Securing fragile foundations: Affirmative constitutional adjudication in federal courts

New York University Law Review

Volumn 84, Issue 3, 2009, Pages 681-718

  Berzon, Marsha S ^a  

^a United States Court of Appeals for the Ninth Circuit ^*  (United States)

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EID: 68849103757     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (248)

1. William J. Brennan, Jr., The Bill of Rights and the States, 36 N.Y.U. L. REV. 761 (1961).
2. William J. Brennan, Jr., The Bill of Rights and the States: The Revival of State Constitutions as Guardians of Individual Rights, 61 N.Y.U. L. REV. 535 (1986).
3. Brennan, supra note 1, at 761-69.
4. Brennan, supra note 2, at 539-40, 546-48.
5. Id. at 550.
6. Id. at 552.
7. See, e.g., Williams v. Taylor, 529 U.S. 420 (2000) (considering the availability of habeas corpus in light of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1214)
8. Gonzaga Univ. v. Doe, 536 U.S. 273 (2002) (considering the standards for determining whether a federal statute creates "rights" within the meaning of 42 U.S.C. §1983)
9. Seminole Tribe v. Florida, 517 U.S. 44 (1996) (considering whether Congress has the power under the Indian Commerce Clause, U.S. CONST. art. I, § 8, cl. 3, to abrogate the states' Eleventh Amendment immunity from suit)
10. Hein v. Freedom from Religion, 127 S. Ct. 2553 (2007) (considering taxpayer standing to challenge executive branch expenditures).
11. U.S. CONST, art. III, § 1.
12. U.S. CONST. amends. I-X, XIII-XV.
13. Two exceptions are the writ of habeas corpus, U.S. CONST. art. I, §9, cl. 2, and the just compensation requirement, U.S. CONST. amend. V.
14. Affirmative suits to enforce statutory rights are another story, one I will address only tangentially in this lecture.
15. A note on terminology is in order: We tend to use the term "implied" cause of action in the context not only of suits to enforce statutory law but also suits to enforce constitutional norms. As sometimes happens, the now-accepted terminology has gotten in the way of clear thinking. As we all learned in grammar school, a speaker "implies" and a listener "infers." The term "implied" cause of action therefore suggests that the proper focus of judicial inquiry is to determine what the speaker-that is, the drafters of a statute or of the Constitution-intends. But as we shall see, to frame the matter that way is to beg the hard questions about the role of the judiciary in shaping affirmative constitutional litigation. So I am for the most part not going to use the phrase "implied cause of action"; I shall speak of "direct constitutional causes of action" and "nonexpress statutory causes of action" instead.
16. 347 U.S. 483 (1954) (Brown I);
17. U.S. 294 (1955) (Brown II).
18. 347 U.S. 497 (1954).
19. 403 U.S. 388 (1971).
20. At least two of the plaintiffs' complaints invoked 8 U.S.C. § 43, the predecessor to § 1983.
21. See, e.g., Complaint at 1, Davis v. County Sch. Bd., 103 F. Supp. 337 (E.D. Va. 1952) (Civ. A. No. 1333);
22. Amended Complaint at 1, Brown v. Bd. of Educ., 98 F. Supp. 797 (D. Kan. 1951) (Civ. No. T-316). But the plaintiffs' filings at the Supreme Court, once the cases had been consolidated, make no mention of § 43 as the basis for suit.
23. See, e.g., Statement as to Jurisdiction at 3, Brown v. Bd. of Educ., 347 U.S. 483 (1954) (No. 1), 1951 WL 82600 ("The asserted right to injunctive relief is based upon the unconstitutionality of Chapter 72-1724 [of the General Statutes of Kansas], in that the Fourteenth Amendment to the United States Constitution strips the state of power to either authorize or require the maintenance of racially segregated public schools.").
24. See Harry A. Blackmun, Section 1983 and Federal Protection of Individual RightsWill the Statute Remain Alive or Fade Away?, 60 N.Y.U. L. REV. 1, 19 (1985) (characterizing Brown as a § 1983 case-"[p]robably the most significant pre-Monroe case"-but noting that "[i]nterestingly, in the Court's opinion there is no citation of either § 1983 or of the [related] jurisdictional statute").
25. The federal district courts reversed in Brown similarly bypassed any inquiry into whether the plaintiffs had a cause of action under the Fourteenth Amendment or a statute in ruling against the plaintiffs' claims on the merits. Briggs v. Elliott, 103 F. Supp. 920 (E.D.S.C. 1952)
26. Davis v. County Sch. Bd., 103 F. Supp. 337 (E.D. Va. 1952)
27. Brown v. Bd. of Educ., 98 F. Supp. 797 (D. Kan. 1951).
28. 42 U.S.C. § 1983 (2000).
29. Today, § 1983 reads: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, except that in any action brought against a judicial officer for an act or omission taken in such officer's judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. Id.
30. At the beginning of the Brown litigation, § 1983's predecessor, 8 U.S.C. § 43, read: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress. 8 U.S.C. § 43 (1946)
31. see also 42 U.S.C. § 1983 (1952) (same text). The statute had been relegated to near-uselessness not long after its passage by a series of Supreme Court cases, beginning with the Slaughter-House Cases, that cabined the meaning of the Fourteenth Amendment's phrase "privileges or immunities of citizens of the United States" and adopted a similarly constricted interpretation of the concept of "state action."
32. See The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 75-80 (1873)
33. The Civil Rights Cases, 109 U.S. 3, 17 (1883). It was not revived until 1961, when the Court reconsidered the meaning of "under color of law" in Monroe v. Pape, opening up the possibility of suing state actors for unconstitutional acts. 365 U.S. 167 (1961). This sequence explains why §1983 was almost never used to sue state actors between 1871 and 1961.
34. See Blackmun, supra note 17, at 8-11 (1985);
35. Eugene Gressman, The Unhappy History of Civil Rights Legislation, 50 MICH. L. REV. 1323, 1357 (1952).
36. Whether an official acting "under color of District of Columbia law could be liable under 8 U.S.C. § 43-the predecessor to the current § 1983-was an open question at the time of Boiling. The Boiling plaintiffs' briefs did allege what they called "violations" of § 43 in conjunction with violations of the Fifth Amendment.
37. See Brief for Petitioners on Reargument at 4, Boiling v. Sharpe, 347 U.S. 497 (1954) (No. 8), 1953 WL 48705. They also argued that the phrase "any State or Territory" in § 43 included the District of Columbia.
38. Id. at 80-81.
39. The Supreme Court did not decide this question in Boiling, but later, in District of Columbia v. Carter, it concluded that the District of Columbia was not a "State or Territory" for § 1983 purposes. 409 U.S. 418 (1973).
40. It was not until 1979 that Congress revised what is now § 1983 to clarify that it applies to suits for actions taken "under color of [law]... of any State or Territory or the District of Columbia." Act of Dec. 29, 1979, Pub. L. No. 96-170, § 1, 93 Stat. 1284 (1979) (emphasis added).
41. In any event, the Boiling Court never mentioned the Civil Rights Act. The Court's very short opinion instead appears to have assumed that general federal question jurisdiction under § 1331 was all the congressional authorization needed. Boiling v. Sharpe, 347 U.S. 497 (1954).
42. Later, in Davis v. Passman, the Supreme Court explained that the Boiling "[p]laintiffs were clearly the appropriate parties to bring such a suit . . . [for] equitable relief," seemingly assuming that the Boiling plaintiffs indeed had a cause of action directly under the Constitution. 442 U.S. 228, 243 (1979).
43. Of course, courts in those years did not always use the phrase "cause of action" to explain what they were doing. That term has floated around for a long time, but it did not always have the relatively fixed meaning that it does today. Sometimes courts used the term " jurisdiction" in place of what we would today call a "cause of action" when speaking of a particular plaintiff's entitlement to sue for relief, and sometimes courts bypassed the modern cause-of-action inquiry altogether.
44. Judiciary Act of 1875, ch. 137, § 1, 18 Stat. 470, 470.
45. See, e.g., Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738,817-18 (1824) (holding that federal courts' jurisdiction over cases in which the Bank of the United States was a party had been conferred by statute).
46. 28 U.S.C. § 1331 (2006).
47. 22 U.S. (9 Wheat.) 738.
48. Id. at 844.
49. Ultimately, Osborn held the tax unconstitutional on the basis of McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), which rested on the Supremacy Clause.
50. Osborn, 22 U.S. at 867-68.
51. The decidedly corporate profile of the early litigants in equity is due in part to the fact that substantive constitutional law, as it had been interpreted by the courts up to that point, was protective largely of corporations' economic interests. Also, equity was viewed primarily as a mechanism to protect property rights and was relatively inhospitable to claims of civil rights and voting rights. In addition, corporations generally preferred to litigate in federal courts, which they viewed as more favorable fora than state courts of equity, and without juries, which did not exist in federal equity practice. Finally, anticipatory injunctive suits against state officers became so widespread after Ex Parte Young that some suits which might have been brought for retrospective damages, i.e. after the government official had performed an allegedly unconstitutional action, may have been obviated.
52. See Michael G. Collins, "Economic Rights, " Implied Constitutional Actions, and the Scope of Section 1983, 77 GEO. L.J. 1493, 1530-32 (1989) (discussing reasons for the prevalence of corporate litigants in federal courts).
53. Scott v. Donald, 165 U.S. 107, 108-09, 112 (1897).
54. Allen v. Bait. & Ohio R.R., 114 U.S. 311, 311-13 (1884).
55. Am. Sch. of Magnetic Healing v. MacAnnulty, 187 U.S. 94, 96, 98-99, 102 (1902).
56. Am. Sch. of Magnetic Healing, 187 U.S. at 108, 110
57. Scott, 165 U.S. at 114-15
58. Allen, 114 U.S. at 316-17
59. see Bell v. Hood, 327 U.S. 678, 684 & n.4 (1946) (citing nineteenthcentury cases and stating that "it is established practice for this Court to sustain the jurisdiction of federal courts to issue injunctions to protect rights safeguarded by the Constitution and to restrain individual state officers from doing what the 14th Amendment forbids the State to do" (footnote and citations omitted))
60. Walter E. Dellinger, Of Rights and Remedies: The Constitution as a Sword, 85 HARV. L. REV. 1532,1541 (1972) (noting a "settled practice of granting injunctive relief premised directly upon the Constitution")
61. see also City of Mitchell v. Dakota Cent. Tel. Co., 246 U.S. 396 (1918)
62. Phila. Co. v. Stimson, 223 U.S. 605 (1912)
63. Vicksburg Waterworks Co. v. Vicksburg, 185 U.S. 65 (1902)
64. Walla Walla v. Walla Walla Water Co., 172 U.S. 1 (1898)
65. Pennoyer v. McConnaughy, 140 U.S. 1 (1891).
66. Notably, the majority of cases in which the Supreme Court granted prospective relief to remedy a constitutional injury involved negative injunctions, ordering the defendant not to do, or to cease doing, a particular act. It was not until considerably later that the Court began regularly to approve affirmative prospective relief, requiring defendants to perform certain acts. See generally William A. Fletcher, The Discretionary Constitution: Institutional Remedies and Judicial Legitimacy, 91 YALE L.J. 635 (1982).
67. 209 U.S. 123 (1908).
68. Because the primary focus of my remarks-direct constitutional causes of action against government officials in their private capacity-does not directly implicate Eleventh Amendment or sovereign immunity concerns, discussion of those complex subjects would be a distraction. I therefore do not address them.
69. John Harrison, Ex Parte Young, 60 STAN. L. REV. 989, 993 (2008).
70. Id. at 992-93.
71. Young, 209 U.S. at 143-45.
72. Id. at 148.
73. Id. at 168.
74. See Louisville & Nashville R.R. v. Mottley, 211 U.S. 149,152-53 (1908) (explaining that for § 1331 jurisdiction to apply, it must be clear from the face of the plaintiffs complaint that the action involves a federal question; it is not enough for the federal question to arise as a response to an anticipated defense)
75. see also Collins, supra note 28, at 1514 (noting that the well-pleaded complaint rule "was not fully in force prior to Mottley," although it had been applied as early as 1888).
76. In cases at law, claims, defenses, and answers to defenses were traditionally broken out into a series of responsive filings, which were submitted consecutively to the court.
77. See Alfred Hill, Constitutional Remedies, 69 COLUM. L. REV. 1109,1128 (1969). In equity, the pleading rules were different: The plaintiffs initial filing-called the "bill"-had to "tell the entire story" of why the defendant's action was unlawful and why an equitable remedy was needed.
78. Id. at 1129. Thus, in some, but not all, circumstances, a plaintiff in equity would be able to state his constitutional issue on the face of his initial filing even though he could not have done so had the action been one at law.
79. See Collins, supra note 28, at 1517. This difference in pleading conventions muffled to some extent the impact of the wellpleaded complaint rule on cases in equity before equity was merged with law.
80. In the nineteenth and early twentieth centuries, if a government officer injured an individual, that injury was understood in terms of one of the familiar common law forms of action like trespass and thus was viewed primarily as a creation of state law, with federal issues arising as a response to a defense of immunity. See Collins, supra note 28, at 1510-11.
81. The notion was that if an official acted unconstitutionally, he could not take advantage of the defense of official justification. Id. Over time, courts gradually came to view cases involving claims about the unconstitutionality of an official's action as grounded in federal, not just state, law.
82. See Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 COLUM. L. REV. 489, 523-24 (1954) (discussing the "almost imperceptible steps" by which courts came to think of the source of law of a plaintiffs suit against a federal officer as federal law, rather than state law). By the time of Bivens, the right to be free from unreasonable searches and seizures was seen not as derived from and limited by the scope of state trespass and battery law, but as having an independent source in the Constitution itself.
83. See Bivens, 403 U.S. at 392;
84. id. at 400 & n.3 (Harlan, J., concurring).
85. See Tennessee v. Union & Planters' Bank, 152 U.S. 454, 464 (1894) (precluding removal based on a federal defense or reply).
86. See Hill, supra note 41, at 1130.
87. 114 U.S. 307, 308 (1885).
88. Id.
89. Id.
90. see also Carter v. Greenhow, 114 U.S. 317,321-23 (1885) (holding that a plaintiff could not file suit in federal court under the precursor to § 1983 to recover damages for a state official's impairment of his rights under the Contracts Clause, but that § 1331 would allow suit so long as the amount-in-controversy requirement was met).
91. The courts also granted legal remedies other than damages for constitutional violations. For example, in United States v. Lee, 106 U.S. 196, 218 (1882), the Supreme Court held that the federal courts could entertain landowners' suit for ejectment, a common-law remedy, to recover possession of a parcel of land from the government, because the plaintiffs had stated a right "of that character which it is intended the courts shall enforce."
92. See abo Patton v. Brady, 184 U.S. 608, 610-12 (1902) (approving the exercise of jurisdiction over an individual's suit to recover, via suit for assumpsit, the amount of tax taken from him pursuant to an allegedly unconstitutional state statute).
93. 290 U.S. 13 (1933).
94. In Jacobs, the Court held that the Tucker Act provided jurisdiction over the United States by providing the sovereign's consent to be sued, but it did not provide the cause of action. Instead, "the right to recover just compensation for property taken by the United States for public use in the exercise of its power of eminent domain . . . rested upon the Fifth Amendment. Statutory recognition was not necessary." Jacobs, 290 U.S. at 16.
95. Id.
96. 179 U.S. 58 (1900).
97. Id. at 62
98. see id. at 6465 (noting that the source of jurisdiction for an action brought against state election officials was federal question jurisdiction)
99. see also Lane v. Wilson, 307 U.S. 268 (1939) (allowing a damages remedy for a Fifteenth Amendment violation)
100. Giles v. Harris, 189 U.S. 475, 485-86,488 (1903) (holding that, even assuming that a state restriction on voter registration violated the Fifteenth Amendment, a federal court may not grant specific performance relief against state election officials to enforce a petitioner's political rights, but leaving open the possibility that action at law for damages could proceed on the same facts)
101. Swafford v. Templeton, 185 U.S. 487, 492-93 (1902) (confirming that federal courts had jurisdiction over right-to-vote claims under Article I, § 2).
102. 327 U.S. 678 (1946).
103. On the meaning of the phrase "cause of action," see note 95, infra.
104. 327 U.S. at 684.
105. On remand, the Southern District of California issued a muddled opinion in which it found no constitutional cause of action. Interestingly, the district court suggested that the result would have been different had the action been in equity rather than at law: "If, before defendants committed the alleged acts complained of, plaintiffs here had commenced a suit in equity alleging that defendants were threatening to make unreasonable searches and seizures and to imprison plaintiffs falsely, this court would clearly have had the power to issue an injunction restraining defendants from exceeding the limits of their authority as federal officers." Bell v. Hood, 71 F. Supp. 813, 818-19 (S.D. Cal. 1947).
106. It did not follow, however, that "there is a federal cause of action at law for damages after the threat has become a reality." Id.
107. 403 U.S. 388 (1971).
108. 403 U.S. at 410 (Harlan, J., concurring)
109. see also Susan Bandes, Reinventing Bivens: The Self-Executing Constitution, 68 S. CAL. L. REV. 289, 295 (1995) (discussing the factual background of Bivens).
110. Bivens, 403 U.S. at 392 (emphasis added).
111. Id. at 397
112. see Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163 (1803) ("[W]here there is a legal right, there is also a legal remedy...." (quoting WILLIAM BLACKSTONE, 3 COMMENTARIES ON THE LAWS OF ENGLAND 23 (Oxford, Clarendon Press 1768))
113. see also Bell, 327 U.S. at 684 ("[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to grant the necessary relief." (citing Marbury, 5 U.S. (1 Cranch) at 162, 163)).
114. Bivens, 403 U.S. at 396 (alteration in original) (citation omitted) (quoting Bell, 327 U.S. at 684).
115. Id. (first alteration in original) (emphasis added) (quoting Bell, 327 U.S. at 684).
116. 327 U.S. 678 (1946).
117. See Bd. of Comm'rs of Jackson County v. United States, 308 U.S. 343,349-53 (1939)
118. Dooley v. United States, 182 U.S. 222, 224-25 (1901).
119. Bivens, 403 U.S. at 397 (citing J.I. Case Co. v. Borak, 377 U.S. 426, 433 (1964), which held that a stockholder harmed by an unlawful merger had a federal cause of action for rescission or damages under the Securities Exchange Act even though the Act did not so specify).
120. Borak, 377 U.S. at 433.
121. The earliest appellate court usage of the phrase "implied cause of action" of which I am aware was in Petition of Kinsman Transit Co., 338 F.2d 708, 718 (2d Cir. 1964), which considered but declined to decide whether a federal regulation governing the operation of drawbridges on navigable waterways "creat[ed] by implication a cause of action" for a party whose ship was damaged by negligent operation.
122. The Supreme Court did not use the term until Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 734 n.6 (1975), a case in which the Court "expressed] ... no opinion" on whether section 17(a) of the Securities Exchange Act "gives rise to an implied cause of action."
123. See supra note 12.
124. 441 U.S. 677 (1979).
125. Cannon, 441 U.S. at 730-49 (Powell, J., dissenting) (arguing against finding implied causes of action in federal statutes "absent the most compelling evidence that Congress in fact intended such an action to exist").
126. 532 U.S. 275 (2001) (holding that there is no implied cause of action to enforce regulations enacted pursuant to Title VI of the Civil Rights Act of 1964).
127. Id. at 286-93 (looking only to the "text and structure of Title VI" to "determine whether it displays an intent to create not just a private right but also a private remedy").
128. See supra Part I.B.
129. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 402-03 (1971) (Harlan, J., concurring).
130. Id. at 404 (emphasis added).
131. Id. at 405.
132. Id. at 399 (explaining that damages are a "traditional judicial remedy")
133. see also id. at 395-96 (majority opinion) (discussing damages as an "ordinary remedy").
134. Id. at 407 (Harlan, J., concurring).
135. 442 U.S. 228 (1979).
136. Id. at 241-42.
137. Id. at 242, 246-47 (emphasis omitted) (quoting Bivens, 403 U.S. at 397).
138. Schweiker v. Chilicky, 487 U.S. 412, 421 (1988).
139. See Hartman v. Moore, 547 U.S. 250 (2006) (allowing a manufacturer to sue a federal prosecutor and postal inspectors for prosecuting him in retaliation for his lobbying efforts, in violation of the First Amendment)
140. Carlson v. Green, 446 U.S. 14 (1980) (allowing suits by prisoners against federal prison officials for the denial of medical care in violation of the Eighth Amendment)
141. Davis, 442 U.S. 228.
142. See, e.g, Schweiker, 487 U.S. 412 (1988) (refusing to permit damages action under the Fifth Amendment's Due Process Clause by recipients of disability benefits against Social Security Administration officials)
143. United States v. Stanley, 483 U.S. 669 (1987) (refusing to permit damages action by members of the armed forces against superiors for nonconsensual medical experimentation)
144. Bush v. Lucas, 462 U.S. 367 (1983) (refusing to permit damages action by a federal civil servant under the First Amendment)
145. Chappell v. Wallace, 462 U.S. 296 (1983) (refusing to permit damages action by members of the armed forces against their superiors for racial discrimination).
146. Schweiker, 487 U.S. 412.
147. Id. at 425-26.
148. Id. at 423.
149. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring).
150. Malesko, 534 U.S. 61.
151. Id. at 67 n.3 (majority opinion);
152. id. at 75 (Scalia, J., concurring).
153. Id. at 75 (emphasis added).
154. Although the diversity of interests and concerns in Congress may lead to a carefully balanced agreement as to what specific remedies should be available for a statutory violation, that diversity can lead just as easily to intentionally vague statutory language, leaving courts to work out the details.
155. See, e.g.. Rosado v. Wyman, 397 U.S. 397, 412 (1970) (Harlan, J., concurring) ("Congress, as it frequently does, has voiced its wishes in muted strains and left it to the courts to discern the theme in the cacophony of political understanding.").
156. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 430 (1971) (Blackmun, J., dissenting)
157. see also id. at 428 (Black, J., dissenting)
158. id. at 412, 422 (Burger, C.J., dissenting).
159. See JOHN NORTON POMEROY, CODE REMEDIES §§ 347-49, at 460-66 (4th ed. 1904).
160. FED. R. CIV. P. 8(a)(2).
161. See, e.g., Davis v. Passman, 442 U.S. 228, 237-38 (1979) (quoting Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 693 (1949));
162. see Larson, 337 U.S. at 693 ("It is a prerequisite to the maintenance of any action for specific relief that the plaintiff claim an invasion of his legal rights, either past or threatened. He must, therefore, allege conduct which is 'illegal'.... If he does not, he has not stated a cause of action.").
163. 304 U.S. 64, 78 (1938).
164. United States v. Standard Oil Co. of Cal., 332 U.S. 301, 307 (1947).
165. 446 U.S. 14 (1980).
166. Id. at 38 (Rehnquist, J., dissenting).
167. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring).
168. See Erie, 304 U.S. at 78 ("Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State.").
169. In other words, the concepts of "federal common law" and of "federal general common law" differ, and Erie abolished only the latter.
170. See, e.g., Martha A. Field, Sources of Law: The Federal Common Law, 99 HARV. L. REV. 881, 908 (1986);
171. William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 HARV. L. REV. 1513, 1521-25 (1984). In fact, the Court decided a case based on federal common law while it was considering Erie.
172. See Henry J. Friendly, In Praise of Erie-And of the New Federal Common Law, 39 N.Y.U. L. REV. 383, 388 n.24 (1964).
173. Erie, 304 U.S. at 74.
174. 451 U.S. 77 (1981).
175. Id. at 95 (internal quotations omitted).
176. Northwest Airlines, 451 U.S. at 97.
177. Parallel to its trend of restricting federal courts' ability to provide damages remedies, the Supreme Court has also made some less dramatic, though still significant, restrictions on the federal courts' powers in equity. In a 1999 case, Grupo Mexicano de Desarrollo, S.A. v. Alliance Bond Fund, Inc., 527 U.S. 308 (1999), the Court imposed a potentially farreaching limitation on the federal courts' remedial powers in equity: Grupo Mexicano held that federal courts lack the power to provide the relief the plaintiffs sought-a preliminary injunction freezing the assets of the defendant, an unsecured creditor, while they pursued a damages action for breach of contract-because such freeze orders were not among the remedies that courts in equity granted in 1789.
178. Id. at 332-33. Grupo Mexicano's impact is still unclear, but its reasoning could well limit the relief available in federal court for constitutional claims.
179. See Judith Resnik, Constricting Remedies: The Rehnquist Judiciary, Congress, and Federal Power, 78 IND. L.J. 223, 252-53 (2003). Similarly, in 2002, the Court held in Great-West Life & Annuity Insurance Co. v. Knudson, 534 U.S. 204 (2002), that ERISA's express authorization of "appropriate equitable relief " did not permit courts to grant an injunction for specific performance of a contract to pay damages, because such a remedy was not "typically available" in equity.
180. Id. at 209-11 (internal quotation marks and citation omitted).
181. See generally John H. Langbein, What ERISA Means by "Equitable": The Supreme Court's Trail of Error in Russell, Mertens, and Great-West, 103 COLUM. L. REV. 1317 (2003).
182. See Dellinger, supra note 32, at 1557 (" '[T]here can be no legal right against the authority that makes the law upon which the right depends.' But in a constitutional case, the right involved does not 'depend' upon the government, but rather arises from the basic law which created and seeks to control that government." (quoting Kawananakoa v. Polyblank, 205 U.S. 349, 353 (1907)).
183. ANNALS OF CONG. 439 (Joseph Gales ed., 1834); Letter from James Madison to Edmund Randolph (May 31, 1789), in 5 THE WRITINGS OF JAMES MADISON, 1787-1790, at 385 (Gaillard Hunt ed., 1904).
184. Cannon v. Univ. of Chi., 441 U.S. 677, 733 n.3 (Powell, J., dissenting).
185. Richard H. Fallon, Jr. & Daniel J. Meltzer, New Law, Non-Retroactivity, and Constitutional Remedies, 104 HARV. L. REV. 1731, 1779 (1991).
186. See also Dellinger, supra note 32, at 1542 (arguing that, given the courts' routine creation of damages remedies at common law, "it is not unreasonable to presume that the judicial power would encompass such an undertaking on the part of the federal courts, unless there were some contrary indication that the judicial implementation of such a remedy was not to be a part of the [A]rticle III judicial power" (citation omitted));
187. Resnik, supra note 106, at 238-39 (noting that "courts-unlike some other institutions created by the Constitution-were familiar to the Framers through [their] experiences with English, colonial, and fledgling state courts," and that the text of Article III did not "generate a novel iteration of courts with practices and remedial authority radically divergent from [those] other jurisdictions' courts").
188. See, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (spelling out modern constitutional standing doctrine).
189. See Resnik, supra note 106, at 240 ("The constitutional charter for 'courts' with jurisdiction 'in law and equity' can thus be read to authorize institutions that have the capacity to respond to changing demands, so long as federal courts work within the boundaries of their subject matter authority.").
190. See, e.g., Gade v. Nat'l Solid Wastes Mgmt. Ass'n, 505 U.S. 88 (1992) (exercising jurisdiction over a business association's claim that Illinois's licensing requirements for hazardous waste handlers were preempted by the federal Occupational Safety and Health Act);
191. Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190 (1983) (exercising jurisdiction over a utility's claim that California's disposal requirements for nuclear power plants were preempted by the federal Atomic Energy Act);
192. Ray v. AtI. Richfield Co., 435 U.S. 151 (1978) (exercising jurisdiction over a claim that a Washington state law regulating the design, size, and movement of oil tankers in Puget Sound was preempted by the federal Ports and Waterways Safety Act);
193. FIa. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132 (1963) (exercising jurisdiction over Florida avocado growers' claim that a California statute gauging avocado maturity was preempted by applicable federal regulations);
194. see also RICHARD H. FALLON, JR. ET AL., HART & WECHSLER'S THE FEDERAL COURTS & THE FEDERAL SYSTEM 903 (5th ed. 2003) (describing "the rule that there is an implied right of action to enjoin state or local regulation that is preempted by a federal statutory or constitutional provision" as "wellestablished").
195. 463 U.S. 85 (1983).
196. Id. at 96 n.14.
197. See supra Part I.B.
198. 535 U.S. 635 (2002).
199. Id. at 642. Nor did Verizon rely on §1983 for a cause of action. Invoking §1983 as the basis for suit would have entailed some complexities peculiar to §1983 litigation, including the requirement that a §1983 plaintiff must assert a "violation of a federal right, not merely a violation of federal law." Blessing v. Freestone, 520 U.S. 329, 340 (1997) (citing Golden State Transit Corp. v. Los Angeles, 493 U.S. 103,106 (1989)). The question then would have become whether the Telecommunications Act or the Supremacy Clause can be said to create such a right.
200. See David Sloss, Constitutional Remedies for Statutory Violations, 89 IOWA L. REV. 355, 411 (2004).Notably, the "rights-creating language" requirement that now applies in the §1983 context has never been applied to direct constitutional causes of action nor could it be without unsettling decades of Supreme Court and lower federal court law.
201. See, e.g., Indep.Living Ctr. of S. Cal., Inc. v. Shewry, 543 F.3d 1050, 1058-59 (9th Cir. 2008) (exercising jurisdiction over a suit brought by health care providers and Medicaid beneficiaries, who alleged that state medical cuts were preempted by federal Social Security Act);
202. Qwest Corp. v. City of Santa Fe, 380 F.3d 1258, 1266 (10th Cir. 2004) (exercising jurisdiction over plaintiff's claim that a local ordinance was preempted by the federal Telecommunications Act, even though the federal act did not create a private cause of action);
203. Local Union No. 12004, United Steelworkers of America v. Massachusetts, 377 F.3d 64, 75 (1st Cir. 2004) (holding that "in suits against state officials for declaratory and injunctive relief, a plaintiff may invoke the jurisdiction of the federal courts by asserting a claim of preemption, even absent an explicit statutory cause of action");
204. Ill. Ass'n of Mortgage Brokers v. Office of Banks & Real Estate, 308 F.3d 762, 764-65 (7th Cir. 2002) (exercising jurisdiction over a mortgage lenders' association's claim that state regulations were preempted by the federal Home Ownership and Equity Protection Act);
205. St. Thomas-St. John Hotel & Tourism Ass'n v. Government of the U.S. Virgin Islands, 218 F.3d 232, 241 (3d Cir. 2000) (holding that "a state or territorial law can be unenforceable as preempted by federal law even when the federal law secures no individual substantive rights for the party arguing preemption");
206. Village of Westfield v. Welch's, 170 F.3d 116,124 n.4 (2d Cir. 1999) (noting that the existence of a cause of action under the Supremacy Clause "do[es] not depend on the existence of a private right of action under the [preempting statute]");
207. Burgio &, Campofelice, Inc. v. N.Y. State Dep't of Labor, 107 F.3d 1000, 1005-07 (2d Cir. 1997) (holding that a plaintiff could bring an ERISA preemption claim under the Supremacy Clause, even though it was "beyond dispute" that the plaintiff fell outside ERISA's express enforcement provisions);
208. First Nat'l Bank of E. Ark. v. Taylor, 907 F.2d 775, 776 n.3 (8th Cir. 1990) (noting Supreme Court has made clear party may bring federal suit based on preemption and exercising jurisdiction over a bank's claim that a state insurance department's action was preempted by the federal National Bank Act).
209. Verizon, 535 U.S. at 642 (quoting Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14 (1983)).
210. See also Sloss, supra note 119, at 392 ("As is typical in Shaw preemption cases, the courts simply assumed the availability of a private cause of action, without questioning the source of that right of action.").
211. See sources cited supra note 114;
212. see also Lawrence County v. Lead-Deadwood Sch. Dist. No. 40-1, 469 U.S. 256, 259 n.6 (1985) (describing Shaw as "reaffirming the general rule" that a plaintiff claiming that a state law is preempted under the Supremacy Clause has stated a federal claim for injunctive relief).
213. 498 U.S. 439, 451 (1991). Importantly, it appears evident that the plaintiffs argument in Dennis that §1983 was an available basis for suit was not motivated by any doubt that he could have brought suit directly under the Commerce Clause. Rather, the pivotal issue in Dennis was the availability of attorney's fees. If the suit could proceed under §1983, then fees would be available under 42 U.S.C. §1988.
214. Id. at 464 (Kennedy, J., dissenting) (arguing that "the significance of the Court's decision, in this and future Commerce Clause litigation, is that a §1983 claim may permit dormant Commerce Clause plaintiffs to recover attorney's fees and expenses ... .").
215. 432 U.S. 333, 352-53 (1977). Other examples of such cases are Granholm v. Heald, 544 U.S. 460, 476 (2005);
216. Kassel v. Consolidated Freightways Corp. of Delaware, 450 U.S. 662, 678-79 (1981);
217. and Raymond Motor Transportation, Inc. v. Rice, 434 U.S. 429, 447 (1978).
218. 467 U.S. 82, 87 (1984) (emphasis added).
219. 496 U.S. 18, 51 (1990).
220. 550 U.S. 124, 168 (2007).
221. 545 U.S. 1, 7-9 (2005) (rejecting the claim that a ban on home-grown marijuana is violative of the Commerce Clause).
222. For example, in Hein v. Freedom from Religion Foundation, Inc., 127 S.Ct. 2553 (2007), the Court recognized that the Establishment Clause creates a cause of action permitting a taxpayer to sue for injunctive relief but emphasized that plaintiffs must still satisfy the requirements of Article III standing.
223. See supra note 119 (regarding the need to show "rights-creating language" in §1983 cases).
224. 503 U.S. 60, 65-66 (1992). See also Dellinger, supra note 32, at 1543 ("It may well be true that the considerations governing a decision to create a damage remedy will differ from those respecting the granting of injunctive relief; this goes to the appropriateness of the remedy created, however, and not to the Court's remedial power.").
225. Franklin, 503 U.S. at 66.
226. Id.
227. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 402-03 (1971) (Harlan, J., concurring);
228. Bell v. Hood, 327 U.S. 678 (1946).
229. See Bivens at 395 ("Historically, damages have been regarded as the ordinary remedy for an invasion of personal interests in liberty.");
230. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 749 (1824) ("All the cases where injunctions have been granted, to protect parties in the enjoyment of a franchise, proceed upon the principle, that the injury was consequential, not direct, and that it would be difficult, if not impossible, to estimate the damages.");
231. JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE AS ADMINISTERED IN ENGLAND AND AMERICA §§26-30, 44 (Boston, Little, Brown & Co. 1861) (explaining that equitable relief was available to litigants who faced a threat of irreparable harm but who, because of the common-law writ system's rigidity, could not obtain relief in courts at law).
232. Gene R. Nichol, Bivens, Chilicky, and Constitutional Damages Claims, 75 VA. L. REV. 1117, 1135 (1989);
233. see also Al Katz, The Jurisprudence of Remedies: Constitutional Legality and the Law of Torts in Bell v. Hood, 117 U. PA. L. REV. 1, 43 (1968) ("It is an historical anomaly that the ordinary remedy of damages has become extraordinary.").
234. Fallon & Meltzer, supra note 111, at 1787.
235. See generally Fletcher, supra note 32 (discussing institutional suits and injunctions).
236. See Gonzales v. Carhart, 550 U.S. 124, 167-68 (2007) ("The latitude given facial challenges in the First Amendment context is inapplicable [in the context of a challenge to a federal abortion statute]. Broad challenges of this type impose a heavy burden upon the parties maintaining the suit[, requiring at the least that] the Act would be unconstitutional in a large fraction of relevant cases.");
237. see also Wash. State Grange v. Wash. State Republican Party, 128 S.Ct. 1184, 1190-91 (2008) (rejecting facial challenge to Washington blanket primary system);
238. Pamela S. Karlan, The Law of Small Numbers: Gonzales v. Carhart, Parents Involved in Community Schools, and Some Themes from the First Full Term of the Roberts Court, 86 N.C. L. REV. 1369, 1373-74 (2008) (discussing the Supreme Court's resistance to facial challenges).
239. See supra notes 87-90 and accompanying text.
240. Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 407 (1971) (Harlan, J., concurring).
241. See FDIC v. Meyer, 510 U.S. 471,486 n.ll (1994) (noting that "Congress has considered several proposals that would have created a Bivens-type remedy directly against the Federal Government" and collecting proposed bills from the 1970s and 1980s).
242. Bivens, 403 U.S. at 407-08 (Harlan, J., concurring).
243. See City of Los Angeles v. Lyons, 461 U.S. 95 (1983). In Lyons, a Los Angeles resident sought injunctive relief from being subjected in the future to the L.A. police department's practice of using chokeholds. Based on a narrow reading of the traditional requirements for relief in equity-the threat of an irreparable injury and the lack of an adequate remedy at law-the Court ordered Lyons's claim dismissed because it was not clear that he personally stood to be subjected to a chokehold again in the future.
244. Id. at 111.
245. 550 U.S. 124,189 (Ginsburg, J., dissenting) ("Surely the Court cannot mean that no suit may be brought until a woman's health is immediately jeopardized .... A woman suffering from medical complications needs access to the medical procedure at once and cannot wait for the judicial process to unfold.") (internal quotations and citations omitted).
246. See Fallon & Meltzer, supra note 111, at 1789-90.
247. Brennan, supra note 2, at 552.
248. ANNALS OF CONG. 439 (Joseph Gales ed., 1834) (quoting James Madison in 1789).