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Can Federal Agencies Authorize Private Suits under Section 1983 - A Theoretical Approach

By Brian Galle


This Article offers a few thoughts on the theory of regulatory enforcement under § 1983. Section 1983, I argue, itself authorizes federal agencies to make their regulations privately enforceable. In recent years, the Supreme Court has announced that federal norms are unenforceable in the absence of clear statutory authorization - a \u22clear statement rule\u22 for private rights of action. Drawing on key tenets of modern statutory interpretation, I claim that the plain text of § 1983 allows many federal regulations to meet this test. Because § 1983 has an important function in coordinating state regulatory efforts with federal law, a court approaching the words of the statute must have in mind both administrative law principles as well as the idea of \u22federalism,\u22 the notion that even in federally-initiated programs there should be policy-making space left for states to experiment and innovate. This Article argues that both factors weigh so clearly in favor of allowing federal agencies to designate their own regulations for private enforceability that any reasonable court reading § 1983 would presume that the word \u22laws\u22 includes regulations

Topics: regulatory enforcement, State and Local Government Law
Publisher: Scholarship @ GEORGETOWN LAW
Year: 2003
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