Today, I'm sure most Supreme Court watchers are cracking Allen v. Milligan or downing Jack Daniel's v. VIP. Fair enough. But the most significant writing to emanate from the Court today was Justice Thomas's dissent in Health and Hospital Corporation of Marion County v. Talevski. The facts are, well, boring: can a citizen sue a county-owned nursing home under 42 U.S.C. §1983 for violating the Federal Nursing Home Reform Act. Section 1983 provides a cause of action when a state actor deprives a person of "any rights . . . secured by the Constitution and laws." FNHRA is spending legislation, in which the federal government offers money to the states with certain conditions. Is FNHRA a "law" for purposes of Section 1983?
Eight members of the Court found that the FNHRA was a "law" for purposes of Section. Justice Gorsuch wrote a brief concurrence that questioned "whether legal rights provided for in spending power legislation like the [FNHRA] are 'secured' as against States." Gorsuch also questioned the relationship between such spending legislation and the Constitution's anti-commandeering doctrine. But Gorsuch found that the Petitioners "failed to develop fully" those arguments.
Justice Thomas, however, wrote a thirty-five page dissent that thoroughly addressed both issues. Here is Thomas's introduction, which sketches the argument:
