When states receive funds from the federal government, strings are often attached. For instance, if states wish to receive Medicaid and Medicare funds, the Federal Nursing Home Reform Act1 (FNHRA) requires states to respect the rights of residents in state-licensed nursing homes.2 Under long-standing precedent, Spending Clause statutes like FNHRA can confer rights enforceable via suits under 42 U.S.C. § 1983.3 This past Term, in Health & Hospital Corp. of Marion County v. Talevski,4 the Supreme Court rejected an invitation to “reexamine” that doctrine.5 The petitioner urged the Court to adopt a contract law analogy that would have eliminated plaintiffs’ ability to invoke § 1983 to vindicate Spending Clause statute rights.6 The majority responded to that gambit by briskly brushing the theory aside.7 In the process, Talevski provided vital clarity on key issues that have been lingering for years, preserving a pathway for future plaintiffs to assert claims under § 1983 based on Spending Clause legislation. But Talevski also left some critical questions open, particularly one prompted by an emerging circuit split over the standard courts should use to determine if a statute confers § 1983–enforceable rights.
In January 2016, Gorgi Talevski’s family placed Gorgi in a government-run nursing home, Valparaiso Care and Rehabilitation (VCR).8 Soon after, his family noticed his faculties had drastically diminished.9 He stopped being able to feed himself or speak English, his second language.10 But the family soon realized that VCR, not Gorgi’s dementia, was to blame. They learned VCR had used drugs to “chemically restrain” Gorgi.11 After the Talevski family filed a complaint with the Indiana State Department of Health, VCR thrice temporarily transferred Gorgi to a hospital ninety minutes away.12 It did so without notifying his family.13 After the third transfer, VCR refused to accept Gorgi back.14 Instead, it involuntarily discharged him to a memory-care facility almost three hours away.15 The family filed a second complaint with the State Department of Health.16 When an administrative law judge ruled in the family’s favor, VCR refused to recognize the decision and readmit Gorgi.17
Through his wife, Ivanka,18 Gorgi Talevski sued the home under § 1983 in the United States District Court for the Northern District of Indiana.19 Talevski argued that VCR violated his rights under FNHRA by not “attain[ing] or maintain[ing] [his] highest practicable . . . well-being” as the statute required.20 Health & Hospital Corporation of Marion County (HHC) filed a motion to dismiss, arguing FNHRA did not create rights that could be vindicated via § 1983.21
The district court granted HHC’s motion to dismiss.22 The court relied on the factors the Supreme Court outlined in Blessing v. Freestone23 and “clarified” in Gonzaga University v. Doe.24 The court held that the statute focused on what nursing homes must do, and thus did not clearly confer an unambiguous right on their residents.25 And it found the rights asserted — which related to “quality of life” and “well-being” — were too vague and amorphous for the court to enforce.26
A unanimous panel of the Seventh Circuit reversed.27 Talevski on appeal had located more specific language in the statute that he argued gave him a right against “chemical restraints” and involuntary discharge absent notice and justification.28 Judge Wood29 relied on Blessing, which instructed courts to consider three factors: (1) whether Congress “intended that the provision in question benefit the plaintiff”; (2) whether the plaintiff could “demonstrate that the right assertedly protected . . . is not so ‘vague and amorphous’”; and (3) whether the provision conferring the right is “couched in mandatory . . . terms.”30 Each factor favored Talevski. Applying the first prong, Judge Wood argued “Congress could [not] have been any clearer”: it intended to benefit nursing home residents because the statute “explicitly use[d] the language of rights.”31 Second, the rights were sufficiently concrete because “[i]t does not take a medical review board to determine whether” a nursing home subjected residents to chemical restraints or involuntary discharges.32 Finally, the statute’s use of “must” made the rights phrased in mandatory terms.33
Judge Wood then addressed whether Congress “specifically foreclosed a remedy under § 1983.”34 The court found nothing in the statute, such as a private right of action, that suggested Congress did so.35 Finally, the court considered and rejected HHC’s “last-ditch effort to circumvent Blessing.”36 HHC posited that Spending Clause statutes cannot create § 1983–enforceable rights because they merely establish conditions on a state’s participation in a federal program.37 Judge Wood rejected this, arguing that the Supreme Court had never endorsed that reasoning.38
The Supreme Court, via Justice Jackson, affirmed.39 The majority first addressed HHC’s argument that the Court should overturn its precedent recognizing that Spending Clause statutes can “secure rights for § 1983 purposes.”40 Since Maine v. Thiboutot,41 the Court has held that § 1983 provides a cause of action for individuals to enforce rights secured by federal law, including Spending Clause laws.42 HHC urged the Court to find that “§ 1983 contains an implicit carveout” for Spending Clause laws.43 It argued the Court has already characterized Spending Clause legislation as “much in the nature of a contract” between the federal government and states.44 Under that analogy, then, HHC argued that individuals who benefit from Spending Clause statutes are like third-party beneficiaries to a contract, who could not sue to enforce contracts at common law when § 1983 became law.45 By HHC’s logic, Talevski, FNHRA’s “third-party beneficiary,” could not sue to force HHC to comply with its statutory obligations.46
But the majority “reject[ed] HHC’s invitation to reimagine Congress’s handiwork.”47 Under the Court’s precedents, § 1983 is interpreted against the backdrop of common law principles, but only “firmly rooted” ones.48 Petitioner’s third-party beneficiary theory —based in debatable history — was not firmly rooted.49 Moreover, the majority found contract law inapposite because, under the Court’s precedents, § 1983’s cause of action is a “species of tort liability.”50 The Court thus reaffirmed that the “laws” referenced in § 1983 do, in fact, mean all laws.51
Having established that the FNHRA provisions at issue could confer § 1983–enforceable rights, the majority then decided that they did.52 The Court also held that Gonzaga controlled the outcome of the case.53 To confer individual rights under Gonzaga, a provision must be “‘phrased in terms of the persons benefited’ and contain ‘rights-creating’ . . . language with an ‘unmistakable focus on the benefited class.’”54 The Court found this “demanding bar” met.55 First, the provisions “reside in” a section of FNHRA enumerating “[r]equirements relating to residents’ rights.”56 Second, they “require nursing homes to ‘protect and promote . . . [t]he right to be free from . . . chemical restraints’” and ban the “transfer or discharge [of a] resident” absent certain conditions.57 HHC argued that language in FNHRA focused on the regulated parties materially diluted this language focused on the beneficiaries.58 But the Court dismissed this as an “[im]material diversion” from the statute’s clear focus on nursing home residents’ rights.59
Finally, the majority rejected HHC’s contention that, regardless, Congress foreclosed relief under § 1983.60 Congress can overcome the “presumption” that a right is enforceable via § 1983 by implementing a “comprehensive enforcement scheme that is incompatible with individual enforcement under § 1983.”61 Though the statute contained administrative processes governing inspection and “accountability for noncompliant facilities,” it did not contain an “express private judicial right of action or any other provision that might signify that intent.”62 The majority thus reasoned that allowing plaintiffs to seek relief under § 1983 would complement, rather than undermine, FNHRA’s existing remedial scheme.63
Justice Gorsuch briskly concurred alone to draw out “lurking” anti-commandeering issues that were “questions for another day.”64
Justice Barrett also concurred, underscoring the limited reach of the Court’s opinion.65 Like Justice Jackson, Justice Barrett began by hastily dispensing with “petitioners’ novel contract-law theory.”66 She found no reason to abandon Thiboutot’s reading of § 1983’s plain text.67 Nonetheless, she urged courts to “tread carefully before concluding that Spending Clause statutes may be enforced through § 1983.”68 Gonzaga set a high bar that “many federal statutes will not [clear].”69
Writing alone, Justice Thomas dissented.70 He claimed the majority perpetuated a “constitutional quandary”71 by “unquestioningly follow[ing] Thiboutot’s logic.”72 The Court has long recognized that Spending Clause laws do not violate the anticommandeering doctrine only because they confer obligations on states via their acceptance of a contract with the federal government.73 By holding that Spending Clause laws could secure rights by law, the majority violated that doctrine in Justice Thomas’s eyes.74
Justice Alito also dissented, taking issue with the majority’s foreclosure analysis.75 He argued that because the statute “empowers” states to provide remedies for noncompliance, allowing plaintiffs to sue under § 1983 would circumvent the states’ authority to implement their own remedial regimes.76
Talevski could have been yet another in a consistent spate of decisions where the Court relied on the contract law analogy to limit plaintiffs’ ability to vindicate rights found in Spending Clause legislation.77 When plaintiffs have asserted an implied right of action to sue directly under these laws, the Supreme Court has embraced the contract analogy to limit the damages available for relief.78 But the majority dismissed out of hand the notion that the theory applied equally to § 1983.79 It devoted a mere six paragraphs to an idea that has been championed by scholars and advocates for more than twenty-five years.80 Instead, the majority reaffirmed prior cases recognizing a pathway for plaintiffs to establish that a law has granted them § 1983–enforceable rights. The result is a decision that provided needed answers to some vexing questions while deferring other critical ones. The decision clarified the stringency of Gonzaga’s “unmistakable focus” requirement, ensuring future plaintiffs seeking to assert § 1983–enforceable rights will still have a path to do so, even if that path is marked by rugged terrain. But the Court noticeably failed to rely on Blessing’s three-part test, perpetuating burgeoning confusion over whether Blessing remains good law.
The Supreme Court has long struggled to articulate a precise and comprehensible standard for lower courts to use in discerning whether a federal statute has endowed plaintiffs with rights enforceable via § 1983. It wasn’t until 1980 — over one hundred years after § 1983 was enacted — that the Court first held § 1983 provided a remedy for state violations of federal statutes.81 Almost immediately thereafter, doctrinal confusion ensued.82 The Court handed down a series of inconsistent decisions appearing to embrace different standards for determining when statutes conferred rights within § 1983’s ambit.83 This befuddled the lower courts, which struggled to decipher the applicable standard.84 In 1997, the Court took up the issue again in Blessing.85 Blessing derived from prior decisions a three-part test — which asked courts to balance whether (1) Congress intended to benefit the plaintiff, (2) the right is not vague or amorphous, and (3) the right is phrased in mandatory terms86 — finally producing ostensible doctrinal coherence.
But only five years later, in response to more circuit splits, the Court took up the issue yet again in Gonzaga.87 There, the respondent argued that Blessing stood for the proposition that “a federal statute confers [§ 1983–enforceable] rights so long as Congress intended that the statute ‘benefit’ putative plaintiffs.”88 The Court disagreed. It held that “it is rights, not the broader or vaguer ‘benefits’ or ‘interests,’ that may be enforced” under § 1983.89 Moreover, the Court emphasized that “[s]tatutes that focus on the person regulated rather than the individuals protected create ‘no implication of an intent to confer rights on a particular class of persons.’”90 Applying this more stringent standard, the Court argued that the statute at issue contained fatal wording: it lacked any “rights-creating language” and focused on the regulated party, rather than the beneficiaries, indicating Congress had no intent to confer an individual entitlement.91
But, in certain ways, Gonzaga muddled, rather than clarified, the doctrine. Following Gonzaga, it was an open question whether a statute that included “rights-creating language” and a directive to funding recipients to comply with that language was focused on the benefited class or the funding recipient.92 This confusion has contributed to a circuit split over whether § 672 of the Adoption Assistance and Child Welfare Act of 198093 gives foster care providers a right to assistance payments enforceable through § 1983.94 It specifies: “Each State with a plan approved under this part shall make foster care maintenance payments on behalf of each child.”95 The Ninth Circuit held that the provision “focuses squarely on the individuals protected, rather than the entities regulated” because it is “about payments ‘on behalf of each child.’”96 It ultimately concluded the statute confers a § 1983–enforceable right.97 So did the Sixth Circuit.98 It rejected the argument that when Congress “mak[es] the state the subject” of a Spending Clause statute mandate, “its focus is on . . . the regulated entity.”99 The Second Circuit reached the same conclusion as the Ninth and Sixth,100 declining to even entertain the notion that the statute was too focused on the states.101 But the Eighth Circuit concluded the opposite.102 Instead, it held that the language “speak[s] to the states as regulated participants” and is thus too “removed” from the interests of the providers.103
But post-Talevski, it could not be clearer: a statute can still have an “unmistakable focus” on the intended beneficiaries even if it also includes language directed at the regulated parties. The petitioners in Talevski urged the Court to hold that FNHRA was not sufficiently focused on the individuals protected by the statute — despite its repeated reference to nursing home residents’ “rights”104 — because it “direct[ed] . . . nursing facilities” to recognize those rights.105 This position would have made it virtually impossible for plaintiffs to assert rights under any Spending Clause legislation. As HHC pointed out, by its very nature, Spending Clause legislation typically contains language that directs funding recipients to comply with the statutory obligations.106
The majority cogently dispensed with the notion that any reference to the regulated party diluted the statute’s otherwise unmistakable focus on the intended beneficiary.107 Rather, it argued that the reference to funding recipients merely “establish[ed] who it is that must respect and honor” the beneficiaries’ rights.108 The Court took its criticisms a step further, arguing it would be “strange” to decide the statute “fail[ed] to secure rights” merely because the provisions also “consider[ed] . . . the actors that might threaten those rights.”109 It analogized the syntax and language of FNHRA to those of the Fourteenth Amendment, pointing out that the amendment “hardly fails to secure § 1983–enforceable rights because it directs state actors not to deny equal protection.”110 While much of the Supreme Court’s doctrine in this space has provoked confusion, the majority’s refreshingly clear assertion on this score will hopefully leave little room for ambiguity going forward.
Though Talevski crucially clarified ambiguities in Gonzaga’s “unmistakable focus” test, Talevski’s treatment of Blessing’s three-part test will likely perpetuate confusion concerning the standard courts should use in determining whether a statute creates § 1983–enforceable rights. This confusion has vexed lower courts since at least Gonzaga, where the Court left the validity of Blessing in question. There, the Court disavowed any language in Blessing that “might be read to suggest that something less than an unambiguously conferred right is enforceable by § 1983.”111 And it did not apply the three Blessing factors during its analysis.112 But Gonzaga stopped short of overturning Blessing altogether. The Blessing–Gonzaga muddle was thus born. Virtually all the circuits refused to read Gonzaga as repudiating Blessing.113 Many interpreted Gonzaga as merely glossing Blessing’s first prong114 and began applying this “Blessing–Gonzaga test” as controlling law.115 Others issued opinions that read Gonzaga as providing merely “principles” courts should keep “firmly in mind” as they apply the “Blessing test.”116
Despite two decades of this lower court Blessing–Gonzaga mélange, the Supreme Court in Talevski never once referenced Blessing’s three-part test. Applying what it called the “Gonzaga test,”117 the majority affirmed the Seventh Circuit while silently abandoning the very test the Seventh Circuit believed governed.118 Not once did the majority search the statute for lack of vagueness, like Blessing’s step two required, or mandatory language, as Blessing’s step three required. But only Justice Alito, in dissent, characterized the majority and Gonzaga as “rejecting” Blessing’s three-part test.119 Even Justice Barrett — who took great pains in her concurrence to reiterate the majority’s “three important points,” including that “Gonzaga establishes the standard for analyzing whether Spending Clause statutes give rise to individual rights” — failed to reject Blessing outright.120 It is thus likely that Talevski’s forceful embrace of Gonzaga will only confuse the doctrine more.121
Today a circuit split has emerged that squarely forces the question: What standard should courts use when determining if a statute vests plaintiffs with § 1983–enforceable rights? The split122 has emerged as circuits consider whether the Medicaid Act123 grants Medicaid patients a § 1983–enforceable right to a provider of their choice.124 Two circuits, the Fifth and the Eighth, concluded it does not in cases that failed to ever apply Blessing.125 These circuits relied in part on a 2015 case in which the Supreme Court claimed Gonzaga “repudiate[d] the ready implication of a § 1983 action” exemplified by Wilder v. Virginia Hospital Ass’n126 — the case upon which the Blessing test stood.127 Yet five other circuits found the Act confers a § 1983–enforceable right, applying some variant of Blessing–Gonzaga.128 Following Talevski, the Supreme Court granted a petition for a writ of certiorari presenting the question: What is “the proper framework for deciding when” a Spending Clause statute “give[s] rise to privately enforceable rights under § 1983[?]”129 And it remanded the case to the Fourth Circuit for reconsideration in light of Talevski.130 It remains to be seen whether that court and others will continue entertaining some Blessing-Gonzaga gloss — or if they will interpret Talevski’s silence toward Blessing as a repudiation of it once and for all.
The Court’s test for determining if a statute confers § 1983–enforceable rights has long lacked clarity. Presented with the opportunity to jettison the doctrine, the Talevski majority opted to preserve it. But the result is a mixed bag: Talevski clarified that Gonzaga’s “unmistakable focus” requirement won’t shut every door to relief, but the decision left the status of Blessing’s test noticeably unclear. While questions concerning Blessing are likely now the key issues plaguing this long-muddled area of the law, Talevski offered impactful doctrinal clarifications that ensure the path to establishing § 1983–enforceable rights remains open to future plaintiffs who are capable of surmounting the doctrine’s considerable hurdles along the way.