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the policy discretion to determine how best to enforce the statute it has been
explicitly authorized to implement.
In the first case, Alexander v. Sandoval, the Supreme Court addressed
implied causes of action rather than “rights” created for the purposes of §
1983, 260 but its reasoning is relevant here. The Court emphasized the central
role congressional intent plays when determining whether an implied cause
of action is available. 261 The Sandoval Court essentially created a clear
statement rule for implied statutory causes of action. 262 It held that a statute,
not a regulation, must contain specific “rights-creating” language in order
to imply a cause of action. 263 The Court concluded that regulations, even if
they contain explicit rights-creating language, could not be enforced
through an implied cause of action because regulations are not evidence of
Congressional intent. 264 Because the case addressed only implied causes of
action, the Sandoval Court did not resolve whether the holding applied extended to cases brought under § 1983.265 But in Gonzaga, the Supreme
Court rejected any sharp distinction between implied rights of action cases
and § 1983 cases, stating:
[w]e have recognized that whether a statutory violation may be enforced
through § 1983 ‘is a different inquiry than that involved in determining
whether a private right of action can be implied from a particular statute’ . . . But the inquiries overlap in one meaningful respect—in either
case we must first determine whether Congress intended to create a federal right. 266
Gonzaga emphasizes the centrality of congressional intent in the context
of § 1983 and therefore casts doubt on the ability for regulations to establish a right enforceable through § 1983.
In the circuits that rejected the ability of regulations to create enforceable
cannot be used to enforce regulations); Smith v. Kirk, 821 F.2d 980 (4th. Cir. 1987) (same).
260. Sandoval, 532 U.S. at 291.
261. See Sandoval, 532 U.S. at 286–89.
262. Id. at 288 (“We therefore begin (and find that we can end) our search for Congress’s intent with the text and structure of Title VI. . . . It is immediately clear that the
“rights-creating” language . . . is completely absent.”).
263. Id. at 291.
264. Id. (“Language in a regulation may invoke a private right of action that Congress
through statutory text created, but it may not create a right that Congress has not . . . [ I]t is
most certainly incorrect to say that language in a regulation can conjure up a private cause of
action that has not been authorized by Congress. Agencies may play the sorcerer’s apprentice but not the sorcerer himself.”).
265. Sandoval, 532 U.S. at 291.
266. Gonzaga Univ. v. Doe, 536 U.S. 273, 283 (2002); see also Alexander v. Sandoval,
532 U.S. 275, 285 (2001) (“ A court’s role in discerning whether personal rights exist in the
§ 1983 context should therefore not differ from its role in discerning whether personal rights
exist in the implied right of action context.”).