Section 1983 and Preemption: Alternative Means of Court Access for Safety Net Statutes

Abstract

While prior scholarship has noted changes in section 1983 jurisprudence, this article demonstrates that the current state of the law reflects the transformation of dissents, particularly the dissent written by Justice O'Connor in 1987, into a majority opinion in 2002. The hostility of several Justices to section 1983 can be traced to the policy arguments advanced by Justice Rehnquist in his dissents from the 1970s. The 35 years of acrimony over section 1983 contrast sharply with the harmony with which the Court has approached federal preemption, which has been acknowledged by numerous Justices, including Rehnquist and Kennedy, as a viable alternative to litigating under section 1983. Post-2002 cases from Courts of Appeals have embraced preemption as a vehicle for reaching the merits in safety net cases, including cases in which section 1983 does not provide a cause of action. This article also critiques the separate opinions of Justices Scalia and Thomas which have sought to limit the use of preemption to serve the interests of business and deny low-income individuals the full protection of federal law.

Keywords: section 1983, preemption, Medicaid, Supremacy Clause, safety net, Spending Clause