Amicus Curiae Brief — Dennis v. Higgins

MARK E. DENNIS, PETITIONER

Vv.

MARGARET L. Hicoins, Director, NEBRASKA

DEPARTMENT OF MOTOR VEHICLES, ET AL., RESPONDENTS

On Writ of Certiorari to the Supreme Court of Nebraska

BRIEF FOR

AMERICAN TRUCKING ASSOCIATIONS, INC,

AS AMICUS CURIAE SUPPORTING POTITIONER

DANIEL R. BARNEY ANDREW L. FREY

RosBert Dicces, JR. KENNETH 8S. GELLER

LAURIE T. BAULIG ANDrReEw J. Pincus *

ATA Litigation Center Mayer, Brown & Platt

2200 Mill Road 2000 Pennsylvania Ave., N.W.

Alexandria, VA 22314-4677 Washington, D.C. 20006

(703) 838-1865 (202) 7780628

Of Counsel: * Counsel of Record

WiLuiaM 8. BuUSKER

American Trucking

Associations, Inc.

Wiheon . Gras Paiwrine Co.. Inc. - 188-0086 . Waeniweron, OC. 20001

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SUMMARY OF ARGUMENT ..........

ARGUMENT

SECTION 1983 ENCOMPASSES CLAIMS

SEEKING REDRESS FOR VIOLATIONS OF

THE COMMERCE CLAUSE |...

A. The Statutory Language And Legislative His-

tory Establish That Section 1983 Extends To

Commerce Clause Claims

The Meaning Of Section 1983

(iii)

12

21

iv

TABLE OF AUTHORITIES

Cases: Page

A.B.F. Freight System, Inc. v. Suthard, 681 F

Supp. 884 (E.D. Va. 1988) .............................--.--. 1

American Tobacco Co. Vv. Patterson, 456 U.S. 63

CC EE ee 10

American Trucking Associations, Inc. v. Scheiner,

NM 1,19

Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511

EE ome 20

Bell v. Hood, 327 U.S. 678 (1946) 00... 13

Bivens v. Six Unknown Named Agents of the Fed.

Bureau of Narcotics, 403 U.S. 388 (1971)... 14

Board of Governors Vv. Dimension Financial Corp.,

gg et Re AE x

Bowman V. Chicago & Northwestern Ry., 115 U.S.

ee 12

Bowsher Vv. Synar, 478 U.S. 714 (1986) 17

Carter v. Greenhow, 114 U.S. 317 (1885)... 11,12

Chapman Vv. Houston Welfare Rights Org., 441

NE 5-6, 12

Commonwealth of Kentucky Transp. Cabinet Vv.

American Trucking Associations, Inc., 746

Se 1

Consolidated Freightways Corp. Vv. Kassel, 730

F.2d 1139 (8th Cir.), cert. denied, 469 U.S. 834

LAS Ee ae eee x

Crandall vy. Nevada, 73 U.S. (6 Wall.) 35 (1867). 18

Crutcher Vv. Kentucky, 141 U.S. 47 (1891) 18

Davis Vv. Michigan Dep't of Treasury, 109 8. Ct.

LS 6, 17-18

Davis Vv. Passman, 442 U.S. 228 (1979) .. ... 18-14

Eli Lilly & Co. Vv. Medtronic, Inc., 58 U.S.L.W.

4838 (U.S. June 18, 1990) .......................... . +

Felder Vv. Casey, 487 U.S. 131 (1988) ................... 15

Garrity V. New Jersey, 385 U.S. 493 (1967) an 18

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) 18

Golden State Transit Corp. Vv. City of Los Angeles,

110 S. Ct. 444 (1989) passim

Hague Vv. CIO, 307 U.S. 496 (1939) | 11-12

Healy v. Beer Institute, Inc., 109 8. Ct. 2491

EIEN cnissstepsietindmemmmtpetin il dialaainaeiiaastanaitasuiliaaiiiem 19, 20

v

TABLE OF AUTHORITIES—Continued

Page

Kassel v. Consolidated Freightways Corp., 450

TE Aa ee 1

Lewis v. Continental Bank Corp., 110 8. Ct. 1249

ES SS TE Ne 2

Lynch Vv. Household Finance Corp., 405 U.S. 538

RN REE ey a a 5, 20-21

Maine V. Thiboutot, 448 U.S. 1 (1980) 6, 21

McGoldrick Vv. Berwind-White Co., 309 U.S. 33

he a Sn 2 sr 19

Monell v. Department of Social Services, 436 US.

ee 5

Newport News Shipbuilding & Dry Dock Co. v.

EEOC, 462 U.S. 669 (1988) 0. &

Nippert v. City of Richmond, 327 US. 416

SE 19

Patsy Vv. Board of Regents, 457 U.S. 496 (1982)... 15

St. Paul Fire & Marine Ins. Co. v. Barry, 438 U.S.

geet a ace a A 10

Synar v. United States, 626 F. Supp. 1374

(D.D.C.), aff'd sub nom. Bowsher v. Synar,

CI 17

United States v. Guest, 383 U.S. 745 (1966)... 15, 16

United States v. James, 478 U.S. 597 (1986)... 4,10

United States v. Locke, 471 U.S. 84 (1985)... 6

United States Vv. Munoz-Flores, 110 8. Ct. 1964

EISELE AESENEES ASSES a ne Pe ee 8,17

United States v. Price, 383 U.S. 787 (1966)... 5

United States v. Ron Pair Enterprises, 109 8. Ct.

ERNEST a el 6

Western Union Tel. Co. V. Kansas, 216 US. 1

SEES eR SE 18

Wilder Vv. Virginia Hospital Ass'n, 110 8. Ct. 2510

EE ene ater) eee 21

Will v. Michigan Dep't of State Police, 109 8. Ct.

2304 (1989) . 15

Wright v. City of Roanoke Redevelopment & Hous-

ing Auth., 479 U.S. 418 (1987) . : 13

Youngstown Sheet & Tube Co. Vv. Sawyer, 343 U. S.

579 (1962) ............. LE ae 8,17

vi

TABLE OF AUTHORITIES—Continued

Statutes and Rules:

Page

Judiciary Act of 1789, 1 Stat. 73.00.0000 5

Act of Feb. 5, 1867, 14 Stat.385.. 5

Act of March 3, 1875, 18 Stat.470... 15

SL 15

Sc ea 5

passim

2

2

Miscellaneous :

R. Stern, E. Gressman & 8S. Shapiro, Supreme

Court Practice (6th ed. 1986) 6

Cong. Globe, 42d Cong., Ist Sess. (1871) .... 7, 9-10

The Federalist (Mentor ed. 1981) 17, 19

3 The Records of the Federal Convention of 1787

(M. Farrand ed. 1987) 2.000000. 19

Webster's Third New International Dictionary

Ee 4

Iu the Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1555

MARK E. DENNIS, PETITIONER

v.

MARGARET L. HicGiIns, DIRECTOR, NEBRASKA

DEPARTMENT OF MOTOR VEHICLES, ET AL., RESPONDENTS

On Writ of Certiorari to the Supreme Court of Nebraska

BRIEF FOR

AMERICAN TRUCKING ASSOCIATIONS, INC,

AS AMICUS CURIAE SUPPORTING PETITIONER

INTEREST OF THE AMICUS CURIAE

American Trucking Associations, Inc. (ATA) is a

trade association of motor carriers, state trucking asso-

ciations, and national trucking conferences created to

promote and protect the interests of the trucking in-

dustry. ATA and its members frequently invoke 42

U.S.C. § 1983 in litigation challenging state action that

deprives them of their right under the Commerce Clause

to engage in interstate commerce free of unreasonable

burdens and unlawful discrimination. See, ¢., Amer-

ican Trucking Associations, Inc. Vv. Scheiner, 83 US.

266 (1987); Kassel v. Consolidated Freightways Corp.,

450 U.S. 662 (1981); A.B.F. Freight System, Inc. v.

Suthard, 681 F. Supp. 334 (E.D. Va. 1988) ; Common-

wealth of Kentucky Transp. Cabinet v. American Truck-

ing Associations, Inc., 746 S.W.2d 65 (Ky. 1988). They

accordingly have a substantial interest in ensuring that

the remedy set forth in 42 U.S.C. § 1983, and the con-

comitant entitlement to attorneys’ fees under 42 U.S.C.

§ 1988, extend to violations of that constitutional right.

ATA filed an amicus curiae brief in Lewis v. Continental

Bank Corp., 110 8. Ct. 1249 (1990), addressing the ques-

tion whether Commerce Clause claims are cognizable

under Section 1983.'

SUMMARY OF ARGUMENT

A. The language of 42 U.S.C. § 1983 is exceedingly

of the Commerce Clause. State action that transgresses

the Commerce Clause’s limitations upon state power de-

prives persons of their right to be free of burdensome

or discriminatory state regulation not authorized by

Congress.

Nothing in the legislative history of Section 1983 sug-

gests a different conclusion. The consistent theme of

the legislative debates was that Congress intended to

safeguard al/ of the rights conferred by the Constitution

by creating a federal court remedy for violations of those

rights. The legislative history thus confirms that the

statute should be interpreted in accordance with its plain

language.

B. Despite the broad wording of Section 1983 and the

evidence of expansive congressional intent, some lower

courts have concluded that Commerce Clause claims fal!

outside the scope of Section 1983 because in their view

the Commerce Clause does not secure “rights” within the

meaning of the statute. That view is somewhat puzzling.

No one contends that the Clause’s limitations upon state

authority are merely precatory or advisory; all agree

' Letters from the parties consenting to the filing of this brief

have been filed with the Clerk of this Court. See Sup. Ct. R. 37.

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liberty.” United States v. Munoz-Flores, 11

Co. Vv. Sawyer, 343 U.S. 579, 635 (1952) (Jackson, J.

historical record indicates that the Framers adopted the

Commerce Clause to protect individuals from unfair reg-

ulation by the states.

4

The rights conferred by the Commerce Clause affect

the liberty of American citizens to transact business on a

national scale, free from burdens imposed by local legisla-

tures that may be beholden to narrow, parochial inter-

ests. These rights are fundamental to the national citi-

zenship the Constitution was established to secure. They

surely are protected by Section 1983.

ARGUMENT

SECTION 1983 ENCOMPASSES CLAIMS SEEKING

REDRESS FOR VIOLATIONS OF THE COMMERCE

CLAUSE

A. The Statutory Language And Legislative History

Establish That Section 1983 Extends To Commerce

Clause Claims.

The starting point for all questions of statutory in-

terpretation is the language of the statute. The language

of Section 1983 makes clear that the provision encom-

passes claims grounded in the Commerce Clause. The

statute’s legislative history confirms that conclusion, es-

tablishing that Congress created a broad remedy for

violations of all rights conferred by the Constitution.

1. Section 1983 provides a remedy when a person act-

ing under color of state law deprives the plaintiff of

“any rights, privileges, or immunities secured by the

Constitution and laws” of the United States (emphasis

added). The term “any” generally means a thing “se-

lected without restriction or limitation of choice.” When

used as a modifier, as in Section 1983, “any” indicates

“the maximum or whole of a number or quantity.” Web-

ster’s Third New International Dictionary 97 (1986).

Congress’s choice of words establishes that this remedial

statute has the widest possible compass. “It is difficult

to imagine broader language.” United States v. James,

478 U.S. 597, 604 (1986).

Any lingering doubt about the very broad scope of Sec-

tion 1983 may be put to rest by comparing it to another

provision of federal law whose breadth cannot be doubted

5

—the statute governing this Court’s jurisdiction to review

state court judgments that rest on federal law. As it

stood at the time Section 1983 was enacted, that statute

authorized review by this Court in three categories of

cases, one of which was cases in which “any title, right,

privilege, or immunity [has been] claimed under the

constitution,” a federal law, or a treaty, and the deci-

sion was against the federal right. See Judiciary Act of

1789, 1 Stat. 73, 85, as amended by the Act of Feb. 5,

1867, 14 Stat. 385, 386. This language, which has been

retained in the present-day statute (see 28 U.S.C.

§ 1257), closely resembles Section 1983’s reference to

“any rights, privileges, or immunities secured by the

Constitution and laws.” This part of the jurisdictional

statute has long been recognized as exceedingly broad,

permitting the Court to review decisions with respect to

any conceivable constitutional claim, including one under

the Commerce Clause. See R. Stern, E. Gressman & S.

Shapiro, Supreme Court Practice 115 (6th ed. 1986).

The parallel language of Section 1983 should therefore

be interpreted to provide a remedy for the violation of

all rights conferred by the Constitution.

Indeed, this Court already has concluded that Section

1983 “must be given the meaning and sweep that * * *

lits] language dictate|s|”; the remedy extends to rights

secured by “all of the Constitution and laws of the United

States.” Lynch v. Household Finance Corp., 405 U.S.

538, 549 & n.16 (1972) (emphasis in original) (quoting

United States v. Price, 383 U.S. 787, 797 (1966)). See

also Golden State Transit Corp. v. City of Los Angeles,

110 S. Ct. 444, 448 (1989) (“[wle have repeatedly held

that the coverage of [Section 1983] must be broadly

construed”); Monell v. Department of Social Services,

436 U.S. 658, 700 (1978) (“there can be no doubt that

[Section 1983] was intended to provide a remedy, to be

broadly construed, against all forms of official violation

of federally protected rights”); Chapman v. Houston

Welfare Rights Org., 441 U.S. 600, 663 (1979) (White,

6

J., concurring) (Section 1983 “protect[s] against state

invasions of any and all constitutional rights”) (empha-

sis in original).

The language of the statute, the clearest guide for

ascertaining Congress’s intent, thus establishes that Con-

gress intended to encompass all claims alleging viola-

tions of rights secured by the Constitution—including

those grounded in the Commerce Clause—within the

scope of Section 1983. See Maine v. Thiboutot, 448 U.S.

1, 6-8 (1980) (refusing to limit Section 1983's plain

language) .

2. The breadth and clarity of the text of Section 198%;

eliminate any need to consult the provision’s legislativ>

history. See Davis v. Michigan Dep’t of Treasury, 109

S. Ct. 1500, 1504 n.3 (1989) (“[llegislative history is

irrelevant to the interpretation of an unambiguous stat-

ute”) ; United States v. Ron Pair Enterprises, 109 S. Ct.

1026, 1030 (1989) (“where, as here, the statute’s lan-

guage is plain, ‘the sole function of the courts is to en-

force it according to its terms’”) (citation omitted ) ;

United States v. Locke, 471 U.S. 84, 95-96 (1985). In

any event, the legislative history simply confirms that

en meant what it said when it enacted Section

There was no suggestion when Section 1983 was en-

acted that some constitutional rights were to be excluded

from the statutory remedy. Rather, the consistent theme

of the legislative debate was that Congress intended to

create a general remedy for violations of rights secured

by the Constitution. One Congressman stated:

2 Respondents assert (Br. in Opp. 9) that the Commerce Clause

does not create “rights” because its express language does not limit

state power, but this Court recently rejected the indistinguishable

argument that implied statutory rights are excluded from Section

1983. Golden State, 110 S. Ct. at 451 (“[t]he violation of a federal

right that has been found to be implicit in a statute’s language and

structure is as much a ‘direct violation’ of a right as is the violation

of a right that is clearly set forth in the text of the statute’).

7

The rights, privileges, and immunities of the Ameri-

can citizen, secured to him under the Constitution of

the United States, are the subject-matter of this bill.

They are not defined in it, and there is no attempt in

it to put limitations upon any of them; but what-

ever they are, however broad or important, however

minute or small, however estimated by the American

citizen himself, or by his Legislature, they are in

this law. The purpose of this bill is, if possible, and

if necessary, to render the American citizen more

safe in the enjoyment of those rights, privileges, and

immunities.

Cong. Globe, 42d Cong., Ist Sess. 475 (1871) (Rep.

Dawes) (emphasis added). See also id. at App. 68 (Rep.

Shellabarger) ; id. at App. 81 (Rep. Bingham); Monell,

436 U.S. at 683-686 (summarizing legislative history).

Congress expressly recognized that the remedy pro-

vided by Section 1983 would extend to violations of the

protections set forth in the original Constitution as well

as those conferred by the Bill of Rights and the Four-

teenth Amendment. Representative Dawes observed that

the Constitution adopted in 1789 secured rights, privi-

leges, and immunities “so peculiar that [the American

citizen] stood before the world a wonder and a marvel

among all the nations of the earth.” Cong. Globe, 42d

Cong., Ist Sess. 475 (1871). He stated that “when, in

addition to those privileges and immunities thus secured

to him,” one added the protections secured by the amend-

ments to the Constitution, he could “hardly comprehend | ]

the full scope and measure of the phrase which appears

in this bill.” Jbid. (emphasis added). These comments

make clear that the statute extended to both sets of con-

stitutional protections.

Other legislators also referred to provisions of the

original Constitution in describing the scope of the stat-

ute. See, e.g., Cong. Globe, 42d Cong., Ist Sess. 486

(1871) (Rep. Cook) (discussing the Contracts Clause).

Most significantly, nothing in the legislative history in-

dicates that Congress intended to treat rights conferred

by the original Constitution in general, or the Commerce

Clause in particular, any differently from those granted

by other provisions of the Constitution.

There is no doubt that Congress’s immediate concern—

and the principal focus of the legislative debate—was

the need to provide a remedy for the southern States’

failure to protect the newly-freed slaves against racially-

based violence instigated by the Ku Klux Klan. But, con-

trary to the view of some lower courts (see, ¢.g., Con-

solidated Freightways Corp. v. Kassel, 730 F.2d 1139,

1145-1146 (8th Cir.), cert. denied, 469 U.S. 834 (1984) ),

that fact does not “create a ‘negative inference’ limiting

the scope of [Section 1983] to the specific problem that

motivated its enactment.” Newport News Shipbuilding

& Dry Dock Co. v. EEOC, 462 U.S. 669, 679 (1983);

see also Eli Lilly & Co. v. Medtronic, Inc., 58 U.S.L.W.

4838, 4840 n.2 (U.S. June 18, 1990) ; Board of Governors

v. Dimension Financial Corp., 474 U.S. 361, 371 (1986).

Congress’s choice of general language, together with the

legislative history evidencing Congress’s broader intent,

establish that Congress intended to give the statute a

wider compass.

Some courts have excluded Commerce Clause claims

from Section 1983 in reliance on a single comment by

Representative Shellabarger, one of the principal spon-

sors of the statute, arguing that because he distinguished

between those provisions of the Constitution that “re-

strain and directly relate to the States” and those pro-

visions that “relate directly to the rights of persons

within the States,” his statement establishes that Section

1983 provides a remedy only for violations of the latter

category of constitutional provisions. See, e.g., Consoli-

dated Freightways, 730 F.2d at 1146 n.16. Viewed in

the context of the debate, however, it is clear that Rep-

resentative Shellabarger was not describing a limitation

upon the scope of Section 1983.

9

First, Representative Shellabarger was not even dis-

cussing the part of the 1871 statute that contained the

predecessor of Section 1983. He had completed his dis-

cussion of that portion of the bill (see Cong. Globe, 42d

Cong., 1st Sess. App. 68 (1871) ), which was contained in

Section 1, and turned to Section 2, which made it a fed-

eral crime to engage in a conspiracy “to do any act in vio-

lation of the rights, privileges, or immunities of another

person” that would constitute a federal crime in places

under the exclusive jurisdiction of the United States.

This provision differed from Section 1983 in that it was

not limited to rights, privileges, and immunities created

by the Constitution; Representative Shellabarger ex-

plained that Section 2 was intended to reach beyond the

rights recognized directly in the Constitution to protect

the “fundamental rights” that “inhere in citizenship,”

apparently on the theory that these rights were protected

by the Privileges and Immunities Clause. Jd. at App. 69.

A principal objection to the provision was that Con-

gress lacked the power to enact it, because it infringed

upon the powers reserved to the states by overriding

their authority to define and punish crimes. See, ¢.9.,

Cong. Globe, 42d Cong., 1st Sess. App. 45 (1871) (Rep.

Kerr). In responding to this argument, Representative

Shellabarger contended that Congress had the power to

enforce by legislation all provisions of the Constitution.

Id. at App. 69 (“Congress is bound to execute, by legis-

lation, every provision of the Constitution, even those

provisions not specially named as to be so enforced”).

Representative Shellabarger argued that the federal gov-

errynent had always assumed that it possessed the power

to enforce the parts of the Constitution that did not

expressly confer enforcement authority upon Congress.

He recognized, in the passage seized upon in support of

the narrow construction of Section 1983, that “[m]ost of

the provisions of the Constitution which restrain and

directly relate to the States” had been enforced by the

courts without federal legislation. Ibid.: see also id. at

App. 70 (absence of prior legislation reflected fact that

10

it had been deemed unnecessary, not that Congress lacked

the power to adopt it). But he noted that other consti-

tutional provisions limiting state authority—the Extra-

dition Clause, the Privileges and Immunities Clause, and

the Fugitive Slave Clause—had been enforced by federal

legislation. Id. at App. 69-70.

This affirmation of broad congressional power to create

remedies for violations of constitutional rights provides

no grounds for a narrow interpretation of Section 1983.

Representative Shellabarger’s comments had nothing to

do with his view of the scope of Section 1983; they were

an effort to show why the historical record supported his

theory that Congress had the power to enforce all of the

Constitution’s limits on state authority. His statement

that Congress in the past had found it unnecessary to

enact statutory remedies for violations of some of these

provisions does not provide any support for the view

that the Congress that enacted Section 1983 intended to

limit the scope of that new remedy. Indeed, to the extent

it is relevant at all, Representative Shellabarger’s com-

ment reveals an expansive view of Congress’s role in

providing remedies for violations of constitutional rights

that supports a broad interpretation of Section 1983.

Even if this “fragment[] of legislative history” could

be read to provide some support for a narrow interpre-

tation of the statute, and we believe it does not, it plainly

does not constitute “a clearly expressed legislative intent

contrary to the plain language of the statute.” American

Tobacco Co. Vv. Patterson, 456 U.S. 63, 75 (1982); see

also United States v. James, 478 U.S. at 612. “[I]f Con-

gress had intended to limit [the statute’s] scope * * * it

is not unreasonable to assume that it would have made

this [limitation] explicit.” St. Paul Fire & Marine Ins.

Co. v. Barry, 438 U.S. 531, 550 (1978). When a party

invokes legislative history to justify limiting statutory

language that is “broad and unqualified,” the legislative

history must provide “substantial support for limiting

language that Congress itself chose not to limit.” bid.

11

(footnote omitted). The legislative history of Section

1983 falls far short of this standard and accordingly

does not justify excluding Commerce Clause claims from

the unqualified scope of the statute.

3. Finally, nothing in this Court’s precedents supports

excluding Commerce Clause claims from Section 1983.

Some have suggested that the Court in Carter v. Green-

how, 114 U.S. 317 (1885), held that the Contracts Clause

does not secure rights within the meaning of Section

1983. See 87-1955 U.S. Am. Br. 19 n.19. Even if this

characterization of the decision were correct, Carter

would shed little light upon whether Section 1983 encom-

passes claims under an entirely different provision of the

Constitution. In fact, however, Carter does not stand for

that proposition.

The plaintiff in Carter sought to vindicate the con-

tractual right, conferred by an 1879 state statute, to pay

his state taxes with coupons from state bonds. The state

refused to accept the coupons, relying on a subsequently-

enacted statute that eliminated the payment right. This

Court observed that “[t]he rights alleged to be violated

are the right to pay taxes in coupons instead of in money,

and, after a tender of coupons, the immunity from fur-

ther proceeding to collect such taxes as though they were

delinquent. These rights the plaintiff derives from the

contract with the State, contained in the [1879 statute]

and the bonds and coupons issued under its authority.”

114 U.S. at 322. Because the plaintiff framed the case in

this manner, bringing the Contracts Clause into play

only in response to the State’s argument that a subse-

quent statute altered the plaintiff’s rights under the 1879

Statute, the Court concluded that the plaintiff had not

alleged the deprivation of a right secured by the Con-

stitution. As Justice Stone later observed, Carter “held

as a matter of pleading that the particular cause of ac-

tion set up in the plaintiff’s pleading was in contract and

was not to redress deprivation of the ‘right secured to

12

him by that clause of the Constitution’ [the contract

clause], to which he had ‘chosen not to resort.’” Hague

v. CIO, 307 U.S. 496, 527 (1939) (opinion of Stone, J.)

(emphasis added) ; see also Chapman v. Houston Welfare

Rights Org., 441 U.S. at 613 n.29 (relying on Justice

Stone’s explanation of Carter).

The same analysis applies to Bowman v. Chicago &

Northwestern Ry., 115 U.S. 611 (1885). It is not even

clear which provision of the Constitution was implicated

in that case, because the Court’s opinion is silent on that

question. In any event, the decision rests on the same

pleading technicality as Carter. Because the plaintiff al-

leged a violation of a right conferred by state law and

did not allege the deprivation of rights secured by the

Constitution, he failed to state a claim under Section

1983. See Chapman, 441 U.S. at 658-659 n.27 (White, J.,

concurring) (claims in Carter and Bowman were dis-

missed because the particular rights alleged to have been

infringed were not secured by federal law).

In sum, the language of Section 1983, the legislative

history, and this Court’s prior interpretations of that

statute all strongly favor construing Section 1983 to en-

compass claims resting on violations of the Commerce

Clause.

B. The Commerce Clause Creates “Rights” Within The

Meaning Of Section 1983.

Some lower courts have concluded that Commerce

Clause claims are not enforceable under Section 1983 be-

cause the Clause does not confer “rights” within the

meaning of that statute. See Pet. App. 5a-18a (discussing

decisions). Even if these courts were correct, Commerce

Clause claims would not be excluded from Section 1983,

because the statute prohibits the deprivation of “rights,

privileges, or immunities secured by” federal law. The

Commerce Clause surely confers a federal “privilege” to

engage in interstate commerce free of burdensome or dis-

13

criminatory state regulation and a federal “immunity”

from such state regulation. In any event, the benefits

conferred by the Commerce Clause do qualify as constitu-

tional rights cognizable under Section 1983.

Even the courts that deny that the Commerce Clause

creates “rights” do not and could not dispute that the

Commerce Clause creates enforceable obligations, for it is

settled that a plaintiff may obtain injunctive relief on the

basis of a claim grounded in the Commerce Clause. Com-

pare Wright v. City of Roanoke Redevelopment & Hous-

ing Auth., 479 U.S. 418, 423 (1987) (a statute does not

create rights within the meaning of Section 1983 when

the statute “indicat[es] no more than a congressional

preference—at most a ‘nudge in the preferred direc-

tio[n],’ * * * not * * * ris{ing] to the level of an en-

forceable right”) (citation omitted). Indeed, petitioner

obtained such relief in this case. See Pet. App. 3a.

Rather, the view of these courts is that the Commerce

Clause simply allocates power between the federal gov-

ernment and the states. Any benefit to individuals as a

result of this division of auhtority is “incidental,” and

therefore too attenuated to give rise to a right enforce-

able under Section 1983. That conclusion is wrong for

several reasons.

1. The well-settled principle that individuals injured

by state action violative of the Commerce Clause may

obtain injunctive and declaratory relief (see Bell v.

Hood, 327 U.S. 678, 684 (1946)) establishes that Com-

merce Clause claims also may be maintained under Sec-

tion 1983. These individuals are entitled to sue for in-

junctive relief because they are the beneficiaries of a

cause of action implied directly under the Commerce

Clause. The existence of that implied cause of action, in

turn, reflects the determination that such persons are

“appropriate part[ies] to invoke the power of the courts”

to remedy violations of the rights conferred by the Com-

merce Clause. “The concept of a ‘cause of action’ is em-

ployed specifically to determine who may judicially en-

14

force * * * rights or obligations.” Davis v. Passman,

442 U.S. 228, 239 (1979); see also Bivens v. Six Un-

known Named Agents of the Fed. Bureau of Narcotics,

403 U.S. 388, 400 (1971) (Harlan, J., concurring) (“a

federal court’s power to)grant even equitable relief [in

nondiversity cases] depends on the presence of a sub-

stantive right derived from federal law’’).

Recognition of an implied cause of action for injunctive

relief establishes that the relationship between the limits

on state authority imposed by the Commerce Clause and

the injuries suffered by an individual from a State’s vio-

lation of those limits is sufficient to permit that individ-

ual to bring suit to vindicate the constitutional right.

Because such persons are thus within “the class of liti-

gants * * * [that] may use the courts to enforce the

right at issue” (Davis, 442 U.S. at 240 n.18), they should

be entitled to bring suit under Section 1983 as well.

To be sure, Congress could have limited the right to

sue under Section 1983 to a class of persons narrower

than that entitled to sue directly under the Constitution,

but there is no evidence that Congress did so. Certainly

this Court has never recognized such a limitation on the

scope of Section 1983. And the statute’s broad language

provides no justification for that result. It imposes lia-

bility on every person who “subjects” another to “the

deprivation of any” right “secured by the Constitution

** *” Section 1983 does not by its terms require any

special relationship between the injured party and the

constitutional right.*

Moreover, construing the statute to limit the class of

potential plaintiffs would be inconsistent with its pur-

pose. Section 1983 was intended to provide a federal

8 For example, liability under the statute is not limited to persons

who deprive another of an “individual” right or of a right secured

“to him” by the Constitution.

15

forum for the vindication of federal rights because Con-

gress believed that the state courts were either unwilling

or unable to provide for effective enforcement of those

rights. See Will v. Michigan Dep’t of State Police, 109

S. Ct. 2304, 2309 (1989); Felder v. Casey, 487 U.S. 131,

147 (1988); Patsy v. Board of Regents, 457 U.S. 496,

503, 506-507 (1982). Congress could not have intended

to create a federal forum for all federal rights other

than those conferred by the Commerce Clause, relegating

the latter to the very state courts that had proven them-

selves inhospitable to federal claims. But, under the nar-

row construction of Section 1983 adopted by the Nebraska

Supreme Court, a plaintiff asserting a claim under the

Commerce Clause in 1872 would have had to bring his

lawsuit in state court. See Br. in Opp. 11-12.‘ That re-

sult is squarely inconsistent with Congress’s purpose in

enacting Section 1988. The fact that the Commerce

Clause indisputably confers a right on petitioner sufficient

to permit him to maintain an implied action directly

under the Commerce Clause thus establishes that the

Commerce Clause grants “rights” actionable under Sec-

tion 1983.

This Court’s decision in United States v. Guest, 383

U.S. 745 (1966), provides strong support for the con-

clusion that the Commerce Clause confers rights cogniza-

ble under Section 1983. One question in that case was

whether an indictment charging a conspiracy to deprive

citizens of the “right to travel freely to and from the

State of Georgia and to use highway facilities and other

instrumentalities of interstate commerce” stated a viola-

tion of 18 U.S.C. § 241, which criminalizes conspiracies

to intimidate the exercise of “any right or privilege se-

cured * * * by the Constitution.” Relying principally

upon the Commerce Clause as the source of the constitu-

tional right to travel, the Court upheld the indictment on

*The federal courts were not granted general federal question

jurisdiction until 1875. Act of March 3, 1875, § 1, 18 Stat. 470.

16

the ground that it alleged a conspiracy to deprive citizens

of a right secured by the Constitution. 383 U.S. at 757-

759. Guest confirms that the Commerce Clause secures

rights cognizable under Section 1983.

2. Excepting Commerce Clause claims from Section

1983 is wrong for the additional reason that the distinc-

tion between “structural” and “individual” rights is

wholly illusory. Indeed, the Court rejected such a cate-

gorical distinction in its decision last Term in Golden

State Transit Corp., holding that a preemption claim—

another type of federal right that the lower courts had

labeled “structural”—was cognizable under Section 1983.

The same result is appropriate here. The Framers did

not protect interstate commerce out of whim or caprice;

they intended to insulate individuals engaged in inter-

state commerce against discriminatory and unreasonable

state action in the same way that other provisions of the

Constitution protect individuals against various categories

of government action. That important protection certainly

constitutes a right within the meaning of Section 1983.°

The fundamental flaw in the argument is the assump-

tion that each provision of the Constitution may be de-

scribed as either creating rights or as allocating author-

ity in order to serve structural ends, but not both. In

fact, of course, a single provision of the Constitution can

serve both purposes at the same time. For example, the

protection of the Free Speech Clause typically is viewed

as conferring a personal right, but the right also is a

5 This Court’s determination in Golden State that the Supremacy

Clause does not create rights enforceable under Section 1983 has no

bearing on the status of Commerce Clause rights. The Supremacy

Clause “ ‘is not a source of any federal rights’; it ‘secure[s] federal

rights by according them priority whenever they come in conflict

with state law.’” Golden State, 110 S. Ct. at 449 (citation and

quotation marks omitted). The Commerce Clause, by contrast, is

indisputably a source of substantive federal rights. Indeed, it was

the source of the right that led to the invalidation of the state tax

statute challenged by petitioner in this case. Pet. App. 3a.

17

structural one, securing robust political debate in order

to promote the political well-being of the Nation.

The same is true of the Constitution’s more explicitly

structural provisions: “the Constitution diffuses power

the better to secure liberty.” Youngstown Sheet & Tube

Co. Vv. Sawyer, 348 U.S. 579, 635 (1952) (Jackson, J.,

concurring). The distribution of powers between the

States and the federal government, and among the

branches of the federal government, was intended in

large part to protect against majoritarian tyranny. See

The Federalist No. 51, at 321 (J. Madison) (Mentor ed.

1981); The Federalist No. 84, at 515 (A. Hamilton).

This Court has recognized that the separation of powers

doctrine protects individual rights. Bowsher v. Synar,

478 U.S. 714, 722 (1986); see also Synar v. United

States, 626 F. Supp. 1374, 1403 (D.D.C.), aff’d sub nom.

Bowsher v. Synar, 478 U.S. 714 (1986).

Just last Term the Court squarely rejected a similar

argument about “structural” rights, refusing to hold that

“compliance with the Origination Clause is irrelevant to

ensuring individual rights.” United States v. Munoz-

Flores, 110 S. Ct. 1964, 1970 (199C). The Court ob-

served that the Framers divided functions between the

two Houses of Congress on the basis of the “differing

characteristics of the entities,” but that “[a]t Th lati

the Framers’ purpose was to protect individual rights.”

Ibid. The power to raise revenue was allocated to the

“immediate representatives of the people’” because it

was “the most complete and effectual weapon’” for ob-

taining “a redress of every grievance, and for carrying

into effect every just and salutary measure.’” Ibid. (cita-

tion omitted). The Court concluded that “[p]rovisions

for the separation of powers within the Legislative

Branch are * * * not different in kind from provisions

concerning relations between the branches: both sets of

provisions safeguard liberty.” Ibid. (emph. «is in origi-

nal) ; see also Davis v. Michigan Dep’t of Treasury, 109

18

S. Ct. at 1507 (rejecting the State’s argument that an in-

dividual taxpayer could not claim the protection of the

intergovernmental tax immunity doctrine in seeking a

tax refund because the purpose of the doctrine was “to

protect governments and not private entities or individ-

uals”).

The right of individuals under the Commerce Clause

to participate in a national market free of discriminatory

or burdensome state regulation is also both a structural

rule, allocating regulatory authority between the federal

and state governments, and a personal right, freeing all

individuals from discriminatory state regulation not au-

thorized by Congress. While it is true that the Court on

occasion has characterized the Commerce Clause as a

structural provision of the Constitution, the Court also

has spoken in terms of an individual’s “right” to engage

in interstate commerce free of burdensome and discrimi-

natory state regulation.

As early as Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1,

211 (1824), Chief Justice Marshall recognized a “right”

of constitutional dimensions to engage in “intercourse be-

tween state and state.” Over the years, this Court has

had frequent occasion to reemphasize that the right “[t]o

carry on interstate commerce is not a franchise or a

privilege granted by the State; it is a right which every

citizen of the United States is entitled to exercise under

the Constitution and laws of the United States.”

Crutcher v. Kentucky, 141 U.S. 47, 57 (1891); see also

Garrity v. New Jersey, 385 U.S. 493, 500 (1967)

(“{t}here are rights of constitutional stature whose exer-

cise a State may not condition by the exaction of a price.

Engaging in interstate commerce is one”); Western

Union Tel. Co. Vv. Kansas, 216 U.S. 1, 48 (1910);

Crandall v. Nevada, 73 U.S. (6 Wall.) 35, 49 (1867).

The dual character of the Commerce Ciause is also

supported by the historical record. While the Framers

of the Constitution did refer to the need to prevent strife

among the states as one justification for conferring the

19

commerce power upon the federal government, they also

sought to protect individuals. Hamilton commented that

one of the adverse consequences of continued “interfering

and unneighborly regulation[]’ by the states would be

that “the citizens of each would at length come to be

considered and treated by the others in no better light

than that of foreigners and aliens.” The Federalist No.

22,jat 144-145 (Mentor ed. 1981) ; see also The Federalist

No. 42, at 268 (J. Madison) (referring to the “unfair-

[ness]” of extraterritorial state regulation); 3 The Rec-

ords of the Federal Convention of 1787, at 478 (M.

Farrand ed. 1937) (Commerce Clause prevented “in-

justice among the States themselves”).

Moreover, characterizing the Commerce Clause as

solely a “structural” provision of the Constitution simply

makes no sense. The Clause does not allocate power be-

tween the states and the federal government arbitrarily.

Like the Origination Clause, the Commerce Clause allo-

cates power in order to protect individual rights. It di-

vests the states of authority to discriminate against or

unjustifiably burden interstate commerce in the absence

of congressional authorization in order to protect persons

engaged in interstate commerce against unfair or dis-

criminatory regulation by states in which they have no

political voice. Nippert v. City of Richmond, 327 U.S.

416, 425-426, 434-435 (1946); McGoldrick v. Berwind-

White Co., 309 U.S. 33, 45 n.2 (1940). While Commerce

Clause principles often are referred to as protections for

“interstate commerce,” that abstraction is simply a short-

hand reference to the millions of individuals engaged in

interstate commerce who are the daily beneficiaries of

these rights. See, e.g., Healy v. Beer Institute, Inc., 109

S. Ct. 2491, 2499-2502 (1989) (discussing protections

afforded to merchants engaged in interstate commerce) ;

American Trucking Associations, Inc. Vv. Scheiner, 483

U.S. 266, 280-282 (1987).°

® The principles embodied in the Commerce Clause thus bear no

resemblance to rules that preempt state regulatory authority simply

20

Commerce Clause rights affect the liberty of American

citizens to transact business on a national scale, free from

burdens imposed by local legislatures that may be be-

holden to narrow, parochial interests. They are funda-

mental to the national citizenship that the Constitution

was established to secure. Indeed, “[t]he entire Constitu-

tion was ‘framed upon the theory that the peoples of the

several states must sink or swim together, and that in

the long run prosperity and salvation are in union and

not division.’” Healy, 109 S. Ct. at 2499 n.12 (quoting

Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511, 523

(1935)). These basic rights surely are protected by Sec-

tion 1983.’

3. Respondents assert (Br. in Opp. 11, 13) that Sec-

tion 1983 should not provide a remedy for violations of

“economic” rights. But this Court already has rejected

the contention that Section 1983 protects “personal”

rights and not property rights. As the Court remarked

in Lynch, 405 U.S. at 552, “the dichotomy between per-

sonal liberties and property rights is a false one. Prop-

erty does not have rights. People have rights. * * * [A]

fundamental interdependence exists between the personal

right to liberty and the personal right in property. Nei-

to “maintain[] uniformity in the administration of * * * federal

regulatory jurisdiction.” Golden State, 110 S. Ct. at 451. Rather,

the Commerce Clause limits state authority in order to protect

persons engaged in interstate commerce against discriminatory and

unreasonably burdensome regulation. Commerce Clause rules are

substantive principles, not simply rules of administrative con-

venience.

™The rights conferred by the Commerce Clause should not be

accorded lesser status because they may be overridden by congres-

sional action. The same is true of the rights secured by federal

“laws,” which indisputably can form the basis for an action under

Section 1983. As with statutory rights, the fact that Congress may

eliminate a previously-existing Commerce Clause right is irrelevant

when Congress has not acted. Such rights are fully enforceable as

long as they exist, and therefore are cognizable under Section 1983.

Golden State, 110 S. Ct. at 452.

21

ther could have meaning without the other. That rights

in property are basic civil rights has long been recog-

nized.”

Under this Court’s decision in Maine v. Thiboutot,

supra, federal statutes, including statutes that confer

economic benefits, create rights cognizable under Section

1983. See, e.g., Wilder v. Virginia Hospital Ass’n, 110

S. Ct. 2510 (1990). Indeed, the preemption claim at issue

in Golden State was attacked on the ground that it was

seeking to enforce an economic rather than a civil right,

but the Court nonetheless held the claim cognizable under

Section 1983. It would be anomalous indeed if the class

of constitutional provisions giving rise to Section 1983

claims were drawn more narrowly.

CONCLUSION

The judgment of the Supreme Court of Nebraska

should be reversed.

Respectfully submitted.

DANIEL R. BARNEY ANDREW L. FREY

ROBERT DIGGES, JR. KENNETH S. GELLER

LAURIE T. BAULIG ANDREW J. PINCUS *

ATA Litigation Center Mayer, Brown & Platt

2200 Mill Road 2000 Pennsylvania Ave., N.W.

Alexandria, VA 22314-4677 Washington, D.C. 20006

(703) 838-1865 (202) 778-0628

Of Counsel: * Counsel of Record

WILLIAM S. BUSKER

American Trucking

Associations, Inc.

July 13, 1990