# Dennis v. Higgins/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinion Kennedy
This case presents the question whether suits for violations of the Commerce Clause may be brought under 93 Stat. 1284, as amended, 42 U.S.C. § 1983. We hold that they may. I
Petitioner does business as an unincorporated motor carrier with his principal place of business in Ohio. He owns tractors and trailers that are registered in Ohio and operated in several States including Nebraska. On December 17, 1984, he filed a class-action suit in a Nebraska trial court challenging the constitutionality of certain "retaliatory" taxes and fees imposed by the State of Nebraska on motor carriers with vehicles registered in other States and operated in Nebraska. In his complaint, petitioner claimed, inter alia, that the taxes and fees constituted an unlawful burden on interstate commerce and that respondents were liable under 42 U.S.C. § 1983. Petitioner sought declaratory and injunctive relief, refunds of all retaliatory taxes and fees paid, and attorney's fees and costs.
After a bench trial based on stipulated facts, the court concluded that the taxes and fees at issue violated the Commerce Clause "because they are imposed only on motor carriers whose vehicles are registered outside the State of Nebraska, while no comparable tax or fee is imposed on carriers whose vehicles are registered in the State of Nebraska." App. to Pet. for Cert. 29a. It therefore permanently enjoined respondents from "assessing, levying, or collecting" the taxes and fees. Id., at 30a. The court also held that petitioner was entitled to attorney's fees and expenses under the equitable "common fund" doctrine. The court, however, entered judgment for respondents on the remaining claims, including the § 1983 claim. Petitioner appealed the dismissal of his § 1983 claim, and respondents cross-appealed the trial court's allowance of attorney's fees and expenses under the common fund doctrine. Respondents did not, however, appeal the trial court's determination that the retaliatory taxes and fees violated the Commerce Clause.
The Supreme Court of Nebraska affirmed the dismissal of petitioner's § 1983 claim, but reversed the trial court's allowance of fees and expenses under the common fund doctrine. See Dennis v. State, 234 Neb. 427, 451 N.W.2d 676 (1990). With respect to the § 1983 claim, the Nebraska Supreme Court held that "[d]espite the broad language of § 1983 . . . there is no cause of action under § 1983 for violations of the commerce clause." Id., at 430, 451 N.W.2d, at 678. The court relied largely on the reasoning in Consolidated Freightways Corp. of Delaware v. Kassel, 730 F.2d 1139 (CA8), cert. denied, 469 U.S. 834, 105 S.Ct. 126, 83 L.Ed.2d 68 (1984), which held that claims under the Commerce Clause are not cognizable under § 1983 because, among other things, "the Commerce Clause does not establish individual rights against government, but instead allocates power between the state and federal governments." 730 F.2d, at 1144.
As the Supreme Court of Nebraska recognized, see 234 Neb., at 430, 451 N.W.2d, at 678, there is a division of authority on the question whether claims for violations of the Commerce Clause may be brought under § 1983. We granted certiorari to resolve this issue, 495 U.S. 956, 110 S.Ct. 2559, 109 L.Ed.2d 741 (1990), and we now reverse. II
A broad construction of § 1983 is compelled by the statutory language, which speaks of deprivations of "any rights, privileges, or immunities secured by the Constitution and laws." (Emphasis added.) Accordingly, we have "repeatedly held that the coverage of [§ 1983] must be broadly construed." Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 105, 110 S.Ct. 444, 448, 107 L.Ed.2d 420 (1989). The legislative history of the section also stresses that as a remedial statute, it should be " 'liberally and beneficently construed.' " Monell v. New York City Dept. of Social Services, 436 U.S. 658, 684, 98 S.Ct. 2018, 2032, 56 L.Ed.2d 611 (1978) (quoting Rep. Shellabarger, Cong.Globe, 42d Cong., 1st Sess., App. 68 (1871)). As respondents argue, the "prime focus" of § 1983 and related provisions was to ensure "a right of action to enforce the protections of the Fourteenth Amendment and the federal laws enacted pursuant thereto," Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 611, 99 S.Ct. 1905, 1913, 60 L.Ed.2d 508 (1979), but the Court has never restricted the section's scope to the effectuation of that goal. Rather, we have given full effect to its broad language, recognizing that § 1983 "provide[s] a remedy, to be broadly construed, against all forms of official violation of federally protected rights." Monell, supra, 436 U.S., at 700-701, 98 S.Ct., at 2041. Thus, for example, we have refused to limit the phrase "and laws" in § 1983 to civil rights or equal protection laws. See Maine v. Thiboutot, 448 U.S. 1, 4, 6-8, 100 S.Ct. 2502, 2504, 2505-2506, 65 L.Ed.2d 555 (1980).
Even more relevant to this case, we have rejected attempts to limit the types of constitutional rights that are encompassed within the phrase "rights, privileges, or immunities." For example, in Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424 (1972), we refused to limit the phrase to "personal" rights, as opposed to "property" rights. We first noted that neither the words nor the legislative history of the statute distinguished between personal and property rights. Id., at 543, 92 S.Ct., at 1117. We also rejected that distinction because of the "virtual impossibility" of applying it, particularly in "mixed" cases involving both types of rights. Id., at 550-551, 92 S.Ct., at 1121. We further concluded that "the dichotomy between personal liberties and property rights is a false one. . . . The right to enjoy property without unlawful deprivation, no less than the right to speak or the right to travel, is in truth a 'personal' right, whether the 'property' in question be a welfare check, a home, or a savings account." Id., at 552, 92 S.Ct., at 1122. See also United States v. Price, 383 U.S. 787, 800-806, 86 S.Ct. 1152, 1160-1163, 16 L.Ed.2d 267 (1966).
Petitioner contends that the Commerce Clause confers "rights, privileges, or immunities" within the meaning of § 1983. We agree. The Commerce Clause provides that "Congress shall have Power . . . [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S.C.onst., Art. I, § 8, cl. 3. Although the language of that Clause speaks only of Congress' power over commerce, "the Court long has recognized that it also limits the power of the States to erect barriers against interstate trade." Lewis v. BT Investment Managers, Inc., 447 U.S. 27, 35, 100 S.Ct. 2009, 2015, 64 L.Ed.2d 702 (1980).
Respondents argue, as the court below held, that the Commerce Clause merely allocates power between the Federal and State Governments and does not confer "rights." Brief for Respondents 14-17. There is no doubt that the Commerce Clause is a power-allocating provision, giving Congress pre-emptive authority over the regulation of interstate commerce. It is also clear, however, that the Commerce Clause does more than confer power on the Federal Government; it is also a substantive "restriction on permissible state regulation" of interstate commerce. Hughes v. Oklahoma, 441 U.S. 322, 326, 99 S.Ct. 1727, 1731, 60 L.Ed.2d 250 (1979). The Commerce Clause "has long been recognized as a self-executing limitation on the power of the States to enact laws imposing substantial burdens on such commerce." South-Central Timber Development, Inc. v. Wunnicke, 467 U.S. 82, 87, 104 S.Ct. 2237, 2240, 81 L.Ed.2d 71 (1984). In addition, individuals injured by state action that violates this aspect of the Commerce Clause may sue and obtain injunctive and declaratory relief. See, e.g., McKesson Corp. v. Division of Alcoholic Beverages and Tobacco, Dept. of Business Regulation of Florida, 496 U.S. 18, 31, 110 S.Ct. 2238, 2247, 110 L.Ed.2d 17 (1990). Indeed, the trial court in the case before us awarded petitioner such relief, and respondents do not contest that decision. We have also recently held that taxpayers who are required to pay taxes before challenging a state tax that is subsequently determined to violate the Commerce Clause are entitled to retrospective relief "that will cure any unconstitutional discrimination against interstate commerce during the contested tax period." Id., at 51, 110 S.Ct., at 2258. This combined restriction on state power and entitlement to relief under the Commerce Clause amounts to a "right, privilege, or immunity" under the ordinary meaning of those terms.
The Court has often described the Commerce Clause as conferring a "right" to engage in interstate trade free from restrictive state regulation. In Crutcher v. Kentucky, 141 U.S. 47, 11 S.Ct. 851, 35 L.Ed. 649 (1891), in which the Court struck down a license requirement imposed on certain out-of-state companies, the Court stated: "To carry on interstate commerce is not a franchise or a privilege granted by the State; it is a right which every citizen of the United States is entitled to exercise under the Constitution and laws of the United States." Id., at 57, 11 S.Ct., at 853. Similarly, Western Union Telegraph Co. v. Kansas ex rel. Coleman, 216 U.S. 1, 26, 30 S.Ct. 190, 197, 54 L.Ed. 355 (1910), referred to "the substantial rights of those engaged in interstate commerce." And Garrity v. New Jersey, 385 U.S. 493, 500, 87 S.Ct. 616, 620, 17 L.Ed.2d 562 (1967), declared that engaging in interstate commerce is a "righ[t] of constitutional stature." More recently, Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 97 S.Ct. 599, 50 L.Ed.2d 514 (1977), held that regional stock exchanges had standing to challenge a tax on securities transactions as violating the Commerce Clause because, among other things, the exchanges were "asserting their right under the Commerce Clause to engage in interstate commerce free of discriminatory taxes on their business and they allege that the transfer tax indirectly infringes on that right." Id., at 320, n. 3, 97 S.Ct., at 602, n. 3.
Last Term, in Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 110 S.Ct. 444, 107 L.Ed.2d 420 (1989), we set forth three considerations for determining whether a federal statute confers a "right" within the meaning of § 1983:
"In deciding whether a federal right has been violated, we have considered [1] whether the provision in question creates obligations binding on the governmental unit or rather 'does no more than express a congressional preference for certain kinds of treatment.' Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 19 [101 S.Ct. 1531, 1541, 67 L.Ed.2d 694] (1981). [2] The interest the plaintiff asserts must not be 'too vague and amorphous' to be 'beyond the competence of the judiciary to enforce.' Wright v. Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 431-432 [107 S.Ct. 766, 774, 775, 93 L.Ed.2d 781] (1987). [3] We have also asked whether the provision in question was 'intend[ed] to benefit' the putative plaintiff. Id., at 430 [107 S.Ct., at 773]; see also id., at 433 [107 S.Ct., at 775] (O'CONNOR, J., dissenting) (citing Cort v. Ash, 422 U.S. 66, 78 [95 S.Ct. 2080, 2087, 45 L.Ed.2d 26] (1975)." Id., at 106, 110 S.Ct., at 448.
See also Wilder v. Virginia Hospital Assn., 496 U.S. 498, 509, 110 S.Ct. 2510, ----, 110 L.Ed.2d 455 (1990). Respondents do not dispute that the first two considerations weigh in favor of recognition of a right here, but seize upon the third consideration-intent to benefit the plaintiff-arguing that the Commerce Clause does not confer rights within the meaning of § 1983 because it was not designed to benefit individuals, but rather was designed to promote national economic and political union. Brief for Respondents 19-24.
This argument, however, was implicitly rejected in Boston Stock Exchange, supra, 429 U.S., at 321, n. 3, 97 S.Ct., at 603, n. 3, where we found that the plaintiffs were arguably within the "zone of interests" protected by the Commerce Clause. Moreover, the Court's repeated references to "rights" under the Commerce Clause constitute a recognition that the Clause was intended to benefit those who, like petitioner, are engaged in interstate commerce. The "[c]onstitutional protection against burdens on commerce is for [their] benefit. . . ." Morgan v. Virginia, 328 U.S. 373, 376-377, 66 S.Ct. 1050, 1053, 90 L.Ed. 1317 (1946). As Justice Jackson, writing for the Court, eloquently explained:
"Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality." H.P. Hood & Sons, Inc. v. Du Mond, 336 U.S. 525, 539, 69 S.Ct. 657, 665, 93 L.Ed. 865 (1949).
Respondents attempt to analogize the Commerce Clause to the Supremacy Clause, Brief for Respondents 17-18, which we have held does not by itself confer any "rights, privileges, or immunities" within the meaning of § 1983. See Golden State, supra, at 106, 110 S.Ct., at ----; Chapman, 441 U.S., at 613, 99 S.Ct., at 1913. The Supremacy Clause, however, is "not a source of any federal rights"; rather, it " 'secure[s]' federal rights by according them priority whenever they come in conflict with state law." Ibid. By contrast, the Commerce Clause of its own force imposes limitations on state regulation of commerce and is the source of a right of action in those injured by regulations that exceed such limitations.
Respondents also argue that the protection from interference with trade conferred by the Commerce Clause cannot be a "right" because it is subject to qualification or elimination by Congress. Brief for Respondents 21. That argument proves too much, however, because federal statutory rights may also be altered or eliminated by Congress. Until Congress does so, such rights operate as "a guarantee of freedom for private conduct that the State may not abridge." Golden State, supra, at 112, 110 S.Ct., at 452. The same is true of the Commerce Clause.
We conclude that the Supreme Court of Nebraska erred in holding that petitioner's Commerce Clause claim could not be brought under 42 U.S.C. § 1983. The judgment of the Supreme Court of Nebraska is therefore reversed, and the case is remanded for further proceedings not inconsistent with this opinion.
It is so ordered.
Justice KENNEDY, with whom The Chief Justice joins, dissenting.

## Notes

* ↑ The taxes and fees at issue were imposed pursuant to Neb.Rev.Stat. § 60-305.02 (1984), which has since been amended. The taxes and fees were considered "retaliatory" because they were imposed on vehicles registered in certain other States (Arizona, Arkansas, Idaho, Nevada, New York, Ohio, Oregon, Pennsylvania, and Wyoming) in an amount equal to the "third structure taxes" imposed by those States on Nebraska-registered vehicles. "Third structure taxes" are taxes and fees imposed in addition to registration fees and fuel taxes (so-called "first structure" and "second structure" taxes).
* ↑ Compare Kraft v. Jacka, 872 F.2d 862, 869 (CA9 1989); J & J Anderson, Inc. v. Erie, 767 F.2d 1469, 1476-1477 (CA10 1985); and Consolidated Freightways Corp. of Delaware v. Kassel, 730 F.2d 1139 (CA8), cert. denied, 469 U.S. 834, 105 S.Ct. 126, 83 L.Ed.2d 68 (1984), with Continental Illinois Corp. v. Lewis, 838 F.2d 457, 458 (CA11 1988), vacated on other grounds, 494 U.S. 472, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990); Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558, 562 (CA6 1982); and Kennecott Corp. v. Smith, 637 F.2d 181, 186, n. 5 (CA3 1980). See also Private Truck Council of America, Inc. v. Quinn, 476 U.S. 1129, 106 S.Ct. 1997, 90 L.Ed.2d 677 (1986) (WHITE, J., joined by Brennan and O'CONNOR, JJ., dissenting from denial of certiorari) (noting conflict of authority).
* ↑ Section 1983 provides:
* ↑ The dissent contends that the legislative history of § 1983 supports the proposition that § 1983 does not apply to constitutional provisions that allocate power. See post, at 454-457. That argument is untenable. The dissent chiefly relies upon a partial quotation of a statement made by Representative Shellabarger, one of the principal sponsors of the statute. In context, the statement reads:
* ↑ The statute at issue in Lynch was the jurisdictional counterpart to § 1983, 28 U.S.C. § 1343(3), which contains the same "rights, privileges, or immunities" phrase. Even the dissent in Lynch agreed "without reservation" that the phrase was not limited to violations of "personal" rights, but disagreed with the majority on a different issue. See 405 U.S., at 556, 92 S.Ct., at 1124.
* ↑ See, e.g., CTS Corp. v. Dynamics Corp. of America, 481 U.S. 69, 87, 107 S.Ct. 1637, 1648, 95 L.Ed.2d 67 (1987); Hughes v. Oklahoma, 441 U.S. 322, 326, 99 S.Ct. 1727, 1731, 60 L.Ed.2d 250 (1979); Great Atlantic & Pacific Tea Co. v. Cottrell, 424 U.S. 366, 370-371, 96 S.Ct. 923, 927-928, 47 L.Ed.2d 55 (1976); Cooley v. Board of Wardens of Port of Philadelphia, 12 How. 299, 318, 13 L.Ed. 996 (1852). These cases are distinguishable from cases involving assertions that state regulations of commerce directly conflict with federal regulations enacted under the authority of the Commerce Clause. An example of the latter is Gibbons v. Ogden, 9 Wheat. 1, 6 L.Ed. 23 (1824), in which the Court struck down a New York statute to the extent that it excluded federally licensed boats from operating in New York waters.
* ↑ See, e.g., Black's Law Dictionary 1324 (6th ed. 1990) (defining "right" as "[a] legally enforceable claim of one person against another, that the other shall do a given act, or shall not do a given act") (citing Restatement of Property § 1 (1936)). That the right at issue here is an implied right under the Commerce Clause does not diminish its status as a "right, privilege, or immunity" under § 1983. Indeed, we have already rejected a distinction between express and implied rights under § 1983 in the statutory context. "The violation of a federal right that has been found to be implicit in a statute's language and structure is as much a 'direct violation' of a right as is the violation of a right that is clearly set forth in the text of the statute." Golden State Transit Corp. v. Los Angeles, 493 U.S. 103, 112, 110 S.Ct. 444, 451, 107 L.Ed.2d 420 (1989).
* ↑ An additional reason why claims under the Supremacy Clause, unlike those under the Commerce Clause, should be excluded from the coverage of § 1983 is that if they were included, the "and laws" provision in § 1983 would be superfluous. See Golden State, 493 U.S., at 107, n. 4, 110 S.Ct., at 449, n. 4.
* ↑ In arguing that the Commerce Clause does not secure any rights, privileges, or immunities within the meaning of § 1983, the dissent relies upon Carter v. Greenhow, 114 U.S. 317, 5 S.Ct. 928, 29 L.Ed. 202 (1885). See post, at 457-458. This Court, however, has already given that decision a narrow reading, stating that the case "held as a matter of pleading that the particular cause of action set up in the plaintiff's pleading was in contract and was not to redress deprivation of the 'right secured to him by that clause of the Constitution' [the contract clause], to which he had 'chosen not to resort.' " Chapman v. Houston Welfare Rights Organization, 441 U.S. 600, 613, n. 29, 99 S.Ct. 1905, 1914, n. 29, 60 L.Ed.2d 508 (1979); see also Hague v. Committee for Industrial Organization, 307 U.S. 496, 527, 59 S.Ct. 954, 969, 83 L.Ed. 1423 (1939) (opinion of Stone, J.).
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