Can Federal Agencies Authorize Private Suits Under Section 1983?: A Theoretical Approach

Abstract

Since 1980, private suits brought under 42 U.S.C. Section 1983 have been a prime vehicle for enforcing federal statutory norms against state and local government. Federal regulations, however, affect a vast cross-section of state conduct not directly controlled by federal statutes. It is therefore surprising to discover that, notwithstanding some occasional acknowledgments of the considerable importance of the issue, there is almost no scholarly discussion concerning to what extent federal norms embodied in regulations can be enforced through private Section 1983 litigation. The federal Courts of Appeals are badly divided over the question, and no coherent rationale for one approach or the other has emerged. This Article attempts to fill the existing theoretical gap by beginning with first principles of statutory interpretation. I argue that we should read the word laws in Section 1983 in light of two important canons of construction, one favoring executive interpretations of the law, and the other, favoring federalism. Contrary to common assumptions about Section 1983, permitting federal agencies to authorize private suit will actually further state autonomy. Agency-authorized suits create space for collaboration between federal and state regulators, empowering the States, and enhance accountability of otherwise politically remote state bureaucrats in ways that APA or due-process challenges cannot. Finally, by shifting the forum for disputes from federal agency rank-and-file to state or federal court, Section 1983 litigation affords States the benefit of the Court's recent developments in sovereign immunity jurisprudence. Thus, when we read laws, we should presume that Congress intended to capture these benefits, and to allow federal agencies to authorize suits under Section 1983.