Amicus Curiae Brief — Dennis v. Higgins

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QUESTION PRESENTED

Whether violations of the dormant Commerce Clause

are actionable under 42 U.S.C. § 1983.

(i)

TABLE OF CONTENTS

Gene

TABLE OF AUTHORTITIEB8.—U—

INTEREST OF THE AMICI CURIAE EEE

INTRODUCTION AND SUMMARY

Kk

r

VIOLATIONS OF THE COMMERCE CLAUSE

ARE NOT COGNIZABLE UNDER 42 USS.C.

V

A.

Federal Constitutional And Statutory Provisions

Secure Rights“ Within The Meaning Of Sec-

tion 1983 Only When They Are Designed For

The Special Benefit Of Individualss

. The Commerce Clause Does Not Secure “Rights”

Within The Meaning Of Section 19888

. The Legislative History Of Section 1983 Con-

firms That Power-Allocating Provisions Of The

Constitution Do Not Secure “Rights” Within

The Meaning Of The Statute

Allowing Commerce Clause Suits To Proceed

Under Section 1983 Would Dramatically Change

The Nature Of Commerce Clause Litigation

CONCLUSION ......... — ———

(iii)

Page

10

20

30

iv

TABLE OF AUTHORITIES

CASES Page

A & P Tea Co. v. Cottrell, 424 U.S. 366 (1976) 15

Association of Data Processing Service Organiza-

tions, Inc. v. Camp, 397 U.S. 150 (19700) 9

Attorney General v. Soto-Lopez, 476 U.S. 898

RES CE ee W -- 18

Bell v. Hood, 327 U.S. 678 (1946) 000. 9, 27

Bivens v. Six Unknown Named Agents of the Fed-

eral Bureau of Narcotics, 403 U.S. 388 (1971).. 9

Block v. Community Nutrition Institute, 467 U.S.

r a 8

Boston Stock Exchange v. State Tax Comm’n, 429

RE r 9,17

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

„ LAER ERNIE dy cee Reve me) RRM Ss SO 28

Brown v. Maryland, 25 U.S. (12 Wheat.) 419

(1827) -....... STEERS Caw eee wes AO OTE 11, 15

California v. Sierra Club, 451 US. 287 (1981)... 8,18

Carter v. Greenhow, 114 U.S. 317 (1888) 26, 27, 28

Clarke v. Securities Industry Ass’n, 479 U.S. 388

1%%%““ ² é—ʃ—x2ñ13 AA A 9

Confederated Salish & Kootenai Tribes v. Moe, 392

F. Supp. 1297 (D. Mont. 1975), aff'd on other

grounds, 425 U.S. 463 (1976)... 29

Connor v. Rivers, 25 F. Supp. 937 (N.D. Ga. 1938),

aff’d, 305 U.S. 576 (1939)))⸗) el. 3, 19, 20

Consolidated Freightways Corp. v. Kassel, 730

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

r Tree eeny nmr 20, 23

Continental Illinois Corp. v. Lewis, 838 F.2d 457

(11th Cir. 1988), vacated as moot, 110 S.Ct.

F ! 20

Cooley v. Board of Wardens, 53 U.S. (12 How.)

D T, 15

Corfield v. Coryell, 6 Fed. Cas. 546 (C.C.E.D. Pa.

EEA 22

Cort v. Ash, 422 U.S. 66 (1975)

Crandall v. Nevada, 73 U.S. (6 Wall.) 35 (1867).. 17

Crutcher v. Kentucky, 141 U.S. 47 (1891).............. 17

v

TABLE OF AUTHORITIES—Continued

Page

Davis v. Michigan Dep't of Treasury, 109 S.Ct.

11˙ 1 — 19

Davis v. Passman, 442 U.S. 228 (1979997 8,9

Edwards v. District of Columbia, 821 F.2d 651

I . eee 8

Edwards v. California, 314 U.S. 160 (1941)........ 17

Exxon Corp. v. Governor of Maryland, 437 U.S.

gf — 16

Fair Assessment in Real Estate Ass’n v. McNary,

Ee By SD ED siccetntnnnisngnientinenaninennaneen 30

Garrity v. New Jersey, 385 U.S. 493 (1967) 17

Georgia v. Private Truck Council, 371 S.E.2d 378

ß - e 20

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) ..15, 17, 21

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

. . passim

Hague v. CIO, 307 U.S. 496 (1939999 27

Hayes v. Michigan Central R. R. Co., 111 U.S. 228

cc 8

H. P. Hood & Sons, Inc. v. DuMond, 336 U.S. 525

r 15

Hughes v. Oklahoma, 441 U.S. 322 (197997 14-15

J & J Anderson, Inc. v. Town of Erie, 767 F.2d

. 20

Kennecott Corp. v. Smith, 637 F.2d 181 (3d Cir.

Fr 20

Kraft v. Jacka, 872 F.2d 862 (9th Cir. 1989 20

Leisy v. Hardin, 135 U.S. 100 (1890) ..................... 15

Lewis v. BT Investment Managers, Inc., 447 U.S.

D. ————————— 11

Martin-Marietta Corp. v. Bendix Corp., 690 F. 2d

CF ——— 20

Merrill Lynch, Pierce, Fenner & Smith v. Curran,

e 8

Metropolitan Life Insurance Co. v. Ward, 470 U.S.

FL SPR SRR SPS 16

Minnesota v. Cloverleaf Creamery Co., 449 U.S.

1 a Ses ee re 16

Monell v. New York City Department of Social

Services, 486 U.S. 658 (1978) 21, 22

vi

TABLE OF AUTHORITIES—Continued

Page

Monroe v. Pape, 365 U.S. 167 (19617777 25, 29

Morgan v. Virginia, 328 U.S. 373 (194) 17

Pennhurst State School & Hospital v. Halderman,

r / 16

Pesticide Public Policy v. Village of Wauconda,

622 F. Supp. 423 (N.D. Ill. 1985), aff’d, 826 F.2d

1... 000000 20

Pleasants v. Greenhow, 114 U.S. 323 (1885) 28

Private Truck Council v. Secretary of State, 503

PE RE a 20

Private Truck Council v. State, 584 A.2d 13 (N..

Super. Ct. 1987), aff’d, 544 A.2d 33 (N. J.

rr eC 20

Private Truck Council of America v. State, 517

A234 1160 (N.. 1906) ........................................... 20

Scott v. Donald, 165 U.S. 58 (1897))7)7)7 28

Shapiro v. Thompson, 394 U.S. 618 (1969) 17

Southern Pacific Co. v. Arizona, 325 U.S. 761

——17¶ AA vx 2 intima tata 11

United States v. Guest, 383 U.S. 745 (1966) 17, 18

United States v. Munoz-Flores, 110 S. Ct. 1964

e 18

Wardair Canada v. Florida Dep’t of Revenue, 477

Dr . ee re 15

Western Union Telegraph Co. v. Kansas, 216 U.S.

94 . ne ee ame 17

Western & Southern Life Insurance Co. v. State

Board of Equalization, 451 U.S. 648 (1981)........ 10-11

White v. Greenhow, 114 U.S. 307 (1885) 27-28

White Mountain Apache Tribe v. Williams, 810

F.2d 844 (9th Cir.), cert. denied, 479 U.S. 1060

2c 23

Wilder v. Virginia Hospital Ass’n, 110 S. Ct. 2510

K Se ee AE cee 3, 6, 7, 8, 9, 10

Wright v. Roanoke Redevelopment & Housing Au-

thority, 479 U.S. 418 (1987) 6, 7

vii

TABLE OF AUTHORITIES—Continued

CONSTITUTIONAL PROVISIONS: Page

Commerce Clause, U.S. Const. Art. I, § 8, cl. 3........ passim

Contracts Clause, U.S. Const. Art. I, § 10, el. 1. 26, 27

Equal Protection Clause, U.S. Const. Amend. XIV,

, SE TL ae ne a 16, 21

Extradition Clause, U.S. Const. Art. IV, § 2, cl. 2.... 23

Fugitive Slave Clause, U.S. Const. Art. IV, § 2, cl.

SS Ee eo a cee eee eee 23

Origination Clause, U.S. Const. Art. I, § 7, el. 1 18

Privileges and Immunities Clause, U.S. Const. Art.

ECE neee 18, 21, 22, 23

Privileges or Immunities Clause, U.S. Const.

e, ietueeiiseninen 18, 22

Supremacy Clause, U.S. Const. Art. VI, el. 2 7, 11, 16

STATUTES:

Act of Mar. 3, 1875, 18 Stat. (Pt. 3) 470 6, 26, 27

Civil Rights Act of 1866, 14 Stat. 27, Section 1. 24, 26

Civil Rights Act of 1871, ch. 22, 17 Stat. 128 20, 22, 23,

24, 25, 26

Civil Rights Act of 1871, 81ùù m2 24, 25

Declaratory Judgment Act, 28 U.S.C. § 2201 6, 28

Judiciary Act of 1789, 1 Stat. 73, as amended by

the Act of Feb. 5, 1867, 14 Stat. 3888 5

Tax Injunction Act, 28 U.S.C. § 1341444 30

e 28

e 17

r ... 5

. ..... ee 28

— 3, 4, 19, 26, 27

r 2233 UU 28

e ...... passim

LEGISLATIVE MATERIALS:

Cong. Globe, 42d Cong., Ist Sess. App. (1871)

(remarks of Rep. Bingham) ....................0.00......... 21

Cong. Globe, 42d Cong., Ist Sess. App. (1871)

(remarks of Rep. Burchard) 22

viii

TABLE OF AUTHORITIES—Continued

Pag:

Cong. Globe, 42d Cong., Ist Sess 486 (1871) (re-

CN 21

Cong. Globe, 42d Cong., Ist Sess. (1871) (remarks

r ͤ¶ V Te 21, 22

Cong. Globe, 42d Cong., Ist Sess. App. (remarks

, ce ae 21, 22

Cong. Globe, 42d Cong., Ist Sess. (1871) (remarks

gh SE EN ee 21, 22, 25

Cong. Globe, 42d Cong., Ist Sess. (1871) (remarks

of Rep. Shellabarger) —......................... 21, 22, 23, 24, 25

Cong. Globe, 42d Cong., Ist Sess. (1871) (remarks

r Oe ee 22

Cong. Globe, 42d Cong., Ist Sess. (1871) (remarks

r te 25-26

MISCELLANEOUS:

Abel, The Commerce Clause in the Constitutional

Convention and in Contemporary Comment, 25

Minn. L. Rev. 432 (1941) 11-12, 12, 14

Blackmun, Section 1983 and Federal Protection

of Individual Rights—Will the Statute Remain

Alive or Fade Away?, 60 N.Y.U.L. Rev. 1

cr 29

Collins, “Economic Rights,” Implied Constitutional

Actions, and the Scope of Section 1983, 77 Geo.

SS XK re 16, 26, 27, 28

Collins, Economic Union as a Constitutional Value,

63 N. V. U. L. Rev. 43 (1988) )))) 10

T. Cooley, Law of Torts (2d ed. 18889 8

The Federalist (Mentor ed. 1961)))7)7 3, 12, 14

r ..... 12

e an 12

r 13, 13-14

, eR 12, 13

. 13

Note, Development: Section 1983 and Federalism,

90 Harv. L. Rev. 1133 (1977) 22, 24, 29

The Records of the Federal Convention of 1787,

re 13, 14

IN THE

Supreme Court of the United States

OCTOBER TERM, 1990

No. 89-1555

MARK E. DENNIS,

v.

MARGARET L. HIGGINS, DIRECTOR,

NEBRASKA DEPARTMENT OF MOTOR VEHICLES, et al.,

Respondents.

On Writ of Certiorari te the Supreme Court of Nebraska

Petitioner,

BRIEF OF THE

NATIONAL CONFERENCE OF STATE LEGISLATURES,

U.S. CONFERENCE OF MAYORS,

NATIONAL GOVERNORS’ ASSOCIATION,

NATIONAL ASSOCIATION OF COUNTIES,

INTERNATIONAL CITY MANAGEMENT ASSOCIATION,

COUNCIL OF STATE GOVERNMENTS,

AND NATIONAL LEAGUE OF CITIES

AS AMICI CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE AMICI CURIAE

The amici are organizations whose members include

state, county, and municipal governments and organiza-

tions throughout the United States. They have a com-

pelling and continuing interest in the issue presented

here: whether Commerce Clause violations may be chal-

lenged under 42 U.S.C. § 1983. Amici and their mem-

bers do not mean to suggest by this that they wish to

evade their responsibilities under the Clause, which his-

torically has been enforced in state court and by means

2

of injunctive actions brought in federal court; their con-

cern, instead, is that the availability of attorney’s fees

in Section 1983 litigation may prompt meritless and ex-

pensive lawsuits aimed at discouraging creative regula-

tory and tax initiatives. For these reasons, amici submit

this brief to assist the Court in the resolution of this

case.'

INTRODUCTION AND SUMMARY OF ARGUMENT

1. Petitioner proposes an extraordinary change in the

way that Commerce Clause claims are litigated. Dor-

mant Commerce Clause actions most often are fought

out in state courts under state causes of action, as they

have been since early in the nineteenth century; the crea-

tion of general federal question jurisdiction late in that

century also allowed the assertion in federal court of

claims for injunctive relief grounded directly on the

Commerce Clause. But so far as we are aware, no plain-

tiff even attempted to use Section 1983 as a cause of ac-

tion to challenge Commerce Clause violations for more

than 100 years after enactment of the statute. Notwith-

standing this history, petitioner makes the surprising

contention that Section 1983 remedies are essential to

effectuate the Clause, candidly acknowledging that his

primary interest is in obtaining attorney’s fees.

Unfortunately, petitioner’s interest in fees has led him

to torture the language and history of Section 1983. The

centerpiece of petitioner’s argument is his assertion that

a plaintiff may invoke Section 1983 whenever he has

standing to complain of a violation of the Constitution.

But the concepts of standing and cause of action are

wholly distinct; the Court often has held that Congress

did not provide a cause of action to parties who were

injured by violations of the Constitution or federal statu-

1 The parties’ letters of consent have been filed with the Clerk

pursuant to Rule 37.3 of the Rules of this Court.

tory law. The Court’s decisions therefore indicate that

the crucial question here is whether the Commerce

Clause secures “rights” within the particular meaning

of that term as it is used in Section 1983. There is no

need to speculate on this: the Court has made quite

clear that the inquiry whether a constitutional or statu-

tory provision secures such “rights” turns, in relevant

part, “on whether ‘the provision in question was in-

tend led] to benefit the putative plaintiff.’” Wilder v.

Virginia Hospital Ass’n, 110 S.Ct. 2510, 2517 (1990)

(citation omitted).

On this, the historical evidence is overwhelming: the

Commerce Clause was designed to minimize conflicts be-

tween the States and to safeguard federal authority, not

to benefit particular individuals who engage in interstate

commerce. That comes clear from the debates at the

Constitutional Convention and the extensive discussions

of the commerce power in The Federalist. As a result,

this Court repeatedly has explained that the Clause was

designed to serve national rather than individual ends,

and expressly has indicated that the Clause protects

commerce rather than the individuals who engage in it.

Indeed, the Clause hardly can confer a personal entitle-

ment to trade freely between the States when its plain

terms grant Congress the authority to restrict the flow

of interstate commerce. It therefore is not surprising

that this Court long ago affirmed the judgment that the

Commerce Clause does not secure “rights” within the

meaning of 28 U.S.C. § 1343(3), Section 1983’s juris-

dictional counterpart. Connor v. Rivers, 25 F. Supp. 937

N. D. Ga. 1938), aff'd, 305 U.S. 576 (1939).

2. The conclusion that the Commerce Clause does not

secure “rights” within the meaning of Section 1983 is

confirmed by the statute’s legislative history. The pro-

ponents of Section 1983 themselves expressly distin-

guished between provisions of the Constitution that se-

cure “rights” and those that allocate power between the

States and the Federal Government; the Commerce

1

Clause plainly was understood to fall in the latter cate-

gory.

The propriety of that understanding is made doubly

clear by roughly contemporaneous actions of Congress

and decisions of this Court. Just four years after pass-

age of Section 1983’s predecessor, Congress used con-

siderably broader language in the statute creating gen-

eral federal question jurisdiction—a statute that, unlike

Section 1983’s jurisdictional counterpart, had an amount-

in-controversy requirement. If petitioner is correct in

contending that plaintiffs may rely on Sections 1983 and

1343(3) whenever they have standing to assert viola-

tions of the Constitution, the federal question statute

would have been unnecessary (and the jurisdictional

amount requirement nugatory) from the outset, at least

in constitutional litigation. The Court rejected this un-

likely conclusion in some of its earliest decisions involving

Section 1983’s predecessor, holding that cases involving

violations of power-allocating provisions “aris{e] under“

the Constitution within the meaning of the federal ques-

tion statute, but do not “secure rights” within the mean-

ing of Sections 1983 and 1343(3). There is no reason

for the Court to depart from that conclusion now.

ARGUMENT

VIOLATIONS OF THE COMMERCE CLAUSE ARE

NOT COGNIZABLE UNDER 42 U.S.C. § 1983.

Petitioner and its amici fundamentally misdirect the

inquiry in this case. Needless to say, we wholly agree

with petitioner’s vigorous assertion (Br. 19, 24) that he

has standing to contest violations of the Commerce

Clause that cause him injury. And we fully concur with

amicus American Trucking Associations, Inc. (“ATA”),

when it contends (Br. 5-7) that Section 1983 creates a

cause of action that may be used to challenge the vio-

lation of any “right” that is “secured by the Constitu-

tion.” But these contentions, in our view, are entirely

beside the point. As this Court’s decisions make clear,

the crucial question here -is whether the Commerce

Clause in fact does secure “rights” within the particular

meaning of that term as it is used in Section 1983. We

think it plain that the Commerce Clause does not create

such “rights.”

A. Federal Constitutional And Statutory Provisions Se-

cure “Rights” Within The Meaning Of Section 1983

Only When They Are Designed For The Special Bene-

fit Of Individuals.

The centerpiece of petitioner’s argument is his con-

tention that plaintiffs may invoke Section 1983 when-

ever they have standing to assert a violation of the Com-

merce Clause. See Pet. Br. 19, 24. But that contention

simply disregards the plain language of the statute.

Section 1983 does not, in terms, provide a cause of ac-

tion for the redress of all violations of all constitutional

provisions; instead, it comes into play only when there

has been a deprivation of “rights, privileges, or immuni-

ties secured by the Constitution and laws.”

In contrast, when Congress has wanted to write a stat-

ute that is broad enough to encompass all cases or con-

troversies involving violations of the Constitution, it has

known how to do so. It did just that (at least for a

limited category of suits) in Section 25 of the Judiciary

Act of 1789—reenacted just four years prior to the en-

actment of Section 1983’s predecessor—which authorized

this Court to hear appeals from decisions of state courts

upholding the validity of state statutes that were chal-

lenged “on the ground of their being repugnant to the

constitution * * of the United States.“ 1 Stat. 73, 85,

as amended by the Act of Feb. 5, 1867, § 2, 14 Stat. 385,

386 (emphasis added), codified at 28 U.S.C. 51257.“

2 ATA’s reliance (Br. 4-5) on the portion of the Judiciary Act,

also now codified at 28 U.S.C. § 1257, that authorizes review by

this Court in cases where “any title, right, privilege, or immunity”

ly broad approach shortly after

Section 1983, when it created federal jurisdic-

tion for “all suits of a civil nature at common law or in

equity * * * arising under the Constitution or laws of the

United States.” Act of Mar. 3, 1875, §1, 18 Stat. (Pt.

3) 470 (emphasis added). And it used similarly expan-

sive language in drafting the Declaratory Judgment Act,

28 U.S.C. § 2201 (emphasis added), which provides that,

„liln a case of actual controversy within its jurisdic-

tion * * * any court of the United States * * * may

declare the rights and other legal relations of any inter-

ested party.” But Congress declined to draw Section

1983 in such broad terms.

The Court accordingly has emphasized several times

that the reach of Section 1983, while substantial, is lim-

ited by its plain language: “ ‘Section 1983 speaks in

terms of “rights, privileges, or immunities,” not violations

of federal law.“ Wilder v. Virginia Hospital Ass’n, 110

S.Ct. 2510, 2517 (1990), quoting Golden State Transit

Corp. v. City of Los Angeles, 110 8.Ct. 444, 448 (1989)

(emphasis added by the Court). With this in mind, the

Court has drawn a precise test to determine whether any

particular constitutional or statutory provision secures

such rights. In relevant part, this “inquiry turns on

whether ‘the provision in question was intend[ed] to

benefit the putative plaintiff.” Wider, 110 S.Ct. at

2517, quoting Golden State, 110 S.Ct. at 448. See Golden

State, 110 S.Ct. at 449; Wright v. Roanoke Redevelop-

ment & Housing Authority, 479 U.S. 418, 430 (1987);

id. at 433 (O0 Connor, I., dissenting) .’

is claimed under the Constitution or federal law, therefore is mis-

placed. In fact, Commerce Clause claims generally have reached

this Court under the clause of the Act cited in the text.

The test for existence of a “right” actually has three parts:

“In deciding whether a federal right has been violated, we have

considered [1] whether the provision in question creates obliga-

tions binding on the governmental unit or rather ‘does no more

7

Under this approach, it is not enough that the provi-

sion at issue was drafted “with the interests of the gen-

eral public in mind” and therefore “benefits particular

parties only as an incident of the federal scheme of regu-

lation” (Golden State, 110 S.Ct. at 450); to maintain a

cause of action, the plaintiff must have been one of the

provision’s “intended beneficiaries.” Wilder, 110 S. Ct.

at 2517-2518. This rule of interpretation, it should be

added, applies both to constitutional and to statutory

provisions. That is made clear by the plain terms of

Section 1983, which treat the Constitution and federal

statutory law identically, and by the Court’s decision in

Golden State, whieh held that the provision of the Con-

stitution at issue—there, the Supremacy Clause—‘“does

not create rights enforceable under 1983.“ 110 S.Ct.

at 449.

This inquiry into the purposes served by the relevant

provision is a familiar one, for [whether a federal

statute confers substantive rights is not an issue unique

to § 1983 actions.” Wright, 479 U.S. at 432 (O'Connor,

J., dissenting). The first step in determining whether to

imply a private right of action under a federal statute,

for example, necessarily involves deciding whether the

provision creates] a federal right in favor of the plain-

than express a congressional preference for certain kinds of treat-

ment. * [2] The interest the plaintiff asserts must not be

‘too vague and amorphous’ to be ‘beyond the competence of

judiciary to enforce. * * * [3] We have also asked w

provision in question was ‘intend[ed| to benefit’ the putative

plaintiff. Golden State, 110 S.Ct. at 448. See Wilder, 110 S.Ct.

at 2517; Wright, 479 U.S. at 430, 432; id. at 432-433 O'Connor.

J., dissenting). The first two prongs of this test are not at issue

here. The Court also has made clear that, “even when the plaintiff

has asserted a federal right, the defendant may show that Congress

‘specifically foreclosed a remedy under § 1983’ * * * by providing

a ‘comprehensive enforcement mechanism] for protection of a fed-

eral right. Golden State, 110 S.Ct. at 448 (citation omitted).

There is no contention that Congress has done so here.

tiff,” a question that turns on whether the plaintiff is

one of the class for whose especial benefit the statute

was enacted.’” Cort v. Ash, 422 U.S. 66, 78 (1975)

(emphasis in original) (citation omitted). See Wilder,

110 S.Ct. at 2526 (Rehnquist, C. J., dissenting Cf.

Block v. Community Nutrition Institute, 467 U.S. 340,

346-348 (1984) (applying similar test to determine

persons. See, e. g., Hayes v. Michigan Central Co.,

111 U.S. 228, 240 (1884); T. Cooley,

(2d ed. 1888). See generally Merrill

ner & Smith v. Curran, 456 U.S. 353, 374-375 (1982).

Petitioner’s attempt to equate the existence of

of action under Section 1983 with standing to

violation of the relevant constitutional provision there-

fore is inconsistent with this Court’s decisions. And that

conclusion is hardly surprising. As a general matter, of

course, the concepts of standing and cause of action are

wholly distinct. See Davis v. Passman, 442 U.S. 228

239-240 n.18 (1979). Thus, to give just one related ex-

ample, a plaintiff who has suffered injury may have

standing to attempt implication of a right of action from

a federal statute, even if he ultimately is found not to

have a cause of action because Congress, in enacting the

i of

individuals.” California v. Sierra Club, 451 U.S. 287, 295

(1981). Indeed, in a setting very similar to this one, the

Court has made clear that even prudential limitations on

standing are more easily overcome than are the require-

congres-

* As Chief Judge Wald has noted, “where a separate

sionally created cause of action, § 1983, clearly exists, then

focus on whether the statute creates rights is appropriate, and

the value of the first Cort factor is retained.” Edwards v. District

of Columbia, 821 F 2d 651, 655 n4 (D.C. Cir. 1987) (opinion of

Wald, CJ.).

f

9

ments for stating a cause of action; the Court noted that

in the first prong of the Cort test which parallels the

“right” inquiry under Section 1983 —“ the Court was re-

quiring more from the would-be plaintiffs * * * than a

showing that their interests were arguably within the

zone protected or regulated by [the statute].” Clarke v.

Securities Industry Ass’n, 479 U.S. 388, 400-401 n.16

(1987).°

Similar problems inhere in the more sophisticated but

related argument offered by ATA, which suggests that

petitioner is entitled to invoke Section 1983 because

plaintiffs may seek injunctive and declaratory relief di-

rectly under the Constitution to remedy violations of the

Commerce Clause. ATA Br. 13-14, citing Bell v. Hood,

327 U.S. 678, 684 (1946); Bivens v. Six Unknown

Named Agents of the Federal Bureau of Narcotics, 403

U.S. 388, 400 (1971). In fact, “[s]tatutory rights and

obligations“ the type of rights created by Section

1983—“are established by Congress, and it is entirely

appropriate for Congress, in creating those rights and

obligations, to determine in addition who may enforce

them and in what manner.” Davis v. Passman, 442 U.S.

at 241. As the Court made clear in Wilder and Golden

State, Congress has done just that in Section 1983. In-

deed, as we explain more fully below (at 26-28), the

Court held over a century ago that, while claims grounded

directly on the Constitution may be brought into federal

court under the broad terms of the statue providing for

5 The so-called “zone of interest” prudential limitation on stand-

ing at issue in Clarke may be satisfied by a showing that the plain-

tiff’s claim is “‘arguably within the zone of interests to be pro-

tected or regulated by the statute or constitutional guarantee in

question.“ 479 U.S. at 396, quoting Association of Data Processing

Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970). Under

that test, “there need be no indications of congressional purpose to

benefit the would-be plaintiff.” Clarke, 479 U.S. at 399-400. The

Court applied the test in a state-court action under the Commerce

Clause in Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318,

320-321 n.3 (1977).

10

general federal question jurisdiction, Commerce Clause

claims may not be asserted under the narrower provi-

sions of Section 1983’s predecessor. This is only logical;

there is no reason to suppose that actions grounded di-

rectly on the Constitution to enjoin unconstitutional

state conduct, on the one hand, and congressionally cre-

ated actions for money damages, on the other, must be

identical in scope.

B. The Commerce Clause Does Not Secure “Rights”

With The Meaning Of Section 1983.

Against this background, the extensive argument by

petitioner (Br. 15-16) and ATA (Br. 5-7) that Section

1983 safeguards all federal “rights” plainly is circular,

since it begs the question whether the Commerce Clause

secures “rights” within the meaning of the statute. That

question must be answered by looking to whether individ-

uals like petitioner are “intended beneficiaries” of the

Clause. Wilder, 110 S. Ct. at 2517-2518. And on this,

the historical evidence is overwhelming: the Clause was

designed to minimize conflicts between the States and to

safeguard federal authority, not to benefit particular

individuals who engage in interstate commerce. “It is

elementary to show that the framers had no personal

rights focus when writing the commerce clause.

The framers’ concern with economic union arose from

conflicts among the states and problems of foreign trade,

not from disputes between the states and individual mer-

chants.” Collins, Economic Union as a Constitutional

Value, 63 N.Y.U.L. Rev. 43, 46 (1988).

1. At the outset, the Commerce Clause plainly does

not confer an entitlement, personal to the individual, to

trade freely between the States; it does not, after all,

“limit the authority of Congress to regulate commerce

among the several States as it sees fit,” or detract from

Congress’s authority to “‘confe[r] upon the States an

ability to restrict the flow of interstate commerce that

they would not otherwise enjoy.” Western & Southern

11

Life Insurance Co. v. State Board of Equalization, 451

U.S. 648, 652 (1981) (emphasis in original), quoting

Lewis v. BT Investment Managers, Inc., 447 U.S. 27,

44 (1980). Instead, like many of the other provisions

of Article I of the Constitution, the Commerce Clause

was designed to allocate regulatory authority “between

the national and the state governments” (Southern

Pacific Co. v. Arizona, 325 U.S. 761, 768 (1945) ), reflect-

ing what Chief Justice Marshall described as “the deep

and general conviction, that commerce ought to be regu-

lated by Congress.” Brown v. Maryland, 25 U.S. (12

Wheat.) 419, 446 (1827). Like the Supremacy Clause—

and unlike the statutory provision at issue in Golden

State—the Commerce Clause thus is “designed * * * to

answer the question whether state or federal regulations

should apply to certain conduct.” Golden State, 110 8.

Ct. at 451-452. And it emphatically is not “akin to a rule

that denies either sovereign the authority to abridge a

personal liberty.” Ibid. See id. at 455 (Kennedy, J., dis-

senting) (there is no right“ within the meaning of Sec-

tion 1983 when a federal statute “permits the [plaintiff]

to object only that the wrong sovereign has attempted to

regulate its [activities]’’).°

The origins of the Clause confirm that it was not de

signed to create personal entitlements. It is generally

agreed that, in the pre-constitutional period, the States

regularly used imposts as commercial weapons against

one another, while the Nation as a whole was unable to

respond effectively to discriminatory trade regulations

adopted by other countries. See Abel, The Commerce

Clause in the Constitutional Convention and in Contem-

porary Comment, 25 Minn L. Rev. 432, 448-449, 465-469

The disagreement between the majority and the dissent in

Golden State did not go to the proper interpretation of Section

1983; it turned, instead, on the narrow question whether particular

provisions of the National Labor Relations Act, 29 U.S.C. § 151

et seq., secure rights.“ Compare 110 S.Ct. at 450-452 with id. at

453, 455 (Kennedy, J., dissenting) .

12

(1941). Both of these themes were explored at length—

and offered as the sole rationales for giving Congress the

authority to regulate commerce—by Hamilton and Madi-

son in The Federalist, which offers by far the fullest con-

temporary account of the genesis of the commerce power.

See Abel, supra, 25 Minn. L. Rev. at 473.

In exploring the powers that should be conferred on

the Federal Government, Hamilton posed the question,

“what inducements could the States have, if disunited,

to make war upon each other?” The Federalist No. 7,

at 60 (Mentor ed. 1961) (hereinafter cited as “Fed-

eralist”). His answer, in part, was that (el ompetitions

of commerce would be [a] fruitful source of conten-

tion. * * * Each State, or separate confederacy, would

pursue a system of commercial policy peculiar to itself.

This would occasion distinctions, preferences, and exclu-

sions, which would beget discontent. * * he infrac-

tions of these regulations, on one side, the efforts to pre-

vent and repel them, on the other, would naturally lead

to outrages, and these to reprisals and wars.” Id. at 62-

63. See also Federalist No. 6, at 54 (listing “rivalships

and competitions of commerce” among “(t]he causes of

hostility among nations“). Hamilton expanded on this

concern in Federalist No. 22, explaining that

[t]he interfering and unneighborly regulations of

some States, contrary to the true spirit of the

Union, have, in different instances, given just cause

of umbrage and complaint to others, and it is to be

feared that examples of this nature, if not re-

strained by a national control, would be multiplied

and extended till they became not less serious

sources of animosity and discord than injurious im-

pediments to the intercourse between the different

parts of the Confederacy.

Id. at 144-145."

7 Hamilton’s remark that States might come to treat citizens of

other States like “foreigners and aliens,” cited by ATA (Br. 19),

13

For his part, Madison listed the Commerce Clause

among the powers “which provide for the harmony and

proper intercourse among the States,” explaining that

leaving regulation of commerce to the States “would

nourish unceasing animosities, and not improbably ter-

minate in serious interruptions of the public tranquility.”

Federalist No. 42, at 267, 268. Indeed, some years later

Madison declared that “it is very certain that [the Com-

merce Clause] grew out of the abuse of the power by

the importing States in taxing the non-importing, and

was intended as a negative and preventive provision

against injustice among the States themselves.” 3 The

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

Farrand ed. 1937) (letter from J. Madison to J.C. Ca-

bell, Feb. 13, 1829) (emphasis added). See also id. at

547-548 (Madison’s Convention notes indicating that

“want of a general power over Commerce * * * engen-

dered rival, conflicting and angry regulations”).

The other element motivating inclusion of the Com-

merce Clause in the Constitution was the conviction that

federal control over commerce would strengthen both the

Nation’s international pos tion and the strength of its

domestic economy, which in turn would assist foreign

commerce. The absence of federal supervision over com-

merce, Hamilton explained, “has already operated as a

bar to the formation of beneficial treaties with foreign

powers, and has given occasions of dissatisfaction be-

tween the States.” Federalist No. 22, at 144. See Fed-

eralist No. 11, at 84-89. And Hamilton emphasized the

value of free trade for a healthy economy:

An unrestrained intercourse between the States

themselves will advance the trade of each by an

was made during the course of this discussion, immediately after

his account of relations among the German principalities. Fed-

eralist No. 22, at 145. Hamilton’s point was that such actions

would engender animosity between States, not that individuals

should be entitled to favorable treatment for their own sakes.

14

interchange of their respective productions, not only

for the supply of reciprocal wants at home, but for

exportation to foreign markets. The veins of com-

merce in every part will be and will ac-

quire additional motion and vigor from a free cir-

culation of the commodities of every part. Commer-

cial enterprise will have much greater scope from

the diversity in the productions of different States.

* * * The speculative trader will at once perceive

the force of these observations, and will acknowl-

edge that the aggregate balance of the commerce of

the United States would bid fair to be much more

favorable than that of the thirteen States without

union or with partial unions.

Id. at 89-90.

Debate on the Commerce Clause at the Convention was

directed largely at the regulation of foreign commerce

and navigation. See Abel, supra, 25 Minn. L. Rev. at

446-448, 451-459, 465-466, 470. Interstate commerce re-

ceived remarkably little attention; the most authoritative

examination of the debates indicates that the subject

appears only nine times in the records of the Convention.

See id. at 470-471 & nn. 169-175, citing 2 M. Farrand,

supra, at 308, 360, 361, 418, 441, 451-452, 504, 588-589.

And all of these references, like the discussion in The

Federalist, were directed at the danger of friction and

discrimination between States. There was no mention

whatsoever of anything resembling an individual entitle-

ment to engage in interstate commerce.

Against this background, it is hardly surprising that

the Court has explained the Clause as a response to “a

central concern of the Framers that was an immediate

reason for calling the Constitutional Convention: the

conviction that in order to succeed, the new Union would

have to avoid the tendencies toward economic Balkaniza-

tion that had plagued relations among the Colonies and

later among the States under the Articles of Confedera-

tion.” Hughes v. Oklahoma, 441 U.S. 322, 325-326

mately to all of the States.” Wardair Canada v. Florida

Dep’t of Revenue, 477 U.S. 1, 8 (1986). See Brown, 25

U.S. (12 Wheat.) at 446; Gibbons v. Ogden, 22 U.S. (9

Wheat.) 1, 224-225 (1824) (Johnson, J., concurring).*

conferred by, fox.example, the Bill of Rights or the Civil

these latter provisions, explaining that the Commerce

In Cooley v. Board of Wardens, 53 U.S. (12 How.) 299 (1852)

the decision generally cited as the foundation of dormant Commerce

Clause doctrine (see A & P Tea Co. v. Cottrell, 424 U.S. 366, 270-371

(1976)), the Court grounded its conclusion that the Constitution

precludes certain forms of state regulation on the proposition that

“(whatever subjects of this [commerce] power are in their nature

national, or admit only of one uniform system, or plan of regulation,

may justly be said to have such a nature as to require exclusive

legislation by Congress.” Cooley, 53 U.S. (12 How.) at 319. At other

points, the Court has offered slightly varying theories to explain the

doctrine: that congressional authority over the regulation of com-

merce was meant to be exclusive (see, ¢.g., Gibbons, 22 U.S. (9

Wheat.) at 209; id. at 226-239 (Johnson, J., concurring) ); or that

Congress, by its silence, had indicated its intent to preclude state

legislation (see, e. g., Leisy v. Hardin, 135 U.S. 100, 109-110 (1890) ).

All of these theories were premised on the understanding that the

— was designed to allocate power rather than create individual

16

and Equal Protection Clauses “perform different func-

tions in the analysis of the permissible scope of a State’s

power—one protects interstate commerce, and the other

protects persons from unconstitutional discrimination by

the States.” Metropolitan Life Insurance Co. v. Ward,

470 U.S. 869, 881 (1985) (emphasis added) (footnote

omitted). This is so, of course, because the Commerce

Clause “ ‘protects the interstate market, not particular

interstate firms, from prohibitive or burdensome regula-

tions. Minnesota v. Clover Leaf Creamery Co., 449 U.S.

456, 474 (1981). See Exxon Corp. v. Governor of Mary-

land, 437 U.S. 117, 127-128 (1978). It is clear, then,

that “judicial enforcement of such [Commerce Clause]

limits on state government at the behest of private par-

ties no more secures an individual right for the purposes

of § 1983 than does in the context of the supremacy

the states and federal government.” Collins, “Economic

Rights,” Implied Constitutional Actions, and the Scope

of Section 1983, 77 Geo. L.J. 1493, 1550 (1989) (foot-

notes omitted).

2. In arguing to the contrary, petitioner (Br. 20-21)

and ATA (Br. 15-16, 18) point to occasional references

in this Court’s decisions to a “right” to engage in inter-

state commerce. But the Court’s use of the word “right”

in a different context hardly amounts to a determination

that the Commerce Clause secures “rights” within the

vision. Pennhurst State School & Hospital v. Halderman,

451 U.S. 1, 18 (1981). And the decisions cited by peti-

tioner and ATA, insofar as they discuss the purpose of

the Commerce Clause at all, confirm that it was designed

to allocate power and assure federal supremacy. See, e. g.,

17

Crutcher v. Kentucky, 141 U.S. 47, 58 (1891); Gibbons,

22 U.S. (9 Wheat.) at 209, 210. Otherwise, these deci-

sions stand only for the unexceptionable proposition that

the Clause may be asserted in state court, either offen-

sively or (more often) defensively, to challenge state

action that is inconsistent with the Constitution.’

See Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318,

320 n.3 (1977); Morgan v. Virginia, 328 U.S. 373, 376-377 (1946) ;

Edwards v. California, 314 U.S. 160, 170-173 (1941) ; Western Union

Tel. Co. v. Kansas, 216 U.S. 1, 48 (1910); Gibbons, 22 U.S. (9

Wheat.) at 211. Cf. Garrity v. New Jersey, 385 U.S. 493, 500

(1967) (dictum). ATA also cites (Br. 18) Crandall v. Nevada, 73

U.S. (6 Wall.) 35 (1867); in fact, however, that decision, which

involved the right to travel, rejected the contention that the

right could be found in the Commerce Clause and instead implied

it from the terms of the Constitution as a whole. See id. at 43-49;

compare id. at 49 (opinion of Clifford, J.) (disagreeing with Court

and placing right in the Commerce Clause). The only decision cited

by petitioner (Br. 21) and ATA (Br. 15-16) that provides even

arguable support for their position is United States v. Guest, 383

U.S. 745 (1966), which held that an indictment alleging a con-

of 18 U.S.C. § 241, one of Section 1983's criminal counterparts. See

383 U.S. at 757-758. In doing so, the Court observed that “freedom

to travel throughout the United States has long been recognized as

a basic right under the Constitution” (id. at 758), noting at least

one prior decision holding that the Commerce Clause protects inter-

state travel. See id. at 758-759, citing Edwards. But ATA’s sugges-

tion (Br. 15) that the Court “[rjel[ied] principally upon the Com-

merce Clause” as the source of this right is substantially over-

stated. To the contrary, the Court also relied on a number of other

cases, including Crandall, that had not been grounded on the Com-

merce Clause. See Guest, 383 U.S. at 757-758. And the Court con-

cluded that, “[a]lthough there have been recurring differences in

emphasis within the Court as to the source of the constitutional

right to interstate travel, there is no need here to canvass those

differences further. All have agreed that the right exists.” Id. at

759 (footnote omitted). This is an awfully thin reed on which to

hang the proposition that the Commerce Clause generally confers

an individual right to engage in interstate commerce. In fact, since

deciding Guest the Court several times has declined “to ascribe the

source of this right to travel interstate to a particular constitutional

provision” (Shapiro v. Thompson, 394 U.S. 618, 630 (1969) (foot-

18

Relying on United States v. Munoz-Flores, 110 S. Ct.

1964 (1990), petitioner (Br. 27-28) and ATA (Br. 17)

also contend that particular provisions of the Constitu-

tion may have been intended to serve dual purposes by

both allocating powers and protecting individual free-

doms. Needless to say, we agree: certain provisions may

well have been drafted with those two ends in mind.

As we explained above, however, the Commerce Clause

itself is not such a provision.“ Certainly, Munoz-Flores

is of no help to petitioner on this point. That decision

concerned an entirely different provision of the Constitu-

tion, the Origination Clause of Art. I, § 7, el. 1. More-

over, as a limitation on the operations of the Federal

Government, neither that Clause nor any other separation

of powers guarantee ever may be asserted in a Section

1983 action. And in any event, whether separation of

powers guarantees secure “rights” of the sort described

in Section 1983—an interesting question the answer to

note omitted)), noting that [it has been variously ascribed to

the Privileges and Immunities Clause of Art. IV, * * * to the

Commerce Clause, * * * and to the Privileges or Immunities Clause

of the Fourteenth Amendment.” Attorney General v. Soto-Lopez,

476 U.S. 898, 902 (1986) (plurality opinion). See id. at 920

(O'Connor, J., dissenting) (placing right in the Privileges and

Immunities Clause of Art. IV, § 2). The Court has since cited Guest

stitution.” Id. at 902 (plurality opinion).

9 Of course, the Commerce Clause—like every other provision of

the Constitution and every public law—ultimately was written “with

the interests of the general public in mind.” Golden State, 110 S.Ct.

at 450. But that sort of global purpose plainly does not create

19

which is by no means apparent—is wholly beside the

point in a case that turns on the meaning of the Com-

merce Clause.“

Indeed, when it has addressed the issue directly, the

Court rejected the contention that the Commerce Clause

creates “rights” within the meaning of Section 1983.

In Connor v. Rivers, 25 F. Supp. 937 (N.D. Ga. 1938),

aff'd, 305 U.S. 576 (1939), the plaintiff, asserting a

to 28 U.S.C. § 1343 (3), Section 1983’s jurisdictional

counterpart.“ A three-judge district court held itself

without jurisdiction to hear the case, explaining that,

“while there is an allegation about the [state] statute’s

interfering with interstate commerce, it is clear that

there is no claim or evidence that said [state] statute

deprives the petitioner ‘of any right, privilege, or im-

munity, secured by the Constitution of the United

1! Petitioner (Br. 28) and ATA (Br. 17-18) also rely on Davis

. Michigan Dep't of Treasury, 109 S.Ct. 1500, 1507 (1989). But

the Court’s holding there—that plaintiffs may take advantage of

the intergovernmental immunity doctrine in a state cause of action—

hardly amounts to a conclusion that the doctrine creates “rights”

within the meaning of Section 1983. To the contrary, Justice

Kennedy, author of the Court's opinion in Davis, has made clear

that, [from the earliest cases interpreting our constitutional law

to the most recent ones, we have acknowledged that a private party

can assert an immunity from state or local regulation on the ground

that the Constitution or a federal statute, or both, allocate the power

to enact the regulation to the National Government, to the exclusion

of the States.” Golden State, 110 S.Ct. at 452 (Kennedy, J., dis-

senting). But the injured party does not need § 1983 to vest in

him a right to assert that an attempted exercise of jurisdiction or

control violates the proper distribution of powers within the federal

system.” Id. at 453.

12 Section 1343(3) is in relevant part identical to Section 1983,

giving the district courts jurisdiction to entertain claims asserting

the deprivation “of any right, privilege, or immunity secured by

the Constitution of the United States * “ See Golden State, 110

S.Ct. at 449 n4.

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332-833 (1871) (remarks of Rep. Hoar); id. at 475

(remarks of Rep. Dawes); id. at 575 (remarks of Sen.

Thurman); id. at App. 69 ‘remarks of Rep. Sheila-

barger).”*

Indeed, the proponents of the Civil Rights Act of 1871

predecessor, introduced the bill, and was its floor man-

ager in the House (see Monell, 436 US. at 665, }

explained the distinction :

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State acts of encroachment on Federal powers.

Thus, and thus sufficiently, has the United States

“enforced” those provisions of the Constitution. But

some that are not of this class. These are

where the court secures the rights or the liabilities

of persons within the States, as between such per-

sons and the States.

Cong. Globe, 42d Cong., Ist Sess. App. 69 (1871) (em-

phasis added). As several courts of appeals have recog-

nized, “the implication of Rep. Shellabarger’s statement

is that § 1983 was enacted to provide a remedy for the

latter of constitutional violation he mentions,

and not the former.” Consolidated Freightways, 730

F.2d at 1146 n.16. See White Mountain Apache Tribe v.

Williams, 810 F.2d 844, 849 (9th Cir.), cert. denied, 479

U.S. 1060 (1987). See also Golden State, 110 S.Ct. at

454 Kennedy, J., dissenting) (Rep. Shellabarger “recog-

nized and explained the distinction’) .

Representative Shellabarger went on to explain that

there were three provisions of the original Constitution

that secure] the right or the liabilities of persons

within the States, as between such persons and the

States”—the Privileges and Immunities, Extradition,

and Fugitive Slave Clauses of Art. IV, § 2. Cong. Globe,

42d Cong., Ist Sess. App. 69 (1871). He noted that Con-

gress already had enacted legislation that, in one way or

another, enforced each of these provisions, “the only

three where the rights or liabilities of persons in the

States, as between these persons and the States, are di-

rectly provided for.” Jd. at App. 69-70. And in defend-

ing Congress’s authority to enact the Civil Rights Act

of 1871, he added:

I must not * * * be told, as an answer to my argu-

ment, that there is no legislation executing those

. 24

other provisions of the Constitution denying powers

to the States, as, for example, those providing that

no State shall make any law impairing the obliga-

tion of contracts or make treaties, and all those sim-

ilar prohibitions. The fact that there has been no.

legislation upon these subjects, as I have already

said, is simply because there has been no need of

any. The decision of the Supreme Court of the

United States, striking down the State laws which

attempted to invade those provisions of the Consti-

tution, ended the State legislation. But that would

not do where personal rights were invaded by the

States.

Id. at App. 70 (emphasis added).

This passage is doubly revealing. It confirms Represen-

tative Shellabarger’s view that power-allocating provi-

sions of the Constitution do not secure “personal rights.“

At the same time, Representative Shellabarger made

clear his understanding that “there has been no legisla-

tion upon these subjects.” Yet five years earlier, Con-

gress had enacted the Civil Rights Act of 1866, 14 Stat.

27, which was identical in scope to Section 1 of the Civil

Rights Act of 1871, Section 1983’s predecessor; the 1871

Act simply added civil remedies to the criminal penalties

created in 1866. See Note, supra, 90 Harv. L. Rev. at

1155-1156. Representative Shellabarger was aware of

this, of course, having himself just described Section

1983’s predecessor as being identical in its reach to the

1866 Act. See Cong. Globe, 42d Cong., Ist Sess. App. 68

(1871). He therefore must have been of the view that

neither the 1866 Act nor Section 1 of the 1871 Act

created a cause of action for violations of power-allocating

provisions of the Constitution.“

17 ATA contends (Br. 9-11) that Representative Shellabarger's

comments are not probative because they were delivered during his

defense of Section 2 of the Civil Rights Act of 1871, rather than as

part of his analysis of the companion Section 1, the predecessor of

Section 1983. In fact, however, three Justices already have found

his remarks an authoritative account of the purposes of Section

1983. See Golden State, 110 S. Ct. at 454 (Kennedy, J., dissenting).

25

This was hardly an idiosyncratic view, as petitioner

(Br. 3-34) and ATA (Br. 10-11) contend—which is

not surprising, given Representative Shellabarger’s lead-

ing role in shepherding the bill into law. Representative

Hoar, for example, in one of the few express references

to the commerce power in the debates, noted that t] he

powers given to Congress by the Constitution may be

classed under two general heads: powers given for the

protection of commerce, powers given for the protection

and preservation of the fundamental civil rights of man.”

Cong. Globe, 42d Cong., ist Sess. 333 (1871). He there-

fore specifically contrasted t] he protection and regu-

lation of commerc[e]” with “the provisions of our Con-

stitution for the protection of personal liberty and civil

rights.” Ibid. Similarly, Senator Trumbull explained

that

when the Constitution of the United States was

formed, it was formed for general purposes, for the

purpose of establishing a nation with national au-

thority, authority to make war, to conclude peace.

to make treaties, to regulate commerce between the

States and with foreign governments, and to do

various things of a national character; but the pro-

tection of the individual citizens was left to the

And they did so with good reason. The version of Section 2 dis-

cussed by Representative Shellabarger differed from Section 1 in

the remedies it offered rather than the rights it protected: it cre-

ated criminal penalties for acts “in violation of the rights, privi-

leges, or immunities of any person, to which he is entitled under

the Constitution and laws of the United States,” so long as the acts

in question would have been amounted to one of several specified

crimes if committed in a place under exclusive federal jurisdiction.

See Monroe v. Pape, 365 U.S. 167, 180-181 (1961). There is no

reason to doubt that the substantive scope of Sections 1 and 2—

in particular, the nature of the “rights” they described- were iden-

tical. ATA also notes that Representative Shellabarger’s remarks

were made during his defense of Congress’s power to enact Section

2. While correct, this observation is irrelevant: Representative

Shellabarger’s understanding of the nature of the various provisions

of the Constitution, and of the history of congressional attempts to

enforce them, surely bears on his understanding of the terms used

in the Civil Rights Act of 1871.

States, except that there is a clause in the Constitu-

tion of the United States which declares that the

citizens of each State shall be entitled to all the

privileges and immunities of citizens of the several

States.

Id. at 575.

2. This understanding that Section 1983’s predecessor

could not be used to challenge violations of power-

allocating provisions of the Constitution is confirmed by

roughly contemporaneous actions of Congress and deci-

sions of this Court. As we note above, just four years

after passage of the Civil Rights Act of 1871, Congress

created the general federal question jurisdiction for

suits “arising under the Constitution or laws of the

United States.” 18 Stat. (Pt. 3) 470. Congress pre-

sumably attributed some significance to its choice of

different—and broader—language for the federal ques-

tion statute than had been used in the predecessors to

Section 1983 and its companion jurisdictional provision,

28 U.S.C. § 1343(3). Moreover, while broader in scope

than Section 1983, the federal question statute required

satisfaction of a jurisdictional amount requirement. If

petitioner is correct in contending that plaintiffs may

rely on Sections 1983 and 1343(3) whenever they have

standing to challenge a violation of the Constitution, the

federal question statute would have been unnecessary

(and the jurisdictional amount requirement nugatory)

from the outset, at least in constitutional litigation. Con-

gress could hardly have intended to establish such a

scheme. See Collins, supra, 77 Geo. L.J. at 1553-1554.

And from the outset, this Court’s decisions made clear

that Congress had no such intention. In Carter v. Green-

how, 114 U.S. 317 (1885), one of the Court’s earliest in-

terpretations of the Civil Rights Act of 1871, the plain-

tiff attempted to assert a Contracts Clause violation un-

der Section 1983’s predecessor, alleging that a state stat-

ute impaired his contractual right to pay taxes in state-

issued coupons. The Court rejected the claim in language

strikingly similar to that used by Representative Shella-

— —

27

barger, stating that the Clause “so far as it can be said

to confer upon, or secure to, any person, any individual

rights, does so only indirectly and incidentally.” Id. at

322. The Court added that “{t]he mode in which Con-

gress has legislated in aid of the rights secured by that

clause of the Constitution, is * * * by conferring juris-

diction upon the Circuit Courts by the Act of March 3,

1875, ch. 137, 18 Stat. 470, of all cases arising under the

Constitution and laws of the United States. * * * Con-

gress has provided no other remedy for the enforcement

of this right.” 114 U.S. at 322-323. See id. at 323."

Because the plaintiff in Carter was unable to satisfy the

federal question statute’s jurisdictional amount require-

ment, his claim was dismissed. See id. at 320, 322-323.

At the same time, however, the Court allowed a vir-

tually identical companion casc to proceed because it

was grounded directly on the Contracts Clause and en-

tered federal court under the federal question statute

rather than the predecessor to Section 1343(3): the ac-

tion was an early version of the type of injunctive suit,

drawing its cause of action directly from the Constitu-

tion, that the Court later recognized in Bell v. Hood.

“The present action,” the Court explained, “as shown on

the face of the declaration, was a case azising under the

Constitution.” White v. Greenhow, 114 U.S. 307, 308

18 ATA maintains (Br. 11-12) that Carter was decided on a plead-

ing technicality. But there is nothing in the opinion to support this

proposition. The Court noted the allegations in the plaintiff’s com-

plaint that he had “ ‘the right under the Constitution of the United

States to pay his said taxes to the said defendant in the said coupons

and money, and that this right is secured to him by the Constitution

of the United States“ Carter, 114 U.S. at 319. As we indicate

above, the Court rejected this contention; its holding involved an

analysis of the nature of the “right” secured by the Contracts

Clause. See Collins, supra, 77 Geo. L. Rev. at 1518, 1535 n.221. The

portion of Justice Stone's opinion in Hague v. CIO, 307 U.S. 496,

527 (1939) (opinion of Stone, J.), relied upon by ATA was directed

principally at the meaning of the statutory term “secured by” and

not at the substance of the Contracts Clause. Cf. Golden State, 110

S.Ct. at 454 (Kennedy, J., dissenting).

(1885). These two cases in combination, as one com-

rr

tion statute to] pick ] up where § 1983

lins, supra, 77 Geo. L.J. at 1519. Cf. Pleasants

how, 114 U.S. 323, 323-324 (1885).

115 U.S. 611, 614-615 (1885), the plaintiff challenged,

apparently on Commerce Clause grounds, a state statute

that restricted interstate deliveries of liquor. See Collins,

supra, 77 Geo. L.J. at 1520. When unsuccessful in the

lower court, the plaintiff attempted to bring the action

to this Court under Rev. Stat. § 699 (1874), one of the

jurisdictional counterparts to Section 1983’s predecessor

that permitted appeals—without a jurisdictional amount

requirement—in suits involving deprivations of “any

right, privilege or immunity secured by the Constitu-

tion”; as in Carter, the plaintiff was unable to satisfy

the amount in controversy requirement of the general

federal jurisdiction statute. See 115 U.S. at 613-615.

The Court dismissed the appeal for want of jurisdiction,

explaining that [the case may be arising under the

Constitution, within the meaning of that term, as used

in other statutes, but it is not one brought on account of

the deprivation of a right, privilege or immunity secured

by the Constitution, within the meaning of this provi-

sion.” 115 U.S. at 615-616. Yet several years later, the

Court permitted an action brought directly under the

Commerce Clause when federal jurisdiction was premised

on the statute providing for federal question jurisdiction.

Scott v. Donald, 165 U.S. 58, 72-73, 100 (1897). See

Collins, supra, 77 Geo. L.J. at 1520-1521.

These decisions offer a persuasive contemporary read-

ing of Section 1983’s predecessor. And the distinction

they drew remains good law. Indeed, just last Term

Justice Kennedy, citing 28 U.S.C. §§ 1331, 2201, and

2202, noted that plaintiffs may seek “declaratory and

their

These statutes do not limit jurisdiction to those who can

show the deprivation of a right, privilege, or immunity

secured by federal law within the meaning of § 1983.”

Golden State, 110 S. Ct. at 455 (Kennedy, J., dissent-

ing). Petitioner’s reading would eliminate the distinc-

tions between these statutes.

D. Allowing Commerce Clause Suits To Proceed Under

We should add that petitioner’s approach would lead

to a dramatic change in the way that Commerce Clause

sence of diversity) fought out in the state courts under

state causes of action, and reached this Court on review

from those courts. See generally Blackmun, Section 1983

and Federal Protection of Individual Rights—Will the

Statute Remain Alive or Fade Away?, 60 N.Y.U.L. Rev.

1, 3-4 (1985). Most Commerce Clause cases still reach

the Court in that way. The creation of general federal

question jurisdiction in 1875 also allowed the assertion

in federal court of claims for injunctive or declaratory

relief grounded directly on the Constitution. But so far

as we are aware, no plaintiff even attempted to use Sec-

tion 1983 as a cause of action to challenge Commerce

Clause violations until over a century after enactment of

the statute.” This Court never has endorsed such a use

of Section 1983, and the lower courts, which have started

to address the issue only in the last few years, have

overwhelmingly rejected it. See notes 13, 14, supra.

Section 1983 was used sparingly for any purpose prior to the

Court’s decision in Monroe v. Pape, 365 U.S. 167 (1961). See Note,

supra, 90 Harv. L. Rev. at 1167-1169. And we are not aware of

any decision resting on the proposition that Commerce Clause claims

may be brought under Section 1983 prior to Confederated Salish &

Kootenai Tribes v. Moe, 392 F. Supp. 1297, 1304-1305 (D. Mont.

1975), aff'd on other grounds, 425 U.S. 463 (1976).

30

Against this background, petitioner’s contention (Br.

taxation; even prior to the enactment of the Tax Injunction Act.

principles of comity precluded federal courts from entertaining

such actions. See Fair Assessment in Real Estate Ass'n v. McNary,

454 U.S. 100, 107-109 (1981). Petitioner's suit therefore may pro-

ceed only if Congress meant Section 1983 to create a remedy that is

available exclusively in state courts. That is hardly likely. We

August 15, 1990

31

Respectfully submitted,

CHARLES ROTHFELD *

Acting Chief Counsel

BENNA RUTH SOLOMON

STATE AND LOCAL LEGAL CENTER

444 North Capitol Street, N.W.

Washington, D.C. 20001

(202) 638-1445

* Counsel of Record for the

Amici Curiae