Topic: 42 U.S.C. 1983 - Right to Sue if Deprived of Constitutional or Federal
Statutes Rights ]
Senator: Feingold
Date: SEPTEMBER 13, 2005
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FEINGOLD: But, let me move on. As you know, 42 U.S.C. 1983 is a federal law that allows Americans to sue those who deprive them of their rights under the Constitution or federal statutes.
Section 1983 is a very important law because it has enabled individual whose are deprived of their rights to such things as Medicaid, public housing, child support enforcement and public assistance to enforce those rights in federal court.
FEINGOLD: And I'm a little concerned that you seem to consistently argue for making it harder to bring Section 1983 lawsuits. In briefs you have filed, you advanced a series of arguments to effectively reverse decades of Supreme Court decisions and restrict Americans' ability to enforce federal statutory rights under Section 1983.
As deputy solicitor general, you co-authored an amicus brief and argued in front of the Supreme Court in a case called Wilder v. Virginia Hospital Association.
You said that individual Medicaid providers should not be able to sue under Section 1983 to enforce a provision of the Medicaid statute which requires states to reimburse them for services at reasonable rates.
One of the arguments you made is that in order for a statutory right to be enforceable under Section 1983, the court must find that the Congress clearly intended, quote, "to authorize private enforcement of that right in federal court," unquote.
You repeated this argument in another case you later argued when you were in private practice, Gonzaga University v. Doe.
The Supreme Court rejected your arguments in Wilder and found that the Medicaid providers could sue. In the later Gonzaga case, the Supreme Court specifically rejected your argument and found that it was not necessary for plaintiffs in a 1983 case to show that Congress intended to create a private right of action to bring a lawsuit, since Section 1983 already supplies a cause of action.
What role did you play in deciding that the government would participate as amicus in the Wilder case? And what role did you play in developing the argument that it made? And did you agree with the position that the government took in the case?
ROBERTS: I'll answer the question, but before I do so, the position I advanced in the Gonzaga case prevailed.
The argument that we made on behalf of the university -- I was obviously representing the university's position -- and they prevailed before the Supreme Court.
In the Wilder case, the determination to participate as an amicus was made by the solicitor general, and I don't recall a particular role in that case. I worked on the brief; I presented the argument. We lost that case 5-4. It was a close issue.
All of these issues go to the question of what Congress intended to do. If Congress had spelled out whether or not a right should be enforceable in court, that is what the determination would be in court. These issues arise only because of confusion over whether or not Congress has spelled out that a right should be enforceable in federal court for damages or not.
ROBERTS: And in the Wilder case, the court determined 5-4 that the right should be enforceable in federal court. We were as an amicus supporting one of the states. I don't remember which one it was. And the state was making the argument that there is -- the right is -- the issue in all of these cases is whether the right should be enforceable administratively as opposed to...
FEINGOLD: Excuse me, I'm about to run out of time.
Let me point out that the Supreme Court did not accept the argument that the plaintiffs had to show that Congress intended to create a private right of action.
And I'm wondering now: Do you now agree with the argument that you've consistently made, both as a government lawyer in Wilder and while in private practice in Gonzaga, that individuals should not be able to sue under Section 1983 to enforce a right unless the Supreme Court finds that Congress clearly intended to authorize private enforcement of that particular right in federal court?
ROBERTS: Well, the Gonzaga decision, which there were various arguments made in the brief, the ruling of the court was in favor of the university that I was representing.
And the determination in the Gonzaga case about what should be shown and what has to be shown is one of the precedents of the court that I would follow as any other consistent with rules of stare decisis.
That's not an area in which I have any particular view.
I've argued both sides of that issue: on behalf of plaintiffs, argued in favor of it; and on behalf of defendants, against it.
Again, the issue is not the enforceability as in Gonzaga. The issue was: Should individuals be allowed to bring suit as opposed to action by, in that case, the Department of Education?
FEINGOLD: Thank you for your answers, Judge Roberts.
ROBERTS: Thank you, Senator.
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