§ 1983 and the Spending Clause

SCOTUS hears argument Tuesday in Health & Hospital Corp. v. Talevski, considering whether Spending Clause enactments (there, the Federal Nursing Home Reform Act of 1987 ("FNHRA")) can be enforced in damages actions under § 1983. I am covering the case for SCOTUSBlog; here is my case preview.

This is the latest in the Court's move to limit private rights of action, but with an important twist. The supposed separation of powers arguments driving limits on Bivens and implied statutory rights of action--Congress, not the courts, should make the policy choices and balancing of interests in creating private rights of action and Congress has not done so--do not apply. Congress made that choice in enacting 1983 as a free-standing cause of action and including the phrase "and laws" to allow plaintiffs to enforce statutory rights beyond constitutional rights. Not that I do not expect the Court to find some new means to its preferred end of limiting private litigation. Just that the recitation of separation of powers will not do it in this case.