# Dennis v. Higgins

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## Dissenting Opinion

    Kennedy
United States Supreme Court
498 U.S. 439
Dennis v. Higgins
No. 89-1555 Argued: Oct. 31, 1990. --- Decided: Feb 20, 1991
Syllabus
Petitioner motor carrier filed suit in a Nebraska trial court, claiming, inter alia, that certain "retaliatory" taxes and fees the State imposed on motor carriers and vehicles such as his, which are registered in other States but operate in Nebraska, constituted an unlawful burden on interstate commerce and that respondents were liable under 42 U.S.C. § 1983. Among other things, the court concluded that the taxes and fees violated the Commerce Clause and permanently enjoined respondents from assessing, levying, or collecting them; but it dismissed petitioner's § 1983 claim. The State Supreme Court affirmed the dismissal, holding that there is no cause of action under § 1983 for Commerce Clause violations because the Clause allocates power between the State and Federal Governments and does not establish individual rights against the government.
Held: Suits for violations of the Commerce Clause may be brought under § 1983. Pp. 443-451.
(a) 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." It is also supported by § 1983's legislative history and by this Court's decisions, which have rejected attempts to limit the types of constitutional rights that are encompassed within the phrase "rights, privileges, or immunities," see, e.g., Lynch v. Household Finance Corp., 405 U.S. 538, 92 S.Ct. 1113, 31 L.Ed.2d 424. Pp. 443-446.
(b) The Commerce Clause confers "rights, privileges, or immunities" within the meaning of § 1983. In addition to conferring power on the Federal Government, the Clause is a substantive restriction on permissible state regulation of interstate commerce. And individuals injured by state action violating this aspect of the Clause may sue and obtain injunctive and declaratory relief. The three considerations for determining whether a federal statute confers a "right" within the meaning of § 1983-that the provision creates obligations binding on the governmental unit, that the plaintiff's interest is not too vague and amorphous to be beyond the judiciary's competence to enforce, and that the provision was intended to benefit the plaintiff-also weigh in favor of recognition of a right under the Clause. Respondents' argument that the Clause was not designed to benefit the individual has been implicitly rejected, Boston Stock Exchange v. State Tax Comm'n, 429 U.S. 318, 321, n. 3, 97 S.Ct. 599, 602, n. 3, 50 L.Ed.2d 514, and this Court's repeated references to "rights" under the Clause constitute a recognition that it was intended to benefit those who are engaged in interstate commerce, see, e.g., Crutcher v. Kentucky, 141 U.S. 47, 57, 11 S.Ct. 851, 853, 35 L.Ed. 649. Respondents' attempt to analogize the Commerce Clause to the Supremacy Clause, which does not confer "rights, privileges, or immunities" under § 1983, is also rejected. Unlike the Commerce Clause, the Supremacy Clause is not a source of federal rights but merely secures federal rights by according them priority when they come into conflict with state law. The fact that the protection from interference with trade conferred by the Commerce Clause may be qualified or eliminated by Congress does not mean that it cannot be a "right," for, until Congress does so, such protection operates as a guarantee of freedom for private conduct that the State may not abridge. Pp. 446-451.
234 Neb. 427, 451 N.W.2d 676 (1990), reversed and remanded.
WHITE, J., delivered the opinion of the Court, in which MARSHALL, BLACKMUN, STEVENS, O'CONNOR, SCALIA, and SOUTER, JJ., joined. KENNEDY, J., filed a dissenting opinion, in which REHNQUIST, C.J., joined, post, p. ----.
Richard A. Allen, Washington, D.C., for petitioner.
L. Jay Bartel, Lincoln, Neb., for respondents.
Justice WHITE delivered the opinion of the Court.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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