerous individual matters and

impact cases on behalf of students impacted by

systemic racism, deep poverty, and discriminatory

policies and practices.

Equal Rights Advocates (“ERA”) is a Californiabased national civil rights advocacy organization

dedicated to protecting and expanding economic and

educational access and opportunities for people of all

marginalized genders. Since its founding in 1974,

ERA has led efforts to combat sex discrimination and

advance gender equality through litigation, policy

reform, legislative advocacy, community education,

and free legal assistance to individuals experiencing

unfair treatment at work and in school.

Family Violence Appellate Project (“FVAP”) is a

California and Washington state non-profit legal

organization whose mission is to ensure the safety and

well-being of survivors of domestic violence and other

forms of intimate partner, family, and gender-based

abuse by helping them obtain effective appellate

representation.

FVAP provides appellate legal

assistance to survivors of abuse, advocates for

survivors on important legal issues, and offers

training and legal support for legal services providers

and counselors.

Florida Legal Services (“FLS”) is a statewide

legal services organization dedicated to advancing

economic, social, and racial justice and removing

barriers that undermine and restrict equal access to

justice and basic human needs. FLS helps poor,

vulnerable, and hard-to-reach people access needed

supports and services, and, together with fellow

amicus curiae, share a mission to promote the dignity,

safety, and welfare of children and youth.

Greater Hartford Legal Aid (“GHLA”) is a private

non-profit organization that represents low-income

people in the greater Hartford area. GHLA attorneys

engage in both direct representation and systemic

advocacy and litigation related to public benefits,

including those secured by federal law.

Founded in 1975 as the nation’s first nonprofit

public interest law firm for children, Juvenile Law

Center continues to lead in the fight for rights, dignity,

equity and opportunity for youth. Through litigation,

policy advocacy, and communications, Juvenile Law

Center works to secure and enhance legal rights for

children and youth in the child welfare and justice

systems throughout the country.

The National Center on Adoption and

Permanency (“NCAP”) strives to transform the

paradigm in child welfare policy and practice from

“child placement” to “family success.” NCAP provides

research and expertise to assist agencies,

organizations, advocacy groups, educators, and others

in preventing harmful displacements, connecting

children with permanent families, and providing

consulting services to all parties, including families

and professionals.

New Haven Legal Assistance Association

(“NHLAA”) was founded in 1964 to provide free legal

support to low-income neighborhoods in New Haven,

Connecticut. NHLAA litigates, educates, and pursues

policy and system-wide reform on behalf of individuals

suffering from poverty and racism in New Haven and

beyond.

The Shriver Center on Poverty Law (“Shriver

Center”) is a Chicago-based non-profit legal and policy

advocacy organization that holds a leadership role in

the anti-hunger, health justice, and anti-poverty

community. For 54 years, the Shriver Center has

worked to ensure that all people have access to

resources and programs that provide for basic needs

and advance long-term well-being and opportunity,

developing deep expertise in public benefits programs,

including SNAP and Medicaid.

The Southern Poverty Law Center (the “SPLC”)

is a catalyst for racial justice in the South and beyond,

working in partnership with communities to

dismantle white supremacy, strengthen intersectional

movements, and advance the human rights of all

people. To advance that work, the SPLC litigates and

advocates to make sure access to healthcare is not

dependent on a person's race or economic status. This

includes advocating for meaningful access to State

Medicaid programs in the South.

Amici agree with Respondent that the Court

should affirm the decision below.

Amici write

separately to explain, based on decades of firsthand

experience in both drafting and enforcing legislation,

why: (1) limited private enforcement is built into

certain Spending Clause legislation; and (2) limited

private enforcement is essential to the continued

functioning of Spending Clause legislation. These

issues are of primary importance to the children and

youth for which amici advocate, particularly when

states assume custody of children and responsibility

for meeting their basic needs, many of which are

protected by Spending Clause legislation.

SUMMARY OF ARGUMENT

The Court has long held that certain provisions

in Spending Clause legislation create “rights * * *

secured by * * * the laws” of the United States.

42 U.S.C. § 1983. Rightly so. The Court’s precedents

are consistent with the text and history of both

Section 1983 and later congressional enactments

securing substantive individual rights. “To change so

substantially the rules of the game now could very well

subvert the various balances” struck by Congress,

state actors, lower courts, and individuals who have

learned to navigate a legal landscape informed by the

Court’s prior decisions. See Warner-Jenkinson Co. v.

Hilton Davis Chem. Co., 520 U.S. 17, 32 n.6 (1997).

Millions of children and youth depend on

federally funded, state-administered services that

assist families in meeting basic needs, help prevent or

reduce harms caused by abuse and neglect, and

support children’s physical and mental health.

Federally funded programs provide access to essential

health care, combat childhood hunger, prevent

unnecessary and dangerous institutionalization,

reunite children with their families, and, when

reunification is impossible, connect children with

other loving, permanent homes.

For our most

vulnerable children who come into the foster care

system, these federal programs help ensure the daily

care, safety, and protection of youth separated from

their families.

Spending Clause legislation requires states to

spend resources in specifically delineated ways to

benefit children and youth. When states fail to keep

promises they made to obtain federal funds, children

and youth may suffer irreparable harms. Section 1983

enforcement is a final backstop to hold states to their

word, and children and youth rely on this enforcement

mechanism to prevent and recover from hunger,

homelessness, preventable disease, and abuse and

neglect.

Petitioners ask the Court to cut an essential,

firmly established lifeline for vulnerable Americans.

They do so by misstating historical contract principles,

distorting the plain meaning of Section 1983, and

ignoring entirely the text and history of later

congressional enactments.

Contract

law

principles

during

the

Reconstruction Era, when Section 1983 was enacted

and amended, do not create a path to overrule settled

law. First, the meaning of Section 1983 is clear on its

face: it imposes no limit on future definitions of “rights

* * * secured by the * * * laws” of the United States.

Second, Reconstruction Era contract principles

support third-party beneficiary enforcement of both

private and government contracts.

Third,

Reconstruction Era interpretive methods are

consistent with the plain text approach of Thiboutot,

reinforcing the Court’s longstanding recognition that

Spending Clause legislation may create and define

rights enforceable under Section 1983. Maine v.

Thiboutot, 448 U.S. 1, 4 (1980). Finally, Congress has

ratified Thiboutot and its progeny.

The appropriate question is not whether thirdparty beneficiaries could enforce a contract in the

1870s but instead whether a particular substantive

legislative scheme conveys individual rights

enforceable through Section 1983. Answering that

question requires consideration of precedent, which

explains contemporaneously enacted legislation and

informs later congressional acts. This Court has

established how to determine whether a particular

statutory scheme conveys enforceable individual

rights. Because courts must consider the backdrop

against which substantive legislation is enacted to

give effect to that legislation, the separation of powers

demands continued application of this approach.

Like Congress, other actors understand and

rely on the Court’s decisions, further counseling

against Petitioners’ request to upheave longstanding

precedent. States know the rules and choose to accept

them in exchange for federal money. Millions of

Americans rely on statutory rights that have been

enforced through Section 1983. When individuals

bring enforcement actions, not only do they protect

their own rights and advance federal policy, they also

play an integral and expected role in enforcing federal

statutes.

ARGUMENT

The question whether a federal right is

enforceable under Section 1983 cannot be

faithfully resolved by a bright-line rule against

all private enforcement of Spending Clause

legislation.

Section 1983 does not limit future

congresses from defining “rights * * *

secured by the * * * laws” of the United

States.

1. Section 1983 “means what it says[.]”

Thiboutot, 448 U.S. at 4. And it says, in no uncertain

terms, that individuals may sue state actors who

violate “rights * * * secured by the Constitution and

laws” of the United States. 42 U.S.C. § 1983. Section

1983 neither exempts rights conferred through

Spending Clause legislation nor limits the rights that

may be “secured” by later congressional acts. It should

not be amended by judicial action now—nearly 150

years

later—to

impose

unprecedented

new

limitations.

Section 1983 is a procedural vehicle authorizing

individual enforcement of substantive federal rights,

whether created by the Constitution or statute.

“[W]hen ‘the statute’s language is plain, the sole

function of the courts’—at least where the disposition

required by the text is not absurd—‘is to enforce it

according to its terms.’” Hartford Underwriters Ins.

Co. v. Union Planters Bank, N.A., 530 U.S. 1, 6 (2000)

(quoting United States v. Ron Pair Enters., Inc., 489

U.S. 235, 241 (1989)). This is particularly true here

because the legislative history is “far too ambiguous to

justify [a] restriction on the plain language.” Solorio

v. United States, 483 U.S. 435, 445 (1987); see

Thiboutot, 448 U.S. at 7-8; Chapman v. Houston

Welfare Rights Org., 441 U.S. 600, 608-12 (1979); id.

at 623 (Powell, J., concurring); id. at 646 (White, J.,

concurring in judgment).

2. Petitioners’ arguments about the meaning of

Section 1983 at the time of enactment are myopic and

inaccurate. See Pet. Br. 10–22. Congress secures

rights through substantive legislation, so the question

of whether a right is enforceable demands scrutiny of

the text and history of those congressional acts—not

simply Section 1983. See infra pp. 15–17. Further,

third-party beneficiaries did, in fact, enforce contracts

during the Reconstruction Era.

The “rule” against third-party enforcement was

manufactured by the English Court of Chancery in

Tweddle v. Atkinson (1861), 121 Eng. Reprint 762, 1

Best & S. 393. Arthur L. Corbin, Contracts for the

Benefit of Third Persons, 46 L. Q. Rev. 12 (1930). Prior

to Tweddle, it was not the rule—and had not been for

over a century. Id. at 18 (“It became the fashion among

law writers to regard the English law as settled by

[Tweddle].”); id. at 36 (“Tweddle * * * applied a narrow

common-law rule that was even then in conflict with a

more enlightened decision of a higher court. * * * [N]o

account was taken of what the Court of Chancery had

done.”); see also Lloyd’s v. Harper (1880), 16 Ch 290

(“Where a contract is made for the benefit and on

behalf of a third person, there is an equity in that third

person to sue on the contract[.]”); see also Tomlinson v.

Gill (1756), 37 Eng. Rep. 221, 1 Ambl. 330.

In the United States, too, third-party

beneficiaries enforced contracts throughout the 19th

Century. See, e.g., Coleman v. Whitney, 20 A. 322 (Vt.

1889) (woman could enforce contract between her

brother and her estranged husband governing her

maintenance); Lehow v. Simonton, 3 Colo. 346, 348

(1877) (“[T]he decided preponderance of American

authority sustains the action of the beneficiary.”);

Chamblee v. McKenzie, 31 Ark. 155, 162 (Ark. 1876)

(“[I]t is a general principle that the party for whose

sole benefit the promise was made, may sue thereon in

his own name, although the engagement be not

directly to or with him.”); Morgan v. Overman Silver

Mining Co., 37 Cal. 534, 537 (1869) (“[T]he party for

whose benefit the promise is made, may maintain an

action against the promisor.”); Mason v. Hall, 30 Ala.

599, 601 (1857) (“[T]he weight of authority, both in

England and America, is decidedly in favor of the

proposition, that where a parol promise is made to one,

for the benefit of another, an action may be maintained

upon it by him for whose benefit it was made.”); Eddy

v. Roberts, 17 Ill. 505, 508 (1856) (“Where one enters

into a simple contract with another, for the benefit of

a third, such third person may maintain an action for

breach.”); Brewer v. Dyer, 61 Mass. 337, 340 (1851)

(“When one person * * * engages with another, by

simple contract, to do some act for the benefit of a

third, the latter, who would enjoy the benefit of the act,

may maintain an action for the breach of such

engagement.”).

Nor was there any rule against third-party

enforcement of government contracts; the line

between private and government contracts reflects a

distinctly modern concern and does not, in any event,

apply to Spending Clause legislation. See infra pp.

15–20.

Historically, third-party enforcement of

government contracts was taken for granted. Before

and during the Reconstruction Era, the Court allowed

noncitizens to enforce international treaties. See

Hauenstein v. Lynham, 100 U.S. 483 (1879); Hughes v.

Edwards, 22 U.S. 489 (1824). Indeed, “[i]f one

surveyed judicial decisions from 1789 to 1975, one

could not find a single decision endorsing the * * *

presumption against individual enforcement of treaty

rights.” David Sloss, When Do Treaties Create

Individually Enforceable Rights?: The Supreme Court

Ducks the Issue in Hamdan and Sanchez-Llamas, 45

Colum. J. Transnat’l L. 20, 27 (2006).

3. Moreover, the relevant question is not which

specific claims the Reconstruction Era Congress

contemplated but instead whether it intended to limit

the later creation of federal statutory rights. The

answer is no: Section 1983 does not confine the rights

securable by law; rather, it serves as a procedural

vehicle for enforcement of those rights. Gonzaga Univ.

v. Doe, 536 U.S. 273, 285 (2002) (“[Section] 1983

merely provides a mechanism for enforcing individual

rights ‘secured’ elsewhere, i.e., rights independently

‘secured by the Constitution and laws’ of the United

States” (quoting Chapman, 441 U.S. at 617.)).

Congress did not intend to limit future definitions of

federal rights when it enacted Section 1983. See id.;

Blessing v. Freestone, 520 U.S. 329, 340–41 (1997);

Thiboutot, 448 U.S. at 7–8.

While we cannot divine precisely Congress’s

motivations in amending Section 1983 to include a

right to enforce the “laws of the United States,” see

Thiboutot, 448 U.S. at 7–8, we do know how the Court

of the time would have resolved that question—by

looking no further than the unambiguous statutory

text, United States v. Bowen, 100 U.S. 508, 511 (1879).

In Bowen, the Court considered whether a statutory

revision was attributable to a transcription error.

Bowen, 100 U.S. at 513. Its conclusion? The statute’s

history was irrelevant because the text was clear:

“When the meaning is plain, the courts cannot look to

* * * see if Congress erred * * * .” Ibid. Then, as now,

the “words Congress chose” control. See Sw. Airlines

Co. v. Saxon, 142 S. Ct. 1783, 1792–93 (2022). The

Congress of 1874 “was aware of what it was doing, and

the legislative history does not demonstrate that the

plain language was not intended.” Thiboutot, 448 U.S.

at 7–8. “[R]ights * * * secured by the * * * laws” of the

United States plainly means all “rights secured by the

* * * laws” of the United States, including laws enacted

pursuant to Congress’s Spending Power.

4. Congress has reinforced and ratified the rule

that individual rights secured through Spending

Clause legislation may be enforced through Section

1983. The Court has called on Congress to weigh in.

Thiboutot, 448 U.S. at 8. Congress has responded

repeatedly, demonstrating that it understands its

power and the Court’s Section 1983 jurisprudence. For

example, following Pulliam v. Allen, 466 U.S. 522

(1984), Congress narrowed Section 1983 in the Federal

Courts Improvement Act of 1996, Pub. L. No. 104-317,

§ 309, 110 Stat. 3847, 3853, to prohibit injunctive relief

in actions against judicial officers. Most tellingly,

Congress amended the Social Security Act in response

to Suter v. Artist M., 503 U.S. 347 (1992), ratifying the

rule that individuals may, consistent with the Court’s

prior decisions, enforce individual rights conferred

through Spending Clause legislation.

Improving

America’s Schools Act of 1994 (Schools Act), Pub. L.

No. 103-382, § 555(a), 108 Stat 4057-4058 (42 U.S.C.

1320a-2); Social Security Act Amendments of 1994,

Pub. L. No. 103-432, § 211(a), 108 Stat. 4460 (42

U.S.C. 1320a-10); see Br. of United States as Amicus

Curiae at 18–20.

Attempting to negate the significance of

congressional reliance, Petitioners ask this Court to

jettison centuries of case law by declaring Section 1983

a common-law statute. Pet. Br. 35–38. Setting aside

that this argument undermines entirely Petitioners’

request to apply 19th Century contract principles, it

exposes the arrogance of Petitioners’ position—

Petitioners ask the Court to upend not only its own

precedent but all legislation enacted in reliance upon

that precedent. Appropriately, “stare decisis carries

enhanced force when a decision * * * interprets a

statute. * * * All of [the Court’s] interpretive decisions,

in whatever way reasoned, effectively become part of

the statutory scheme, subject (just like the rest) to

congressional change.” Kimble v. Marvel Ent., LLC,

576 U.S. 446, 456 (2015). Like Respondent, amici do

not suggest the Court read overmuch into

congressional inaction but only note the “affirmative

action taken by Congress.” Girouard v. United States,

328 U.S. 61, 70 (1946); see Kimble, 576 U.S. at 471–72

(Alito, J., dissenting).

The appropriate question is whether a

particular substantive statute confers

enforcement rights to third-party

beneficiaries.

1. A faithful inquiry into whether a statutory

scheme provides individual enforceable “rights * * *

secured by the Constitution and laws” must begin with

the statutory scheme itself. The Court’s precedents

recognize this precept. The first question, always, is

“whether Congress intended to create a federal right.”

Gonzaga, 536 U.S. at 283.

In questions of statutory interpretation, the

original meaning of the statutory text controls. New

Prime Inc. v. Oliveira, 139 S. Ct. 532, 539 (2019); Wisc.

Cent. Ltd. v. United States, 138 S. Ct. 2067, 2074

(2018). Often relevant to that inquiry is the “backdrop

against which Congress enacted” a law. Stewart v.

Dutra Constr. Co., 543 U.S. 481, 487 (2005); see FCC

v. AT&T Inc., 562 U.S. 397, 404 (2011). Thus,

congressional reliance and contemporaneous contract

principles are more relevant to determining the

enforceability of a particular statutory scheme than

Reconstruction Era contract rules.

Lower courts can perform the necessary review.

“To be sure, ‘historical analysis can be difficult; it

sometimes requires resolving threshold questions, and

making nuanced judgments about which evidence to

consult and how to interpret it.’” N.Y. State Rifle &

Pistol Ass’n, Inc. v. Bruen, 142 S. Ct. 2111, 2130 (2022)

(quoting McDonald v. Chicago, 561 U.S. 742, 803-04

(2010) (Scalia, J., concurring)). If judges and parties

can ask what Congress meant in 1874 when it

amended Section 1983 in relevant part, they can ask

what Congress meant when enacting later,

substantive laws pursuant to its spending power. This

is the “right question[].” See United States v. Vaello

Madero, 142 S. Ct. 1539, 1566 (2022) (Gorsuch, J.,

concurring) (“[S]ettling this question right would raise

difficult new ones. * * * But at least they would be the

right questions.”).

Petitioners nonetheless ignore the bulk of the

relevant statutory language and historical context—

failing to give any attention to the original meaning of

the Federal Nursing Home Reform Act of 1987

(“FNHRA”).

FNHRA was drafted, debated, and

enacted with full knowledge of the Court’s precedents.

See Resp. Br. 13–16. Congress addressed the concern

identified in Pennhurst State School & Hospital v.

Halderman with private enforcement of rights upon

which federal funds are not clearly conditioned, 451

U.S. 1, 18 (1981), by conditioning participation in

Medicaid and Medicare on compliance with a

Residents’ Bill of Rights, 42 U.S.C. §§ 1395i-3(c),

1396r(c).

FNHRA uses clear, individual rightsconferring language, 42 U.S.C. § 1396r(c), and

preserves existing individual remedies, 42 U.S.C.

§ 1396r(h)(8). The question presented cannot be

resolved fairly by ignoring FNHRA’s text and history

entirely, particularly given Petitioners’ misstatement

of Reconstruction Era contract principles.

2. To resolve the question of whether a

substantive legislative scheme creates enforceable

rights, contemporary common-law contract principles

may reveal the operative meaning of the statutory

text. Monsasky v. Taglieri, 140 S. Ct. 719, 733 (2020)

(Thomas, J., concurring in part) (contemporaneous

sources are evidence of original meaning). On that

point, the rules relevant to modern-era Spending

Clause legislation are clear. Intended beneficiaries

may take legal action to induce performance by a

promisor, Restatement (Second) of Contracts § 307

(Am. L. Inst. 1981), or to secure contract damages, id.

§ 310.

The existing common-law definition of “intended

beneficiary” hews closely to the rule Petitioners ask

the Court to overturn. In relevant part, a “beneficiary

of a promise is an intended beneficiary if [(a)]

recognition of a right to performance in the beneficiary

is appropriate to effectuate the intention of the

parties” and (b) “the circumstances indicate that the

promisee intends to give the beneficiary the benefit of

the promised performance.” Restatement (Second) of

Contracts § 302. Likewise, the rule developed through

Thiboutot and its progeny ensures that Section 1983

enforcement is available only if (a) an individual

enforcement right is consistent with the overall

statutory scheme, Gonzaga, 536 U.S. at 284 & n.4;

Blessing, 520 U.S. at 341, and (b) Congress clearly

intended to convey an enforceable right, Gonzaga,

536 U.S. at 283.

Much has been made of the Armstrong plurality’s

statement that modern rules preclude third-party

enforcement of government contracts: “[T]he modern

jurisprudence permitting intended beneficiaries to sue

does not generally apply to contracts between a

private party and the government—much less to

contracts between two governments.” Armstrong v.

Exceptional Child Ctr., Inc., 575 U.S. 329, 332 (2015)

(internal citations omitted). The plurality’s statement

rests on two misconceptions of modern contract law.

First, third-party beneficiaries can and do enforce

government contracts. See Restatement (Second) of

Contracts § 313 (“promisor who contracts with a

government or governmental agency” potentially

liable to third-party beneficiary when “the terms of the

promise provide for such liability” or “a direct action

against the promisor is consistent with the terms of

the contract and with the policy of the law authorizing

the contract and prescribing remedies for its breach”);

Castle v. United States, 301 F.3d 1328 (Fed. Cir. 2002)

(question is whether the promisor “made any promises

* * * that were expressly intended to benefit the [thirdparty plaintiffs] personally”); see also, e.g., Doe v. Dist.

of Columbia, 796 F.3d 96, 109 (D.C. Cir. 2015) (“Third

parties to a consent decree, involving the government

or not, must demonstrate that they are the intended

beneficiaries in order to have enforcement rights.”)

(citation omitted); Carter v. United States, 102 Fed. Cl.

61 (Ct. Fed. Claims 2011) (livestock producer could

enforce contract between United States and states,

through which states received nonfat dry milk to

distribute to livestock producers).

Second, individuals can and do enforce contracts

between two governments—again, so long as the

contracts confer individual rights. Not only were

individual enforcement actions possible when Section

1983 was enacted, see supra pp. 12–13, they are

brought in the modern era in limited circumstances.

See, e.g., Elk v. United States, 87 Fed. Cl. 70, 79 (Fed.

Cl. 2003) (“[T]he 1868 Treaty’s ‘bad men’ provision

created an individual third-party contractual right

through which an individual claimant could directly

pursue a suit against the United States.”).

Importantly, the rationale for limiting thirdparty enforcement of government contracts does not

apply here.

Limitations on enforcement exist

“[b]ecause every member of the public is in some sense

an intended beneficiary of a government contract.”

Robert S. Adelson, Note, Third Party Beneficiary &

Implied Right of Action Analysis: The Fiction of One

Governmental Intent, 94 Yale L. J. 875, 878 (1985). By

focusing on whether a particular legislative scheme

confers individual rights, the Court has dispensed

with this concern. Gonzaga, 536 U.S. at 283 (“[I]t is

rights, not the broader or vaguer ‘benefits’ or

‘interests,’ that may be enforced under the authority of

[Section 1983].” (emphasis in original)).

The

Restatement, published contemporaneously to and

consistent with Thiboutot, makes this point clear:

“Government contracts often benefit the public, but

individual members of the public are treated as

incidental beneficiaries unless a direct intention is

manifested.” Restatement (Second) of Contracts § 313

cmt. a. To determine whether a government contract

“was intended to create contractual rights in third

parties, the nature of the agreement, the identity of

the alleged intended beneficiaries and the specific

duty said to have been created toward them are all

factors” to consider. Reporter’s Note, id.

Even more to the point, it is unnecessary to draw

analogies to cases involving contractual or

quasicontractual claims because Thiboutot and

progeny directly address the issue of when Spending

Clause legislation is enforceable under Section 1983.

Spending Clause legislation is “much in the nature of

a contract,” but it is not identical to a private contract.

Pennhurst, 451 U.S. at 17. There is no need to resort

to common-law rules governing non-statutory claims.

II.

A bright-line rule barring all private

enforcement of Spending Clause legislation

would upend the vertical and horizontal

balances of powers and exacerbate harm

suffered by individuals when state actors

violate rights secured by federal law.

When Congress enacts Spending Clause

legislation, it operates within the

boundaries of this Court’s prior decisions.

1. Since deciding Thiboutot in 1980, the Court

consistently and correctly has reaffirmed that

Spending Clause legislation can give rise to federal

rights enforceable under Section 1983. The Court has

never withdrawn the general rule that individuals

may enforce “rights * * * secured by the * * * laws” of

the United States, including rights that are secured by

Spending Clause legislation. 42 U.S.C. § 1983.

Congressional enactments incorporate rules the

Court develops. The Court “presume[s] that Congress

expects its statutes to be read in conformity with this

Court’s precedents.” Clay v. United States, 537 U.S.

522, 527 (2003) (quoting United States v. Wells, 519

U.S. 482, 495 (1997)). “[I]t is not only appropriate but

also realistic to presume that Congress was

thoroughly familiar with [the Court’s] precedents,”

and it is similarly appropriate to read congressional

enactments “in conformity with them.” North Star

Steel Co. v. Thomas, 515 U.S. 29, 34 (1995) (quoting

Cannon v. Univ. of Chi., 441 U.S. 677, 699 (1979)).

Petitioners’ proposed bright-line rule threatens

the balance of constitutional powers.

Far from

“arrogating legislative power,” as Petitioners claim,

Pet. Br. 23–24 (quoting Hernandez v. Mesa, 140 S. Ct.

735, 742 (2020)), the Court’s longstanding recognition

of private enforcement in limited circumstances gives

necessary force to duly enacted federal policies,

Pereida v. Wilkinson, 141 S. Ct. 754, 766–67 (2021)

(“Only [Congress’s] policy choice, embodied in the

terms of the law Congress adopted, commands this

Court’s respect.”). Changing the rules now would pull

the rug out from under Congress’s feet and subrogate

Congress’s will to the Court’s. It would upend

legislative programs enacted in reasonable reliance

upon precedent—programs that improve the lives of

millions of Americans.

2. The Adoption Assistance & Child Welfare Act

of 1980 (“CWA”) provides a helpful case study of the

relationship between Congress and Court. Pub. L. 96272, 94 Stat. 500.

The CWA was enacted

contemporaneously with the Court’s decision in

Thiboutot and amended following later consistent

rulings. 2 Thus, the court’s precedents “reflect the

statute’s original meaning.” Baldwin v. United States,

140 S. Ct. 690, 694 (2020) (Thomas, J., dissenting from

denial of certiorari) (agencies’ interpretations of

statutes “around the time of the statute’s enactment

* * * might reflect the statute’s original meaning”).

The CWA’s history, text, and statutory design show

that, at times, Congress intentionally creates

individual rights enforceable under Section 1983

pursuant to its Spending power.

The CWA was enacted to increase federal

oversight of state foster care systems. Considering

ballooning numbers of children and youth in foster

care, Congress passed the CWA in 1980 to “modif[y]”

“the incentive structure of present law * * * to lessen

the emphasis on foster care placement and to

encourage greater efforts to find permanent homes for

children.” S. Rep. No. 96-336, at 1 (1979), as reprinted

in 1980 U.S.C.C.A.N. 1448, 1450. Audit results

2 For its part, Thiboutot was consistent with the weight of

prior Supreme Court and lower court decisions. Thiboutot,

448 U.S. at 4–5; see, e.g., Restatement (Second) of Contracts § 313

cmts. a-c (collecting cases in which third-party beneficiaries

successfully sued to enforce government contracts as of 1980); see

also Resp. Br. 5–8.

demonstrated “significant weaknesses in program

management which had adverse effects on the types of

care and services provided to foster children,”

including: licensure problems; mixing foster and

juvenile justice systems; and inadequate care plans

and eligibility determinations. Id. at 10–11, 1980

U.S.C.C.A.N. at 1460. Although many states had

subsidized programs to assist adoptive parents, only

“about 18,000 subsidized adoption placements had

been made” over the preceding 10 years, while over

500,000 children remained in some form of foster care.

Id.

Consistent with the CWA’s original purpose,

Congress continues to legislate to reduce states’

removal of children from families and to increase

timely and safe placements with permanent adoptive

families. In 1997, Congress passed the Adoption and

Safe Families Act, encouraging permanent placements

for children who could not be reunited with their birth

families, specifically when interstate placement is

available:

States cannot “den[y] or delay[] the

placement of a child for adoption when an approved

family is available outside of the jurisdiction with

responsibility for handling the case of the child.” Pub.

L. 105-89, § 202, 111 Stat. 2115 (1997). Most recently,

through the Family First Prevention Services Act of

2018, Congress provided federal funding for

prevention services through “the provision of mental

health and substance abuse prevention and treatment

services, in-home parent skill-based programs, and

kinship navigator services,” to prioritize keeping

families together and reducing placement in foster

care as the primary door to needed services. Pub. L.

No. 115-123, § 50702, 132 Stat. 132 (2018).

States may receive funds for foster care and

adoption assistance only if their programs work to

keep families intact and reduce harm to children

caused by frequent displacement. State programs also

must meet specific statutory criteria, including, inter

alia: development of individualized case plans and

reviews, 42 U.S.C. § 671(a)(16); non-race-based

placement criteria, id. § 671(a)(18); preference for

placement with relatives, id. § 671(a)(19); background

checks for foster and adoptive parents, id. § 671(a)(20);

health insurance coverage for children with special

needs, id. § 671(a)(21); due diligence in providing

notice and recitation of rights to eligible adult

relatives, id. § 671(a)(29); reasonable efforts to

maintain relationships between siblings, id.

§ 671(a)(31); protocols to report sex trafficking and to

locate missing children, id. § 671(a)(34) & (35); and

regular certification that the state will not implement

policies to “significant[ly] increase * * * the population

of youth in the State’s juvenile justice system,” id.

§ 671(37). While some provisions do not confer

sufficiently clear rights to be enforceable, others do.

See 42 U.S.C. § 1320a-2 (overriding the analysis in

Suter v. Artist M., 503 U.S. 347 (1992) without

disturbing the holding that a particular CWA

provision is unenforceable through Section 1983).

Participating states must submit a plan that

describes how they will meet the requirements in

federal law. The Department of Health and Human

Services Secretary must approve the state plan. But

the agency’s only enforcement mechanism is to cut off

federal funding, 42 U.S.C. § 671(b), “an extremely

drastic remedy. If used, it will likely help no one and

at the same time will destroy the program.” Lisa E.

Key, Private Enforcement of Federal Funding

Conditions Under § 1983: The Supreme Court’s

Failure to Adhere to the Doctrine of Separation of

Powers, 29 U.C. Davis L. Rev. 283, 292 (1996); see also

Eloise Pasachoff, Agency Enforcement of Spending

Clause Statutes: A Defense of the Funding Cut-Off,

123 Yale L. J. 248 (2014) (arguing for funding cutoffs

but agreeing that they are almost never deployed).

Children and youth in state custody are already

severely disadvantaged. See infra pp. 28–29. Existing

agency enforcement mechanisms do not protect

children from serious harms including abuse and

neglect, frequent displacements, improper healthcare,

and separation from siblings. U.S. Dep’t of Health &

Human Servs., Child & Family Servs. Reviews

Aggregate Report: Fiscal Years 2015–2018, iii, 10

(June 5, 2020). Even assuming for the sake of

argument that the agency would cut off funding and

that cutting off funding could improve child welfare

services over time, the intended beneficiaries of the

CWA would only suffer further harm in the interim:

cutting federal funding cannot remedy the immediate

violation of children’s individual rights secured by

federal law. But Section 1983 enforcement can.

By no means does the CWA “impliedly” rebut the

presumption of enforceability “by creating a

comprehensive

enforcement

scheme

that

incompatible with individual enforcement.”

See

Instead, the CWA

Blessing, 520 U.S. at 341.

anticipates and requires individual enforcement of

provisions that confer sufficiently specific rights. See

id. at 344–46 (courts must “separate out” individual

provisions to determine enforceability); also, e.g., N.Y.

State Citizens’ Coal. for Children v. Poole, 922 F.3d 69,

85 (2d Cir. 2019) (foster parents can sue to receive

payments the state has withheld); D.O. v. Glisson, 847

F.3d 374 (6th Cir. 2017) (same); Cal. State Foster

Parent Ass’n v. Wagner, 624 F.3d 974 (9th Cir. 2010)

(same); but see Mw. Foster Care & Adoption Ass’n v.

Kincade, 712 F.3d 1190 (8th Cir. 2013).

3. Congress did not legislate into a void when it

enacted the CWA in 1980 and again each time it

passed new laws improving protections for children

and youth. Congress operates in reliance on the

Court’s precedent and in response to failures in state

systems, crafting exhaustive statutory schemes

intended to benefit directly children and youth. The

Court cannot upend its precedent without also

upending validly enacted, comprehensive statutory

schemes.

When states elect to participate in

federal programs that grant rights

enforceable under Section 1983, they

knowingly and voluntarily accept the

risk of enforcement actions.

Congress understands the Court’s prior

decisions. So too do states that agree to participate in

federal programs. When states choose participation,

they cannot violate individual rights upon which that

participation is conditioned. Further, the history of

litigation under Section 1983 gives notice that

participation in Spending Clause programs carries

with it expectations and attendant consequences.

States are aware of the Court’s precedents and

the terms of federally funded programs—as evidenced

by 22 states’ participation in this case as amici curiae.

See Br. of Indiana and 21 Other States. Indeed, amici

National Conference of State Legislatures, et al. argue

that “future private actions” may cause “some States

[to] choose simply to opt out of receiving federal

funds”—i.e., states may decline to participate in

Spending Clause programs to avoid being sued. Br. of

Nat’l Conf. of State Leg. et al. at 5. That this has not

yet occurred—despite longstanding rules and

innumerable lawsuits—suggests that the Court is

being asked to sweeten the deal by modifying the

terms of existing agreements rather than clarify a

shared understanding of program requirements.

The only remedy for partial noncompliance with

most Spending Clause schemes is the withdrawal of

funding, which would raise new, significant concerns.

Nat’l Fed’n of Ind. Bus. v. Sebelius, 567 U.S. 519, 581

(2012) (opinion of Roberts, C.J.) (requirement that

states expand Medicaid or lose all funding is “a gun to

the head”); see also Sasha Samberg-Champion, Note,

How to Read Gonzaga: Laying the Seeds of a Coherent

Section 1983 Jurisprudence, 103 Colum. L. Rev. 1838,

1859 (2003) (explaining improbability of funding cuts).

Far better, then, that states face targeted enforcement

actions alleging specific infringements of specific

federal rights.

Individual enforcement of “rights * * *

secured by” Spending Clause legislation

is, at times, necessary to give effect to

legislation.

At times, Section 1983 is the only viable means to

enforce individual federal rights violated by state

actors. See supra pp. 24–25. When it comes to

children and youth, agency intervention will come far

too late to redress injuries against them and to ensure

future compliance with federally funded programs

before they age out of the system.

Children who experience hunger, abuse, neglect,

improper

medical

care,

and

unnecessary

institutionalization in their early years face lifelong

harm, including higher mortality rates, higher rates of

incarceration, lower rates of academic achievement,

higher rates of mental health disorders, increased

unemployment, and a greater probability of long-term

reliance on public benefit systems. See, e.g., E. Jason

Baron & Max Gross, Working Paper, Is There a Foster

Care-to-Prison Pipeline? Evidence from QuasiRandomly Assigned Investigators, Nat’l Bureau of

Econ. Res. (April 2022) 3 (short-term placement in

foster care followed by family reunification decreases

risk of adult crime); Children’s Bureau, U.S. Dep’t of

Health & Human Servs., Factsheet: Long-Term

Consequences of Child Abuse & Neglect (April 2019)4

(childhood maltreatment linked to poor physical and

mental health outcomes, causing individual and

3 Available at https://perma.cc/S32W-MKA7.

4 Available at https://perma.cc/S8UA-XTWD.

societal harm); Children’s Health Fund, Unfinished

Business: More than 20 Million Children in U.S. Still

Lack Sufficient Access to Essential Health Care

(November 2016) 5 (poor access to pediatric care

increases economic costs by worsening adult health

outcomes, interfering with school performance, and

reducing adult earnings); Greg Duncan et al., The

Importance of Early Childhood Poverty, Social

Indicators Research 108(1), 87-98 (2012) (childhood

poverty negatively affects future employment and

earnings), Peter J. Pecora et al., Improving Family

Foster Care: Findings from the Northwest Foster Care

Alumni Study (April 5, 2005) (adults who spent time

in foster care as children likelier than general

population to suffer from mental health disorders,

require public assistance, and be unemployed; shortterm stays, few displacements, and reunification

associated with better outcomes).

Delayed or non-existent system-wide agency

enforcement cannot fix these problems because it does

not address individual injuries, especially when that

injury is immediate.

In contrast, Section 1983

enforcement is responsive to deprivations of individual

rights, providing children and youth a route to secure

statutory rights designed to give them a chance to

escape poverty and lead fulfilling, productive lives.

Consider, for example, the federal Supplemental

Nutrition Assistance Program (“SNAP”). Through the

5 Available at https://perma.cc/7H6D-MRTA.

Food and Nutrition Act, 7 U.S.C. §§ 2011-2036d, 6

Congress intended to ameliorate hunger and

malnutrition in low-income households by increasing

their food purchasing power.

7 U.S.C. § 2011.

Approximately 10.2 percent of American families—

over 13.5 million households—lacked resources to feed

themselves adequately in 2021. Families with “very

low food security” constituted 3.8 percent of families,

or over 5 million households. Alisha Coleman-Jensen,

Matthew P. Rabbitt, Christian A. Gregory, and Anita

Singh, USDA Econ. Res. Serv., Household Food

Security in the U.S. in 2021, at 17 (Table 2)

(September 2022). 7 Children in these households

often face severe outcomes, including delayed mental

and physical growth, underperformance in school, and

behavioral and mental health disorders. Anna D.

Johnson & Anna J. Markowitz, Associations Between

Household Food Insecurity in Early Childhood,

89 Child Development, Issue 2, pp. e1-e17.

Because the harm caused by hunger is

immediate, Congress requires states to provide SNAP

benefits within thirty days of application for eligible

households, 7 U.S.C. § 2020(e)(3), and within seven

days for severely impoverished households, id.

§ 2020(e)(9). The thirty- and seven-day deadlines

“create * * * specific requirement[s] that must be

Effective October 1, 2008, the federal Food Stamp

Program was renamed the Supplemental Nutrition Assistance

Program, and the federal Food Stamp Act was renamed the Food

and Nutrition Act of 2008. Food, Conservation, and Energy Act

of 2008, Pub. L. No. 110-246, §§ 4001, 4002, 122 Stat. 1651,

1853-60.

7 Available at https://perma.cc/VYU3-7T92.

followed for every [SNAP] applicant, rather than a

generalized ‘policy or practice.’” Briggs v. Bremby, 792

F.3d 239, 244-245 (2d Cir. 2015). These statutory

mandates create a clear, enforceable federal right to

timely receipt of financial assistance funded by the

federal government for the direct benefit of individuals

living with hunger. Id. at 246; see also Barry v. Lyon,

834 F.3d 706, 716–18 (6th Cir. 2016) (federal law

“grants a right to food assistance to households that

meet federally-established eligibility criteria” and a

right to a due process hearing following denial of

benefits). When state systems fail, federal agency

oversight cannot timely correct or prevent individual

harms. See 7 U.S.C. §§ 2025(c)(1) (outlining federal

enforcement mechanisms, including withdrawal of

funding). Federal litigation is the only means to

enforce effectively Congress’s clear command that the

benefits it funds are provided to individuals at the

time of need.

Similarly, the Medicaid Act’s Early and Periodic

Screening, Diagnostic and Treatment (“EPSDT”)

benefit focuses on necessary interventions for

children’s mental, behavioral, and physical health.

Children and youth eligible for Medicaid are entitled

to vision, hearing, dental, and medical screenings,

including assessment of mental health development.

42 U.S.C. § 1396d(r)(1)-(4). States must provide all

“necessary health care, diagnostic services, treatment,

and other measures * * * to correct or ameliorate

defects and physical and mental illnesses and

conditions.” 42 U.S.C. § 1396d(r)(5). By design, the

benefit “is more robust than the Medicaid benefit for

adults and is designed to assure that children receive

early detection and care, so that health problems are

averted or diagnosed and treated as early as possible.”

Ctr. for Medicare & Medicaid Servs., EPSDT—A

Guide for States: Coverage in the Medicaid Benefit for

Children and Adolescents at 1 (2014).8 Thus, not only

does the EPSDT benefit improve outcomes for

individual children, it also reduces future costs for

taxpayers.

Compliance with EPSDT terms is not optional for

participating states. States accept federal funds

earmarked for children whose families cannot pay for

necessary healthcare services with full knowledge of

the program’s terms. And, despite successful Section

1983 litigation, the sky has not fallen, and states are

not turning down federal money. Instead, children

have received necessary medical care, and healthcare

systems have improved. See, e.g., Pediatric Specialty

Care, Inc. v. Ark. Dep’t of Human Servs., 443 F.3d

1005 (8th Cir. 2006), vacated on other grounds sub

nom., Selig v. Pediatric Specialty Care, Inc., 551 U.S.

1147 (2007); Westside Mothers v. Olszewski, 454 F.3d

532 (6th Cir. 2006); S.D. ex rel. Dickson v. Hood, 391

F.3d 581 (5th Cir. 2004); Antrican v. Odom, 290 F.3d

178 (4th Cir. 2002); S.R. v. Pa. Dep’t of Human Servs.,

309 F. Supp. 3d 250 (M.D. Pa. 2018); Cruz v. Zucker,

116 F. Supp. 3d 334 (S.D.N.Y. 2015); John B. v.

Emkes, 852 F. Supp. 2d 957 (M.D. Tenn. 2012);

Salazar v. Dist. of Columbia, 729 F. Supp. 2d 257

(D.D.C. 2010); Parents’ League for Effective Autism

Servs. v. Jones-Kelley, 565 F. Supp. 2d 895 (S.D. Ohio

8 Available at https://perma.cc/AM7C-DP5D.

2008); Carson P. ex rel. Foreman v. Heineman, 240

F.R.D. 456 (D. Neb. 2007).

***

Children enter this world and become uniquely

vulnerable through no fault of their own; they have

neither responsibility for nor control over many

aspects of their lives. When states assume the

responsibility of providing essential services and

care—including in custodial settings—children and

youth depend on them to meet their basic needs.

Recognizing the importance of state-operated childserving programs and the need for consistent

minimum standards, Congress has empowered states

to provide necessary services and has created

universal standards for federally funded programs.

Within some of these programs, Congress has secured

federal rights to individual children and youth.

Congress intended those rights to be enforceable.

CONCLUSION

Rights secured under the laws of the United

States should continue to be enforceable under

Section 1983.

Respectfully submitted.