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Tennessee Law Review

Amanda B. Hurst

Document Type

Article

Abstract

Pursuant to its sweeping Spending Power, Congress will spend several hundreds of billions of dollars funding federal-state spending programs this year, which states must utilize in accordance with Congress's specifications-not unlike a "contract" according to the Supreme Court. But what if a state does not toe the line Congress drew, i.e. the State "breaches" its promise? The Supreme Court opened a door in Maine v. Thiboutot, the genesis of the personal rights doctrine, to allow beneficiaries to use 42 U.S.C. § 1983 to challenge state officials' violation of spending legislation. But almost from the doctrine's inception, the Court has stressed § 1983 enforceability is the exception-not the rule.

Gonzaga University v. Doe's stringent test and hostile tone pose a substantial obstacle to personal rights. In Gonzaga's immediate aftermath, legal scholarship addressed its scope and ambiguity. This Article offers an original comprehensive analysis of how the federal courts of appeals have dealt with Gonzaga in the ensuing sixteen years. By providing a novel synthesis of these cases, this Article uncovers the confusion Gonzaga has spawned both in and among the circuits, with almost every circuit exhibiting multiple approaches. Moreover, most circuit decisions deny Gonzaga its sea-change status by continuing to recite, and often apply, the Blessing factors that Gonzaga repudiated.

Several problems stem from this doctrinal confusion. Most obvious, the state of circuit law violates vertical and horizontal stare decisis principles, yielding unpredictability, inequity, and inefficiency. Another uncertainty is the validity of the Court's few cases allowing § 1983 enforcement, which Gonzaga discounted in part and approved in part; Gonzaga's progeny has only deepened this question. Finally, how far the Court is willing to take the contract analogy is unclear. Although the Court relies on it to deny § 1983 relief, the enforcement gap that results from the rarity and undesirability of agency funding cut-offs-the only means left for challenging state noncompliance reveals a "contract" formation problem because the state has merely made an "illusory promise." In addition, there is momentum among the justices for barring beneficiaries' § 1983 claims in total based solely on their third-party status under contract law. In sum, Gonzaga's ghosts of confusion regarding the governing standard, the health of prior cases, the validity of the contract analogy, and the relevance of contract law haunt the personal rights doctrine.

Publication Date

2019

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