V. Enforcement of Federal Statutes Under Section 1983

• Library: Sword and Shield: A Practical Approach to Section 1983 Litigation (ABA) (2015 Ed.)

V. ENFORCEMENT OF FEDERAL STATUTES UNDER SECTION 1983

Section 1983 authorizes the enforcement of federal constitutional rights and "laws" of the United States. Supreme Court decisional law interprets § 1983's reference to "laws" to mean that some federal statutory rights are enforceable under § 1983. In Maine v. Thiboutot,¹⁰¹ the Supreme Court rejected the argument that only federal statutes dealing with "equal rights" or "civil rights" are enforceable under § 1983. The Court in Thiboutot held that § 1983's reference to "laws" of the United States means what it says and, therefore, all federal statutes are enforceable under § 1983 against defendants who acted under color of state law. However, subsequent Supreme Court decisions substantially cut back the decision in Thiboutot by holding that not all federal statutes are enforceable under § 1983.¹⁰²

For a federal statute to be enforceable under § 1983, "a plaintiff must assert the violation of a federal right, not merely a violation of federal law."¹⁰³ The Supreme Court has identified three factors to determine whether a particular federal statutory provision creates a federal right:

First, Congress must have intended that the provision in question benefits the plaintiff.¹⁰⁴

Second, the plaintiff must demonstrate that the right assertedly protected by the statute is not so "vague and amorphous" that its enforcement would strain judicial competence.¹⁰⁵

Third, the statute must unambiguously impose a binding obligation on the States. In other words, the provision giving rise to the asserted right must be couched in mandatory rather than precatory terms.¹⁰⁶

The pertinent issue is not whether the federal statutory scheme creates enforceable rights but whether the specific federal statutory provision at issue creates an enforceable right.¹⁰⁷

If the plaintiff demonstrates that a federal statute creates an enforceable right, there is "a rebuttable presumption that the right is enforceable under § 1983."¹⁰⁸ Defendant has the burden of rebutting the presumption by showing that Congress intended to preclude enforcement under § 1983.¹⁰⁹ Congress may preclude enforcement under § 1983 either expressly or impliedly by creating a remedial scheme that is so comprehensive as to demonstrate a congressional intent to preclude enforcement under § 1983.¹¹⁰ A congressional remedy that is very specific and circumscribed may also imply a congressional intent to preclude enforcement under § 1983.¹¹¹

The most recent Supreme Court decisions concerning enforcement of federal statutes under § 1983 tightened up the standards.¹¹² For example, in Gonzaga University v. Doe,¹¹³ the Court stated that to create an enforceable federal statutory right, Congress "must do so in clear...